A fixed term contract is one where the employment contract ends on a particular date, or on completion of a specific task such as a project. Schools typically have several employees on fixed term contracts, the most common being 1:1 Teaching Assistants where the employment relationship continues until the pupil that the individual is supporting leaves the school. Fixed term contracts allow the school flexibility in its staffing structure but Headteachers should be mindful of a number of potential issues that can arise.
Issues relating to the use of fixed term contracts in schools
The first issue to be aware of is that under reg.8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, where an employee has been continuously employed on successive fixed-term contracts for four years or more, he or she will automatically achieve permanent status, unless there is an objective reason that justifies a further renewal for a fixed term.
Your 1:1 Teaching Assistants will potentially be in post for longer than 4 years. Will they automatically become permanent employees after 4 years at the school? The answer is that if their contract has been drafted correctly their on-going employment will be linked to the pupil. This will be an objective reason that justifies the contract lasting more than 4 years and will mean that you can end the contract fairly when the pupil leaves.
Where many schools go wrong is when they redeploy a 1:1 teaching assistant, whose pupil has left, into another fixed term role, without issuing a revised contract. In doing so, the employee could claim that they are now a permanent member of staff. The employee should always have an employment contract that reflects their current working situation. It would be worthwhile carrying out an audit of the current contracts held by your members of staff to ensure they’re all up to date.
Fixed Term employees also have the right not to be treated less favourably than comparable permanent employees under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. They should therefore have the same access to training opportunities that permanent employees are entitled to. In addition, should a whole school redundancy process be required, in most cases, you won’t be able to automatically terminate fixed term staff ahead of considering the redundancy implications for permanent staff. To do so would be to treat fixed term employees less favourably.
Fixed term workers will also have the right to claim unfair dismissal and will qualify for redundancy payments after two years of service. Schools should remember that fixed term employees, just like any other employee, are likely to be covered by the Redundancy Payments (Continuity of Employment in Local Government etc) (Modification) Order (RMO). This means that you could unwittingly take on a 6 month fixed term contract only to discover that they have come from another school also covered by the Modification Order and now have 20 years’ continuous service. If the fixed term contract comes to an end by reason of redundancy, your school will be liable for the redundancy payment due for the entire period (i.e. 20 years). This could be a considerable blow to the school’s budget.
Fixed term contracts can pose a number of challenging issues for schools. Should you require any support or advice please don’t hesitate to contact us on 01271 859 267.
