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
- to ensure that fixed term workers are afforded no less favourable treatment than their comparable permanent counterparts and
- to prevent employers from abusing employees by employing them on a series of successive short fixed term contracts, rather than offering them permanent one.
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) provided three conditions are met:
- The contract was in writing
- 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
- 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.
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 first 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.
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
- It arises from a real need on behalf of the employer
- Is appropriate to achieve the objective
- 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:
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 the WRC 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.