MANAGEMENT GUIDELINES
FIXED TERM CONTRACTS October 2014
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INTRODUCTION 1. The Trust uses fixed-term contracts of employment for employees to cover for a variety of circumstances including, but not limited to:
maternity/paternity/adoption or other extended periods of leave long term sickness to work on time specific projects, where there is limited funding available or a specific task needs to be completed.
2. These guidelines have been developed to ensure that the Trust complies with The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 & 2008, which place an obligation on the Trust to ensure that employees with fixed-term contracts are not treated less favourably than comparable permanent employees on the ground that the employee is a fixed-term employee, unless the less favourable treatment can be justified on objective grounds. In some circumstances, there will be a statutory requirement to follow a fair process before termination of employment at the expiry of a fixed-term contract. 3. Fixed-term contracts are defined as:
those that last for a specified period or, will end when a specified task has been completed or, a specified event does or does not happen.
4. However, fixed-term contracts should always have an end date and reason for the fixed term duration and not be vague, ambiguous or open to the wrong interpretation. It is strongly recommended that as well as providing for a notice period should the contract be terminated within the fixed term period, that the fixed term contract should also specify that it will terminate on expiry of the fixed term without the need for any further notice. Please communicate to the fixed term employee any uncertainties or decisions with regard to the outcome of renewed funding bids and any possible extensions to particular projects as soon as is possible. This communication should be confirmed in writing wherever possible. APPLICATION 5. These guidelines apply to all fixed term employees in the Trust, with the exception of workers and the self-employed and have been developed to ensure consistency, equality and fairness across all departments. EXCLUSIONS 6. The following groups are excluded from the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations: apprentices; employees on certain government training schemes;
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students on occupational placements of one year or less as a part of a higher educational programme; agency workers, that is those who have a contract with a temporary work agency, but are placed with and do their work for a third party; bank workers; secondments.
POLICY 7. In line with the Trust’s philosophy to encourage the retention of staff and its commitment to provide job security wherever possible, managers should not use fixed-term contracts of employment, unless they are absolutely necessary for an objective reason e.g. fixed-term contracts are not to be used as an alternative to recruiting someone to a permanent position to essentially “try someone out.” If a project has limited funding or is envisaged as being for only a limited period, this should be made clear in writing to the employee at the recruitment stage and also before an offer of employment is made. The fixed term employee must be made aware of how to access vacancies in the Trust. EQUAL TREATMENT 8. An employee with a fixed-term contract may not be treated less favourably because of fixed-term status, unless the employer can justify such treatment on objective grounds. An example of this may be if a comparable permanent employee is given a company car and the cost of doing so for a fixed-term employee would be disproportionate due to the short term nature of their employment. However, some alternative form of compensation or travel arrangements may be considered. In practice most other benefits can be given on a pro-rata basis. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations specifically provide that less favourable treatment under one contractual provision may be objectively justified if, when the whole of the fixed-term employee’s package is taken into account, there is no less favourable treatment. 9. Also, no employee on a fixed-term contract will be treated less favourably due to any of the protected characteristics defined by the Equality Act 2010. The Trust ensures positive promotion for the employment of people with protected characteristics. For example, advice can be sought from HR or Occupational Health on putting in place adjustments where required. 10. Notice periods for the early termination of fixed-term contracts should normally be the same as for a comparable permanent employee. The fixed term contract should also specify that it will terminate on expiry of the fixed term without the need for any further notice. 11. Employees on fixed-term contracts may not be selected for redundancy on the basis of their fixed-term status, but this does not prevent a fixed term contract terminating at the end of its fixed term.
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12. An employee with a fixed-term contract who believes that they are being treated less favourably than a comparable permanent employee may make a complaint using the Trust’s Grievance Procedure. VACANCIES 13. An employee on a fixed-term contract has the right to be told of available vacancies within the Trust. This is achieved via the Trust’s Intranet site, email and NHS Jobs, which managers should highlight to all employees with fixed-term contracts throughout their fixed-term contract. In the few cases where a fixed-term employee does not have regular access to a computer then this should be made available to them or alternative arrangements made for them to view all the Trust’s vacancies. 14. Where a fixed-term post is to be made permanent (i.e. as a result of securing permanent funding), the post must be advertised and recruited into following normal Trust recruitment procedures with preferential consideration to those “at risk”. The post cannot automatically be given to the person holding the fixed-term contract. RECRUITMENT OF FIXED-TERM EMPLOYEES 15. Recruitment of staff onto fixed-term contracts must follow all of the normal internal recruitment processes and procedures. The job advert must state that the position is fixed-term, the reason it is fixed-term, e.g. maternity cover, or a project for a specified time period, and the time period of the fixed-term contract. Trust procedures for recruitment, including the preparation of job descriptions, person specifications, KSF outlines, the seeking of satisfactory references and necessary DBS clearance etc, should be followed in the same way for fixed-term appointments as for permanent appointments. CONDITIONS 16. Once an employee has been continuously employed for four years or more on one or more fixed-term contracts, then the employee will be entitled to apply for permanent status, unless there are objectively justifiable reasons for offering another fixed-term contract (this will be rare). An example of this may be where it is known that there will only be funding available for the post for a further specified timescale. It is important that managers give careful consideration to the renewal and extension of fixed-term contracts and that guidance is sought from the HR department. MANAGEMENT OF FIXED-TERM EMPLOYEES 17. Employees with fixed-term contracts should fully participate in the Trust wide and local Induction as well as all relevant and appropriate mandatory training, as if they were permanent employees. 18. Employees with fixed-term contracts should receive regular supervision (managerial and clinical as appropriate), appraisals and up-to-date personal development plans and targets in line with Trust procedures for all employees. This process should be linked to the specific project detailing the task for which the
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individual has been employed but not be so narrow that it limits their ability to demonstrate a wider contribution to departmental / other objectives. 19. Where there are capability, disciplinary or attendance issues that arise with the employee, these should be managed and where appropriate in line with the applicable Trust policy and procedure. MATERNITY AND ADOPTION LEAVE (See section 15 of the Agenda for Change Handbook which applies to employees employed on bands 1-9) http://www.nhsemployers.org/SiteCollectionDocuments/AfC_tc_of_service_handboo k_fb.pdff 20. Employees with fixed-term contracts which expire after the eleventh week before the expected week of childbirth and who qualify for NHS Maternity/Adoption benefits will have their contracts extended to the end of their paid Maternity or Adoption Leave period to allow them to receive the full entitlement to paid Maternity/Adoption Leave. A change form must be completed and a termination form submitted at the end of that period. 21. If there is no right of return to be exercised because the contract would have ended if pregnancy and childbirth had not occurred, the repayment provisions that would normally apply to employees not returning from Maternity or Adoption Leave do not apply. 22. Employees on fixed-term contracts who do not qualify for NHS Maternity or Adoption benefits may qualify for Statutory Maternity/Adoption Pay. 23. Where the contract is due to end before the 29th week of pregnancy, the employee will not be entitled to Maternity Leave or Occupational Maternity Pay. In this instance, the employee should contact Job Centre Plus to find out if they would be entitled to Maternity Allowance. 24. Whilst the fixed-term contract has been extended to allow for the employee to receive maternity pay they will still continue to have a right to be informed of available vacancies. APPOINTMENT TO POSTS 25. When an existing employee with a permanent contract is appointed to a new post with a fixed-term contract, it should be made clear in the appointment letter that the normal procedures would apply at the end of the contract term and that their contract may be terminated on the grounds of the fixed-term contract coming to an end. 26. If an employee has a permanent post and as a result of an organisational change process they are redeployed into a fixed-term post, they will remain “at risk” for the duration of the fixed-term post.
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27. Where a post that is currently fixed-term, becomes permanent the individual undertaking the post that has been appointed on a fixed-term basis will not automatically slot into the permanent post. Normal recruitment processes will be followed, with the permanent post being advertised in line with the Trust's recruitment policies and procedures. 28. It is good practice to inform the employee that has been undertaking the post on a fixed-term basis that the post is being recruited to on a permanent basis upon expiry of the fixed-term. Please consider whether notice of termination needs to be provided to the employee or whether the wording of the fixed-term contract provides for no additional notice to be given. TERMINATION AT THE EXPIRY OF THE FIXED-TERM CONTRACT 30. When a fixed term contract terminates on the completion of a task or occurrence of an event (e.g. return of post-holder) the termination is deemed to be a dismissal. In these circumstances, fixed term employees have a number of statutory rights as follows: • The right not to be unfairly dismissed. To qualify employees need to have at least two year's continuous service with the Trust; • The right to a written statement of reasons for dismissal (after one year); • The right to redundancy pay (after two years continuous NHS service) if the reason for the dismissal is redundancy, which is subject to the usual qualification periods. Please note that the reason for dismissal WILL NOT be redundancy in many cases; • To a minimum statutory notice or contractual notice period – please refer to the fixed-term contract. The minimum statutory notice period is: • After one month’s continuous service, but less than a year is one week’s notice; •
After two years continuous employment two weeks’ notice, this is increased year on year to a maximum of twelve weeks’ notice.
Please check the fixed-term contract for the notice provisions. Advice and guidance needs to be sought from HR at an early stage, prior to terminations of fixedterm contracts. REDUNDANCY 31. Managers are advised that if the employee has had at least 104 weeks (2 years) continuous NHS service including full and part-time service within this Trust or another NHS organisation, the employee will have acquired qualifying service for a redundancy payment should there be a redundancy. 32. The entitlement to redundancy payments are detailed in the Agenda for Change: NHS Terms and Conditions of Service Handbook. Copies are available on the Trust’s Intranet site and listed in Section 16 of the document. Full redundancy payment details will be provided through HR for individual employees on a 6
confidential basis where this is applicable. (Also please refer to the Organisational Change policy and toolkit) 33. Managers are reminded that where there is an entitlement to a redundancy payment the normal procedures for a redundancy apply, including that an EPB1 form must be signed off by the Trust at an Executive Level. Managers therefore need to ensure that any process is commenced in a timely way and that HR guidance is sought at an early stage.
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TEMPLATE LETTERS FOR MANAGERS TO USE TO SUPPORT PROCESS Letter inviting Fixed Term Employee to end of contract meeting
Private and Confidential
Dear Expiry of Fixed Term Contract As detailed in your appointment letter your fixed term contract is due to expire on (Date) You were employed on a fixed term contract on the condition that your employment would terminate when the (Task / Project) was completed. The (Task / Project) for which you were employed is set to be completed on (Date) OR You were employed on a fixed term contract on the condition that your employment would terminate when (state event e.g.: when the post holder returns from Maternity Leave) We now know that this will be on (Date) I would like to arrange a meeting with you on [DATE] at [TIME] in [PLACE] to discuss your current employment situation and the expiry of your fixed term contract. In attendance with me at the meeting will be XXXXXXXXXXXX. You are entitled, if you wish, to be represented at the meeting by an accredited representative of a recognised Trade Union or Professional Organisation or accompanied and supported by a work colleague acting in a personal capacity. If you wish to do so please make your own arrangements. In the meantime if you have any queries or concerns regarding this then please do not hesitate to contact me directly.
Yours sincerely
General Manager
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Letter informing Fixed Term Employee of outcome of meeting (To be sent no later than 5 working days following the meeting)
Private and Confidential Dear Expiry of Fixed Term Contract I write further to our meeting held on (Date). In addition to ourselves also present were (State who else was in attendance and what capacity e.g.: Union representative / work colleague) As we discussed in the meeting held on (Date) your fixed term contract is due to expire on (Date) and unfortunately the Trust is not in a position to extend your post at the end of your fixed term appointment due to (Reason).
2 years+ continuous NHS service I therefore write to confirm that due to you having over 2 years continuous NHS service you will be placed “at risk” and that the Trust is issuing you with xx weeks notice of the termination of your employment. Your “at risk “period, will run concurrently with your notice period and we will continue to look for alternative posts for you up to your termination date. At the meeting it was explained to you that you will be made aware of current vacancies within the Trust through the Vacancy Bulletin and also through the Trust Intranet site. You will be given access to the restricted vacancies on the NHS Jobs website, where you can apply for any vacancies. If you meet the essential criteria for the post, and the post is the same band or below your current post you will receive a preferential interview. If you wish to apply for a post which is at a higher band, you can do so but will not receive a preferential interview. I would like to reassure you that the Trust is committed to keeping you fully informed during the process and will work to find ways of reducing or avoiding the possibility of your employment being terminated at the end of your fixed term appointment. However if no suitable alternative post can be found within the Trust your employment will be terminated on the grounds of xxxxxxxxxx on xxxxxxxx with no further notice. You have the right to appeal against this decision. If you wish to exercise this right, you should do so within 10 working days of the date of the decision of this meeting by writing to (STATE NAME OF APPROPRIATE GENERAL MANAGER / EXECUTIVE DIRECTOR) stating your name, where you are employed and providing clear and specific reasons for the appeal. OR
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Less than 2 years continuous NHS service I therefore write to confirm that the Trust is issuing you with xx weeks notice of the termination of your employment, your contract of employment will therefore terminate on xxxxxxx on the grounds of xxxxxxxx . You will be able to access current vacancies within the Trust through the Vacancy Bulletin and also through the Trusts Intranet site during your notice period. You have the right to appeal against this decision. If you wish to exercise this right, you should do so within 10 working days of the date of the decision of this meeting by writing to (STATE NAME OF APPROPRIATE GENERAL MANAGER / EXECUTIVE DIRECTOR) stating your name, where you are employed and providing clear and specific reasons for the appeal In the meantime if you have any queries or concerns regarding this then please do not hesitate to contact me directly. Yours sincerely General Manager
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Letter inviting employee to final meeting
Private and Confidential
Dear Expiry of Fixed Term Contract As you are aware you were appointed to the post of (xxx) on a fixed-term contract on the condition that your employment would terminate when the (Task / Project) was completed. The (Task / Project) for which you were employed is set to be completed on (Date) OR You were employed on a fixed term contract on the condition that your employment would terminate when (state event e.g.: when the post holder returns from Maternity Leave) We now know that this will be on (Date) As such I am writing to invite you to a further meeting to be held on (Date / Venue / Time) to discuss the expiry of your fixed term contract and what other options have been explored. You are entitled, if you wish, to be represented at the meeting by an accredited representative of a recognised Trade Union or Professional Organisation or accompanied and supported by a work colleague acting in a personal capacity. If you wish to do so please make your own arrangements. In the meantime if you have any queries or concerns regarding this then please do not hesitate to contact me directly.
Yours sincerely
General Manager
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Letter following final meeting
Private and Confidential Dear Expiry of Fixed Term Contract I write further to our meeting held on (Date). In addition to ourselves also present were (State who else in attendance and what capacity e.g.: Union representative / work colleague) As detailed in your appointment letter your fixed term contract is due to expire on (Date) You were employed on a fixed term contract on the condition that your employment would terminate when the (Task / Project) was completed. The (Task / Project) for which you were employed is set to be completed on (Date) OR You were employed on a fixed term contract on the condition that your employment would terminate when (state event e.g.: when the post holder returns to work etc) We now know that this will be on (Date) We have worked together to explore other options for you, however, as there are no suitable alternative positions within the Trust I regretfully confirm that your fixed term contract will not be renewed and you will be as previously advised, dismissed from your employment on the grounds of ……….. . with effect from xxxxxxxx. You are encouraged to use any annual leave entitlement still owing to you, however, if for operational reasons you are unable to do so any balance will be paid in your final salary. If you have overtaken any annual leave then this will be deducted from your final salary.
May I take this opportunity to thank you for your contribution to Nottinghamshire Healthcare NHS Trust and wish you all the very best for the future.
Yours sincerely General Manager
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Letter informing Fixed Term Employee of an Extension to Contract (to be sent as soon as practicable following the decision to extend)
Private and Confidential
Dear Extension of Fixed Term Contract I would like to confirm that Nottinghamshire Healthcare Trust is extending your fixed term contract which commenced on (Date). It is anticipated that this contract will now finish on (New Date) The reason for this extension was (Reason) In all other respects your fixed term contract of employment will continue to be in accordance with the terms stated in your original contract of employment dated (Date). I would be pleased if you could sign and return the enclosed copy of this letter to indicate your acceptance of this extension. May I take this opportunity to thank you for your valued contribution to Nottinghamshire Healthcare NHS Trust.
Yours sincerely
General Manager
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