Consideration of alternative employment within the University for staff approaching the end of a fixed-term appointment

Introduction

Every employer has a legal obligation to search for suitable alternative work for staff who are at risk of redundancy and, where it is available and the employee is suitable to undertake it, to offer that employment.

The non-renewal of a fixed-term contract is equivalent in law to redundancy if the reason for failure to renew is that the work is to cease or diminish. In the case of employees engaged on fixed-term contracts this would normally occur because funding is discontinued.

Employers' responsibilities in respect of staff employed on fixed-term contracts were highlighted by the Fixed-Term Employees Regulations which came into force in October 2002; see circular PERS(07)03 for further details. Where funding is no longer available to continue the work for which a member of staff has been employed on a fixed-term contract, and the individual wishes to remain a university employee, there is a specific obligation under the Fixed-Term Employees Regulations to ensure that an affected individual is made aware of all suitable permanent vacancies within the University. In accordance with the Dispute Resolution Regulations 2004, all employees whose employment may be terminated by the employer (including the non-renewal of fixed-term contracts) must be given the opportunity to attend a meeting to discuss the circumstances that may lead to the termination of their employment; and, if the employment is eventually terminated, they must be informed of their right to appeal against this decision.

The University also has a special responsibility to research staff under the terms of the 'Concordat', a national agreement for higher education, of which our local interpretation may be found in the University's Code of Practice for the Employment and Career Management of Research Staff.

Where a member of staff who is approaching the end of a fixed-term contract is not satisfied that all reasonable efforts have been made to try to locate suitable alternative funding and/or employment opportunities within the University, he or she may have recourse to the relevant individual grievance procedure. In the case of academic and academic-related staff, the final stage of this procedure involves a referral to the University's Grievance Committee. Nothing in this guidance will operate to extend a fixed-term contract of employment beyond its end date for the purpose of the deliberations of the grievance committee although, where appropriate, this process may itself extend beyond the termination of employment.

In cases involving either the termination of an open-ended externally funded contract, or the non-renewal of a fixed-term contract, departments are advised to ensure that they are able to evidence the reasonable actions taken to seek alternative employment, and in particular, the proforma letters indicated in this guidance should be used in the relevant circumstances.

Departments are reminded, however, that redeployment constitutes a change to an individual's contractual terms of employment and therefore cannot be implemented without his or her consent (although the unreasonable failure to accept an offer of suitable alternative employment would put the individual at risk that he or she would not be entitled to a redundancy payment). Full consultation and communication over all proposals for redeployment should take place with affected staff, and with appropriate employee representatives, at the earliest opportunity and throughout the process of searching for alternative employment. Departments should also be mindful when seeking redeployment for staff who require UKBA permission to work in the UK, that it may be difficult to employ them in a new role if this has not been advertised. Advice may be sought from the Work Permits Desk.

Separate arrangements apply when university contracts of employment are prematurely terminated on grounds of redundancy. Departments should note that this includes the premature termination of fixed-term contracts.

Separate guidance is available on redeployment in other circumstances, for example when a disability or illness prevents an employee from continuing in his or her post.

Responsibilities of departments currently employing a member of staff approaching the end of his or her fixed-term appointment

Where a member of staff is approaching the end of a fixed-term contract, departments should start the process of looking for alternative work in good time, i.e. not later than three months before the expiry or potential termination date of the appointment.[1] Provided that at the potential end date the employee concerned will have completed at least one year's continuous service with the Chancellor, Masters and Scholars of the University of Oxford, heads of department are responsible, after consultation with the member of staff concerned, for appointing a 'nominated supervisor' in the department and ensuring that he or she takes the actions listed below. For this purpose, the 'nominated supervisor' may be either (i) the 'group leader' for the member of staff or (ii) an administrator or other member of the department who has the necessary expertise or backup to assess the suitability of vacancies and record actions taken. In either case the person appointed needs to have a good understanding of the operation of these procedures and should possess the skills required to act as an effective mentor during the process. Except in unusual circumstances, the process should begin with a face-to-face meeting with the member of staff, and formal letters should not be sent without prior explanation and discussion of their content. Departments should note that all the arrangements described apply equally to relevant staff who are temporarily absent from work, for example, because they are on sick leave or maternity leave.

1. The nominated supervisor should remind the member of staff that his or her fixed-term contract is due to expire on (date), and offer the opportunity to attend a meeting to discuss this. Proforma letter A1 should be used to confirm this information.

2. Ascertain whether the individual wishes to be redeployed if an appropriate position can be found, and offer the opportunity to attend a meeting to discuss this. Proforma letter A1 should be used for this purpose and a copy of each letter sent should be retained by the departmental administrator for at least six months.

3. If the member of staff does not wish to be considered for suitable alternative employment within the University (for example because he or she wishes to further a career outside the University), the member of staff should reply along the lines of Proforma letter B. No further action is required by the nominated supervisor once such written confirmation is received and passed to the departmental administrator, who should retain it for at least six months after the end of the member of staff's employment.

4. If no reply is received, a follow-up letter should be sent, using Proforma letter A2.

5. Where the member of staff indicates that he or she wishes to be considered for suitable alternative employment within the University, Proforma letter A3 should be sent to confirm this.

6. The nominated supervisor should then take the following actions:

(a) Consult with the member of staff concerned, and with the appropriate employee representative(s), to advise them that redeployment is being considered.

(b) Agree with the member of staff an action plan for the redeployment process. An action plan should be set out in writing and should include the following elements:

  • the timeframe during which the redeployment process will operate (normally, this will continue until either alternative employment is obtained, or the existing employment is due to come to an end);
  • liaison with the head of department or appropriate authority to consider whether academic needs and operational requirements are such that the individual's existing work should be continued and, if so, to ensure that all possible avenues for replacement funding continue to be pursued;
  • the provision by the individual of an up-to-date curriculum vitae (the nominated supervisor should offer assistance with its preparation where appropriate);
  • clarification of the types of post in the University which might represent suitable alternative employment, bearing in mind the person's experience and skills, but also his or her interests and aspirations;
  • arrangements for ensuring that any potentially suitable vacancies within the same department are discussed with the member of staff before they are advertised.
  • arrangements for ensuring that the person's CV and a letter outlining the areas for which he or she might be suitable is sent to other administrators within the University, so that they can be matched against any vacancies that may arise[2]. (The extent of circulation of this information will depend on individual circumstances. If the member of staff has highly specialised experience, it might be appropriate at least in the first instance to contact only those departments that are likely to require that specialism, although departments should bear in mind that they might not always be aware of relevant work being carried out in other areas);
  • provision for accessing information about all University vacancies (whether permanent or otherwise) through the Jobs and Vacancies website. If the member of staff has difficulty in accessing it through the internet, he or she should receive a printed copy; and
  • arrangements for regular meetings with the nominated supervisor at which potentially suitable alternative employment opportunities advertised in the Jobs and Vacancies website can be discussed. (A note should be kept of whether any such vacancies were identified and, if so, the action taken.)

(c) In each case where a potentially suitable vacancy is identified, the nominated supervisor is responsible for ensuring that the individual's curriculum vitae is sent to the department concerned (which may or may not be the individual's present department), together with any other information which the nominated supervisor and individual may consider relevant. Proforma letter C, which clearly identifies the applicant as a member of staff presently in employment and approaching the end of his or her fixed-term or open-ended externally funded appointment, should be used for this purpose and copies of all applications made should be passed to the departmental administrator, who should retain this material for at least six months. Relevant vacancies at a lower grade, and/or involving a reduction in salary, should not be ruled out automatically on those grounds: they should be discussed with the individual concerned, who has the right to decide whether to pursue such vacancies.

(d) Liaise with the departments to which applications have been made and keep the individual member of staff informed of the outcome of his or her applications, including the provision of feedback on the reasons for any unsuccessful application. Notes of these matters should be retained for at least six months.

(e) Discuss the possibility of the employee undertaking additional training, skills updates, etc., where it is likely that this would improve the member of staff's chances of finding alternative employment.

(f) Ensure that the member of staff receives appropriate support and monitoring during this process. If he or she is finding it particularly stressful, advise him or her of the possibility of receiving counselling through the University Occupational Health Service.

Where a woman approaching the end of a fixed-term or open-ended externally funded appointment has informed her department that she is pregnant, the head of department (or departmental administrator acting on the head's behalf) must seek and follow specific advice from Personnel Services.

Responsibilities of departments receiving applications from existing staff approaching the end of a fixed-term appointment

Departments receiving applications from staff approaching the end of a fixed-term appointment are expected to give such applicants preferential consideration (unless the vacancy is at a higher grade than their existing post, when normal advertising and selection arrangements will apply). This means that, provided that the priority application arrives by the normal closing date, and the applicant is not clearly unsuited to the post on the basis of his or her previous experience and skills, he or she should be interviewed before any other candidates (and, if practicable, before other candidates are called for interview) and, if suitable, should then be offered the job, normally on a trial basis. The trial period is four weeks only, unless a longer period is agreed in writing with the individual for the purpose of retraining. There is no specific provision for a formal probationary period in these circumstances. Accordingly the trial period (whether standard or extended) would have to act as the probationary period. Proforma letter D should be used for this purpose.

It is for departmental selection panels to judge whether a particular candidate may be suitable, bearing in mind the selection criteria and the applicant's skills and abilities, experience, etc., and also taking into account the possibility of reasonable retraining in the post. The legal right to be offered alternative employment only applies in circumstances where the vacancy is suitable for that individual, given reasonable retraining where appropriate. However, if a candidate approaching the end of a fixed-term or open-ended externally funded appointment is able to meet all the essential criteria listed in the selection criteria for the post, or it is likely that he or she would be able to meet them after reasonable retraining, then the department should offer the post to that person on a trial basis of at least four weeks. In the event of doubt, advice should be sought from Personnel Services.

Should the selection panel decide, for any reason, not to offer a vacancy to a candidate approaching the end of a fixed-term appointment, full records must be kept and the panel must be able to show that the reason for its decision was clearly based on a comparison of the candidate's skills, abilities, and experience with those required for the post in question. The internal applicant approaching the end of a fixed-term contract should be informed of this decision using a letter based upon Proforma letter E. Feedback on the reasons for the panel's decision should be relayed to the applicant's departmental administrator or 'nominated supervisor', who will be responsible for discussing it with the applicant. These notes, records, and letters should be kept for at least six months in case they are relevant to any proceedings.

Where a particular vacancy generates more than one application from candidates approaching the end of a fixed-term or open-ended externally funded appointment, departments are advised to consult Personnel Services in the first instance to see whether any special factors need to be taken into account.

Other resources

Departments are reminded of the following additional resources which should be drawn to the attention of staff approaching the end of a fixed-term contract:

The jobs.ac.uk web site, which lists a wide variety of job vacancies in higher education and related fields

The University's careers advice service for research

The Oxford Learning Institute, and the University's Computing Services department, both of which offer training courses which may help staff to develop or update their skills and knowledge in relevant areas.

Proforma letters for use when alternative employment within the University is being considered for staff approaching the end of fixed term appointments.

Proforma letter A1 – Invitation to EOC meeting

Proforma letter A2 – Follow-up letter where employee has not responded

Proforma letter A3 – Response from staff wanting redeployment

Proforma letter B – Response from staff NOT wanting redeployment

Proforma letter C – Priority application cover

Proforma letter D – Trial period letter

Proforma letter E – Feedback letter for unsuccessful priority application

[1]At least a month before the formal redeployment process would be due to begin, the departmental administrator should write to the 'group leader' for the member of staff concerned, to remind him or her that the funding for the appointment is due to expire; this letter or e-mail should be copied to the employee, so that he or she is aware of the situation. If the funding is due to expire at the end of the academic year, it is advisable to begin any search for appropriate redeployment opportunities in good time before the beginning of the vacation.

[2]It is both acceptable, and appropriate, in these circumstances for such vacancies to be offered to the member of staff concerned without advertising provided the vacancy is not at a higher grade than the existing post, and that the employee does not require UKBA permission to work in the UK, and where this may not be granted if the post has not been advertised. In all cases an interview should always be held to confirm that the vacancy is in fact suitable for the individual, and vice versa. If the vacancy could be suitable for more than one individual who might otherwise be at risk of redundancy, departments are advised to consult Personnel Services in the first instance to see whether any special factors need to be taken into account