POLICY & PROCEDURE FOR THE APPOINTMENT AND REVIEW OF FIXED TERM CONTRACTS
DEFINITION OF A FIXED TERM CONTRACT:
A part-time or full time contract of a specified fixed term duration. Staff on such contracts are salaried although in exceptional circumstances a ‘fixed fee’ arrangement can be made.
1 INTRODUCTION
York St John has to operate in a competitive environment and faces the same kind of competitive, operational and business pressures as other sectors of the economy. The University needs to be productive and efficient, making full use of modern and flexible work organisation and adopting patterns of work. This requires that we have the flexibility to appoint fixed term staff to perform certain roles within the University. Fixed term contracts are used most often where funding is temporary or a time-limited task/project is to be undertaken.
The University wishes to treat all its employees fairly and aims to achieve a proper balance between flexible working and organisational efficiency and the fair treatment of employees.
Obligations arise from the wish to be a good employer and from legislation. It is important to note therefore that these flexible arrangements are governed by University Policy and employment law.
The aim of this Policy is to define the procedures in relation to the appointment of fixed term academic and support staff and the principles underlying their employment. The outcomes of this Policy are to:
1.1 Ensure adherence to the legislative requirements on the use of fixed term contracts and redundancy. The traditional ‘waiver’ clause (by which employers asked employees to waive their right to redundancy payment), no longer has validity in contracts where service is continuous over two years and it is therefore essential to have in place procedures to consult at both collective and individual level, and to identify those staff eligible for a redundancy payment.
1.2 Issue guidelines on measures to be taken to prevent ‘casualisation’ wherever possible and ensure fixed term contracts are used appropriately to meet business needs. Within this context, it is recognised that there will be circumstances where the use of such contracts is appropriate, and these are detailed in the Policy. There will also be a threshold of four years service.
2 WHAT IS A FIXEDTERM EMPLOYEE?
A fixed-term employee is someone employed under a contract of employment which provides that it will terminate:
o on a specific date
o on the completion of a particular task, or
o when a specific event does or does not occur
A separate procedure exists for the appointment and review of hourly-paid academic contracts.
3 THE LEGISLATIVE FRAMEWORK
There are a number of ways in which legislation impacts directly on fixed-term employment.
3.1 There is the requirement to avoid direct and indirect discrimination in the use of fixed-term contracts and to ensure equal pay for work of equal value. These are set out in the Equal Pay Act 1970, the Sex Discrimination Acts 1975 and 1986, the Race Relation Act 1976 and the Employment Relation Act 1999 (and subsequent Regulations)
3.2 The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 provides that fixed term staff are not to be treated less favourably than comparable permanent employees. Employers are prevented from placing employees on successive fixed term contracts without objective justification. If an employee is employed under a fixed-term contract and this contract has been renewed or if an employee was previously employed on another fixed term contract, then he or she will be regarded as a permanent employee as soon as he or she has been continuously employed for at least 4 years. Service prior to July 2002 does not count for these purposes.
3.3 The Trade Unions and Labour relations (Consolidation) Act 1992 includes requirements to consult the recognised unions where there is a redundancy.
3.4 A redundancy occurs where there is a diminution or reduction in work and employment has been continuous for two years. A redundancy is a form of dismissal and is a ‘fair’ dismissal when there is an objective justification relating to the diminution of the work and proper steps have been taken to consult the staff involved. This does not affect the legislation regarding unfair dismissal, for which the qualification period is one year’s service. An employee on an fixed term contract whose contract is terminated after, for example, 18 months can claim unfair dismissal (whether or not they qualify for a redundancy payment) if the employer cannot show good reason for the dismissal.
3.5 Precedent developed by case law provides that seasonal breaks in contracts should not be regarded as a break in service. The University will ensure adherence to the principles established within case law when determining length of service.
4 USE OF FIXED TERM CONTRACTS
The University depends on a range of funding sources, some of them increasing, some declining, some of them variable and insecure. The University needs to be productive and efficient, making full use of modern and flexible work organisation and adopting patterns of work that will fit challenges in the future. Just as important, the University wishes to treat all its employees fairly and to offer opportunities for staffing all the occupational groups to pursue and develop their careers. The aim must be to achieve a proper balance between flexible working and organisational efficiency, on the one hand, and security of employment and fair treatment of employees on the other.
4.1 Objective reasons for fixed term contracts
It is essential that there are transparent, necessary and objective reasons for employing an individual on a fixed term contract. Such reasons include:
4.1.1 Temporary cover until recruitment processes are completed or as a short term measure during recruitment difficulties
4.1.2 Temporary increase in workload
4.1.3 Response to an unplanned/unexpected situation as a short term contingency plan
4.1.4 Temporary cover of an absent member of staff (e.g. sickness, maternity)
4.1.5 To meet variable and uncertain student or other business demand
4.1.6 Where funding is limited and future funding uncertain
4.1.7 Where a specific task/project is to be undertaken
Where a post has been advertised as permanent, an individual should not be offered a fixed term contract where a department/faculty is unsure about their ability to undertake the responsibilities of the role. This is the purpose of a probationary period.
4.2 Principles Underlying Good Practice
Employment arrangements for all staff should reflect the following principles:
o Equality of opportunity is reflected in all aspects of employment.
o Temporary contracts respond, in certain circumstances, to the needs of both employers and employees.
o Indefinite contracts are the general form of employment relationship between employers and employees.
o Access to services available to staff on indefinite contracts which assist better performance, such as staff development, training, appraisal, careers advice for research staff, etc. should also be available pro-rata to staff on fixed term contracts.
o Staff on fixed term contracts should have similar terms and conditions of employment to those in comparable jobs with indefinite employment in the institution. They should have access to information on, and the opportunity to apply for, more secure positions.
o The institution should carry out a periodic review, particularly where there is a succession of fixed term contracts, to consider indefinite employment.
4.2.1 The successful application of these principles depends on a recognition by the University and staff that:
o Staff, whether full-time or part-time should only be placed on fixed term contracts where there are necessary and objective reasons (see 3.1 above).
o Indefinite employment will be available within the University for only some of the staff on fixed term contracts.
o Staff employed on fixed term contracts have a legitimate expectation of the support and services available to staff on indefinite contracts as appropriate.
o Staff employed on fixed term contracts may have special needs (e.g. career advice) relating to their short-term contracts.
o There are benefits to the institution and the long-term career development of staff in avoiding an unnecessary and excessively extended sequence of temporary contracts.
5 PROCEDURES FOR THE APPOINTMENT OF FIXED TERM STAFF
5.1 Advertising
5.1.1 All fixed term contracts of 9 months or more, or those which are likely to be converted into indefinite posts, must be advertised. The normal recruitment processes should be adhered to as set out in the University’s Recruitment & Selection Manual.
5.1.2 Where a fixed term post has not been advertised and is later converted to a permanent position, to ensure equality of opportunity, the permanent position must be advertised. The individual currently in post can apply for the post should they so wish.
5.1.3 Where a member of staff is offered a permanent position in line with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and they have not been interviewed previously for the post, they will be required to go through an interview process before permanent status is confirmed.
5.2 Interview process for fixed term contracts of less than 9 months in duration
a. For posts of less than 9 months in duration and where an advertisement has not been placed, an interview must still be undertaken to ensure an individual’s suitability for post.
b. It is the Faculty/Department’s responsibility to ensure a person’s suitability for work by obtaining CVs, interviewing prospective staff, checking their academic/professional credibility, where appropriate.
c. In line with University policy, any member of staff undertaking interviews will need to be familiar with the YSJ Recruitment & Selection Manual and have undertaken recruitment training.
d. If references are not available at the time of appointment, offers will be made ‘subject to satisfactory references’.
5.2.1 Making an appointment
a. Once an appropriate person has been selected, form ‘TempAcad’ or ‘TempSupport’ (Request to appoint a fixed term member of staff) should be completed and signed, ideally, by the Head of Department/Dean of Faculty before being sent to the HR department together with a copy of the individual’s CV. However, it is accepted that, as budget holders, this authority can be delegated to Heads of Section/Subject. If references have not already been received, HR will send for them.
The forms require the individual’s personal details, information about the work they have been asked to undertake and a justification for their appointment including acknowledgement that they have been assessed as being suitable for the position they have been selected for. This form must be completed and sent to Human Resources BEFORE the person commences work with the University. If this is not done there are a number of consequences including:
o Misunderstanding about the number of hours and rate of pay
o Problems if an employee requires a work permit before they are allowed to commence employment
o Lecturers not receiving payment on time for work done are less inclined to work for us again
All of this will reflect adversely on the University and should be avoided.
b. The HR Department will produce an appointment letter and send this together with the Statement of Particulars to the new member of staff. They will apply for references, where appropriate. To ensure adherence to the Immigration, Asylum and Nationality Act, HR will also ensure that individuals provide:
o A passport, residence permit or Application Registration Card; or
o A full birth certificate (showing the names of parents) plus a document showing their name and National Insurance number.
Where a CRB check is required, the appropriate forms will also be sent.
c. Each member of staff that starts work will be sent a copy of the relevant information regarding the main University induction. Faculties/Departments will be responsible for ensuring they induct their new staff appropriately. It will also be the responsibility of the Department/Faculty to assign a mentor or coach that these staff are able to contact should they have any questions.
d. Departments/Faculties are responsible for ensuring that the work is carried out.
5.3 Interview process for fixed term contracts of more than 9 months in duration
The standard University recruitment & selection procedures must be followed.
5.4 Calculation of salary
a. All fixed term staff will be paid on the York St John pay spine. Role Analysis (HERA) will be used to determine the appropriate salary grade for fixed term staff. Fixed term staff are entitled to incremental progression in accordance with the standard procedures for permanent staff.
b. With fixed fee arrangements, where possible, the calculation of salary will be directly related to a grade and point on the pay spine to ensure equal pay requirements are satisfied.
6 SELF EMPLOYED STATUS
It is University policy to regard all individuals on fixed term contracts as employees. Self-employed status will only be recognised in very exceptional circumstances. Where there is a query about status then the Faculty/Department must make use of the on-line Employment Status indicator tool on the HM Revenue and Customs web site PRIOR to work starting. Full guidance notes are available from the HR Department Staff Information Point (‘Employment Status Guidance for Managers’). Where self employed status is confirmed, payment will be made on the basis of invoice submitted to the Dean of Faculty/Heads of Department or budget holder for authorisation
7 ANNUAL REVIEW OF FIXED TERM CONTRACTS
The HR department will, in consultation with Deans of Facility/Heads of Department, carry out an annual review of fixed term contracts in conjunction with the University annual staff budget planning between Feb to June. In so doing, the review will:
7.1 Identify the total number of fixed term contracts used during the year.
7.2 identify any members of staff who meet a threshold of two years continuous service. Where this occurs, discuss with the Dean of Faculty/Head of Department whether a permanent appointment should be made to any staff over the threshold. There will be a presumption that such an offer will be made unless there are exceptional and compelling reasons not to, such as:
§ funding is available for a specified period only
§ the need for the work to be undertaken has a specific end date and this will not be extended.
§ future financial support for the post is questionable due to uncertainty of student numbers and/or the viability of a course.