Jan 142011

As the recession bites and more and more of us are threatened with unemployment, Dianne Sutherland offers guidance on what you need to know if you’re a temporary or fixed term employee.

If you work for a local authority, you’ve probably come across the unfortunate term natural wastage.

It is a term that has become popular in the world of councilspeak, found in budget updates, press releases and at team discussions. It refers, in part, to the non-renewal of the contracts of fixed term and temporary workers and is proposed as a means towards meeting the huge savings imposed upon local authorities by central government budget cuts.

Aberdeenshire Council has been told to make savings of £52 million over the next few years, which equates to an estimated 10% loss in the workforce. There can be no doubt that natural wastage will impact heavily on the many fixed term workers in council posts. To highlight this point, a 2010 Aberdeenshire Council review of support for learning auxiliaries revealed that out of 1000 workers, or 475 full time equivalent posts, only 30% have a permanent contract. The remainder are either fixed term or relief contracts.

The good news is that legislation protects fixed term and temporary workers, under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. These regulations were introduced to comply with European Employment Law.

You should always seek professional advice, but here are a few pointers that might help if you find your job is under threat:

1. In most cases, if you have two years or more of continuous service you have a statutory right to redundancy. An employer or employee cannot waive this right since the implementation of the Regulations on October 1 2002.

2. Continuous service means service without a break by the same employer, it doesn’t matter if you have been employed in different posts, it is the continuity that counts, and there can even be a short break in the employment.

3. If you have a right to redundancy, you also have a right to redeployment. Check your employer’s policy on this. Your employer should redeploy you 12 weeks before the end of your contract. Written notice should be served at this time.

4. If you are made redundant you have an entitlement to time off to look for other work or to participate in training.

5. There is a limit to the period of time during which an employer can legitimately use fixed term contracts without providing justification for doing so.

Even if you have less than 2 years service, your employer must treat your dismissal fairly

If you have more than 4 years continuous service under a fixed term contract, you may have a right to permanent employment status unless your employer can objectively justify the continued use of fixed term contracts beyond the 4-year period.

You have a right to request a written statement on your employment status and your employer must provide this within 21 days. If you have worked under more than one contract, permanency takes effect at the 4-year point. If you have worked under the same contract for the 4-year period, permanency takes effect at the next contract renewal date. A recent landmark case further strengthened the position of fixed term workers when a tribunal ruled that the University of Aberdeen could not objectively justify the use of external funding to keep researcher Dr Andrew Ball as a fixed term employee, and his contract was made permanent.

6. External funding does not affect your relationship with your employer. It is your employer who has a duty to uphold your rights, not the funder.

7. Even if you have less than 2 years service, your employer must treat your dismissal fairly. Failure to do so can result in a claim for unfair dismissal. The Statutory Dispute Resolution Procedure applies to fixed term contracts. Failure by your employer to implement the correct procedure can be deemed unfair dismissal at an employment tribunal.

8. If you are unhappy with the way your employer is treating you, contact your trade union representative for advice. Raise the matter in writing in the first instance, but if this does not resolve the issue, you can raise a formal grievance. In some cases you may need to pursue an employment tribunal but you should explore all other avenues to resolve the situation first.

9. Finally, keep records of all communications with your employer. You will need to present evidence to support your case at either an official grievance hearing or at an employment tribunal. You will be able to call witnesses and may supply further written evidence to support your case.

Information on employment rights is available at www.direct.gov.uk/en/Employment/index.htm and on the Business Link website.

Free advice is available by telephone from ACAS and the Citizens Advice Bureau; many local authorities have Employee Assistance Programmes which can give independent advice. Some household insurance policies cover free limited legal advice and several legal firms provide a free initial advisory session. If you are not already a member, join a trade union, but ask around and get the best representation for your case.