The Remarkable Difference Between Fixed Term Contacts and Teachers’ Fixed Term Contracts

If I was working on a fixed term contract, and I wasn’t a teacher, I would be really incensed.

teachers-contracts
Teachers’ fixed term contracts are different

Let me explain.

In order for a worker on a fixed term contract to be entitled to a contract of indefinite duration-similar to a permanent contract-the law states that 2 conditions must be met.

Firstly, that I have been employed on at least 2 fixed term contracts.

And secondly, that I have at least 4 years continuous employment in the position. (Source: Protection of Employees (Fixed-Term Work) Act 2003).

But that’s not the case for teachers.

Because since December, 2013 teachers only required 3 years’ continuous service to qualify for a CID (Source: Circular letter 64/2013) .

And things are about to get better.

Expert Group Recommends Big Improvement for Teachers

Because this week a report by an “expert group”, chaired by Senior Counsel Peter Ward, established under the Haddington Road agreement to look at public sector pay and productivity promised to make life even better for teachers.

One of its recommendations is that teachers become entitled to a CID after only 2 years continuous service.

So an ordinary worker who isn’t a teacher needs 4 years continuous service to qualify for a CID. A teacher currently only needs 3 years and will only need 2 years from the beginning of the 2015 school year.

And it gets better for teachers.

Because one of the ways that an employer can prevent an employee from being entitled to a CID is if he can objectively justify the non awarding of a CID. One way this objective justification could arise is if the employee was covering or filling in for someone on a career break or secondment.

But thanks to the “expert group” this barrier won’t stand in the way of teachers.

Because they recommend:

“With regard to teachers covering for others on a career break or secondment, the report recommends that these individuals should not be disqualified from entitlement to a contract of indefinite duration on that ground.”

The law surrounding the entitlement to a contract of indefinite duration has been set out in Statute since 2003 with the Protection of Employees (Fixed Term Work) Act 2003. Remarkably this law hasn’t applied to teachers since December 2013.

Is this fair?

Is it moral?

Do teachers endure such ghastly working conditions compared to other workers that this non application of the law is justified?

It would be hard to make that argument for 3 reasons:

  1. A job for life
  2. A good pension
  3. Incredible holidays.

The Minister for Education (and former teacher), Jan O’Sullivan, has agreed to implement the recommendations of the expert group.

She will hardly meet with any resistance at the cabinet table from the Taoiseach or Minister for Finance who are both former teachers.

What do you think?

Fixed Term Contracts-The Facts You Should Know

fixed-term-contract

Fixed term employees are employed on the same type of contract-either a fixed term contract or a specified purpose contract.

A fixed term contract is one where the end date of the contract is known at the outset whereas a specified purpose contract is one which terminates on the occurrence of a specific event or cessation of a specific purpose.

The Employment Equality Acts apply to all employees, regardless of their length of service.

So fixed term employees are protected from indirect discrimination by virtue of their fixed term status.

The Protection of Employees (Fixed-Term work) act, 2003 offers significant protection to fixed term workers and the purpose of this legislation is

  1. to ensure that fixed term workers are no less favourable treatment than their comparable permanent counterparts and
  2. to prevent employers from abusing employees by employing them on a series of successive short fixed term contract.

Prior to this legislation fixed term employees were protected by the Unfair Dismissals Acts and the Employment Equality Acts.

A fixed term employee is defined in the Protection of Employees (Fixed-Term work) act, 2003 as:

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—
(a) employees in initial vocational training relationships or apprenticeship schemes, or
(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

 

However fixed term workers are excluded from the protection of the Unfair Dismissals Acts by virtue of the fact that the contract has come to an end (either by expiry of the term or the arrival of the specific purpose event) but only provided three conditions are met:

  1. The contract was in writing
  2. The contract states that the Unfair Dismissals act will not apply to a dismissal which occurs only as a result of the end of the contract arriving
  3. The contract was signed by both employee and employer.

It is worth noting that the Employment Appeals Tribunal (EAT) are quite strict on these conditions being met in order to avoid an unfair dismissal award being made against the employer.

The above exclusion does not apply to dismissal during the term of the fixed term contract, provided of course the employee has the necessary period of continuous service (1 year).

There is an anti-abuse provision in the Unfair Dismissals (Amendment) Act 1993  also which prevents the employer from giving the employee a series of fixed term contracts.

As an employee can also successfully claim for unfair dismissal if he/she has been employed on more than one fixed term contract and the gap between contracts is less than three months and the last contract was granted in an attempt to avoid liability under the Unfair Dismissals legislation.

Renewal of fixed term contracts

It has been held by the Labour Court that the non renewal of a fixed term contract will not, of itself, give rise to a claim of less favourable treatment under the act.

The Act also provides that where an employer proposes to renew a fixed term contract the employee shall be informed in writing, not later than the date of the renewal, of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration.

(See also contract of indefinite duration-are you entitled to one after successive contracts of employment?)

Successive fixed term contracts

Generally there is a limit of four years on the length of successive fixed term contracts with the same employer or associated employer.

However there is no limit on the duration of the 1st fixed term contract. This limitation of four years refers to “continuous employment”  in fixed term contracts and this definition has been well tested as to what is considered continuous and otherwise.

Section 9 deals with the definition of continuous employment within the context of the fixed term work act.

(Learn more about successive fixed term contracts and how the entitlement to a contract of indefinite duration can arise.)

Less favourable treatment and objective justification

Where an employee on a fixed term contract is treated less favourably than his permanent counterpart with respect to one term of his contract this can be objectively justified if

  1. It arises from a real need on behalf of the employer
  2. Is appropriate to achieve the objective
  3. Is necessary to achieve the objective.

Otherwise one of the main objectives of the legislation is to ensure that fixed term employees are given parity of treatment in respect of their conditions of employments as comparable permanent employees.

Section 5 of the Act defines what a comparable employee is:

5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—
(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.
(2) The following are the conditions mentioned in subsection (1)
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The Labour Court has held that a fixed term employee does not have an automatic right to have the contract renewed on its expiry and that the non renewal of a fixed term contract will not, of itself, constitute less favourable treatment within the meaning of section 6 of the Act.

Other obligations of employers re fixed term employees

Some other obligations of employers include

  • The employee must be notified in writing as soon as possible of the objective condition ending the contract. This may be arriving at a specific date or the occurrence of a specific event.
  • The employer must inform the employee of vacancies and training opportunities to avail of a permanent job should one arise.

Fixed term employees may make a complaint to a Rights Commissioner in the first instance should a breach of their rights occur; the next step would be and appeal to the Labour Court and then to the High Court (but only on a point of law). The time limit is 6 months or 12 months in exceptional circumstances.

Section 13 of the Act prohibits penalization of the employee by the employer for making a complaint.

Redundancy of fixed term workers

A fixed term employee may be redundant within the meaning of the Redundancy Payments Acts on the expiry and non renewal of his/her fixed term contract.