1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.
  2. Hi Guest, welcome to the TES Community!

    Connect with like-minded professionals and have your say on the issues that matter to you.

    Don't forget to look at the how to guide.

    Dismiss Notice

2012 Uncertainty

Discussion in 'Pay and conditions' started by scottjw, Jul 11, 2011.

  1. Basically, here it is in a nutshell.


    My school has 2 of us teaching a subject. There is only really the demand for 1 (about 30 lessons in a 30 period week, but people who have it as a second subject who could cover the PPA time).

    Both of us have just been taken on. I was given a PERMANENT contract in February, starting in September. To cover up until the end of this current year, my colleague was given a contract until such a time. Having done such a good job of the admin side, they have now been given a 1 YEAR ROLLING contract.


    I am now slightly worried, that come next year they will get rid of one of us, as I believe even now they don't need the two of us.




    My question; Having the permanent contract, do I stand a better chance of being kept on if it came to this? Or would they be able to take their pick? We are both under the same job title.




    Thanks in advance.
     
  2. Basically, here it is in a nutshell.


    My school has 2 of us teaching a subject. There is only really the demand for 1 (about 30 lessons in a 30 period week, but people who have it as a second subject who could cover the PPA time).

    Both of us have just been taken on. I was given a PERMANENT contract in February, starting in September. To cover up until the end of this current year, my colleague was given a contract until such a time. Having done such a good job of the admin side, they have now been given a 1 YEAR ROLLING contract.


    I am now slightly worried, that come next year they will get rid of one of us, as I believe even now they don't need the two of us.




    My question; Having the permanent contract, do I stand a better chance of being kept on if it came to this? Or would they be able to take their pick? We are both under the same job title.




    Thanks in advance.
     
  3. becktonboy

    becktonboy New commenter

    I believe your colleague has more cause for concern as a 1 year contract is so much easier to terminate.
     
  4. phatsals

    phatsals Occasional commenter

    If you are saying that come Aug 31st 2012 your colleague will have 2 years continuous service they will not be easy to get rid of. They cannot be dismissed on the basis of being Fixed Term and would have accrued strong Employment Protection rights. They would, in short, have to be made redundant.
     
  5. They started around Easter this year. If it did come to redundancy, would that make our positions the same and each of us would be equally as easy/hard to 'get rid of'?
    Even with the differences in contracts?


    Thanks
     
  6. phatsals

    phatsals Occasional commenter

    You original post isn't very clear. Are you saying you have a permanent contract dated from Sept '10 and your colleague has a contract from Feb this year> If it's a Fixed Term contract there are specific rights that come into play, for example if it is for a year they have a right not to be Unfairly Dismissed, which means following the employers Dismissal Policy. Once the year has passed if the contract is renewed for a further year they are entitled to Redundancy, the same as a permanent employee.
    I assume what you are asking is that if there are two people and one post, you would have automatic entitlement to it? It looks on the face of it that the only difference is perhaps you were employed a few months longer so in the case of one post becoming redundant, neither of you have more rights than the other. If neither of you has been employed for 2 years, neither of you would be entitled to a Redundancy payment.
    I know that's not what you want to hear, but forewarned is forearmed.
     
  7. tomjones79

    tomjones79 New commenter

    Surely any one on a one year contract can be made redundant after a year and the contract not renewed. Whereas to remove a member of staff on a permanent contract, a head would have to go the process of identifying posts for redundancy procedures. I would say that it would be much easier for a head to not renew the person with a one year contract as they don't then have to go through a redundancy process with unions.
     
  8. phatsals

    phatsals Occasional commenter

    If there is a one year contract for a purpose,ie absence, temporary post, special job etc then ok. At the end of a year or more then the contract would naturally end, this would not be an Unfair Dismissal. If it is simply a way of managing staffing budgets then it become more difficult. A one year contract attracts employment protection rights, namely not to be Unfairly Dismissed. You cannot choose to terminate a contract on the basis of it being Fixed Term, it has to be because the reason for it's existence is no longer there. This can be through staff restructuring and a post being surplus to requirements.
    The difficulty with the above case seems to be two people and potentially the same job. The second person appears not to be on a Fixed Term contract linked to an event, ie Mat leave, course, special project. Unless there is some significant difference between the two people and jobs either one of them could be made redundant, neither would attract a redundancy payment as they have not been employed for two years or more. In the case of a restructuring, ie one post not two the governors would be making a post redundant.
    Where the unions are involved is in establishing that procedures have been followed fairly. They can't make a post where there is none.
    What you can't do is dismiss someone because they are on a Fixed Term contract which is what you are suggesting.


     
  9. tomjones79

    tomjones79 New commenter

    I understand the ending of a one year contract (whatever the reason) to not be unfair dismissal, and to not need the formal setting up of redundancy procedures, whereas any removal of a permanent member of staff does. Obviously , I'm happy to be corrected. Could you please point me to any legal clarification on this or Becktonboys experience on such posts to clarify would be useful.
     
  10. tomjones79

    tomjones79 New commenter

    If as you state that it is acceptable if there is no longer a post, surely this could be justified if there are two people and basically one job and in your view although legally equal, you would not need to establish a whole school redundancy process.
     
  11. phatsals

    phatsals Occasional commenter

    It's a post that is made redundant, not a person
    See legislation on Fixed Term employment. See also legislation on Unfair Dismissal and Employment Tribunals.
    As I say, a person cannot be selected for Redundancy solely on the basis of being on Fixed Term, this dismissal would be considered Unfair Dismissal in law. The correct procedures would have to be followed to avoid the situation.
    THis is not the same as a person employed on contract for a reason for a period of time. A contract would end at it's contracted date, however if the contract had been renewed at least once and the person had 2 years service they would be entitled to a Redundancy payment and the reason for non-renewal would be Redundancy (of post).
     
  12. tomjones79

    tomjones79 New commenter

    I accept what you're saying about the post and not the person, but is it still not the case that a one year fixed term contract post would be easier to remove for the head due to the process being different? Or are you saying that even for a one year fixed post that the same staff redundancy process must apply?
     
  13. phatsals

    phatsals Occasional commenter

    What I'm saying is that it is not clear that it is a one year Fixed Term contract, the OP says it , is a rolling contract, is it year to year or month to month? If monthly it would be very easy to terminate. The contracted member of staff is entitled to a reason for their dismissal.
    Schools are regularly playing fast and loose with employment contracts. 1 year contracts carry employment protection rights, namely not to be Unfairly Dismissed. For example a person couldn't be on a one year contract, dismissed (non renewal is a Dismissal in law) and then someone else employed doing the same job on a 1 year contract. The post would still be there. Many schools are getting away with it but it is not lawful.
    Nevertheless after 1 year there is no entitlement to Redundancy payment, regardless of permanent or Fixed Term contract. That accrues at 2 years for all employees. That is why it is recommended that at two years contracts become permanent but it is not a legal requirement, at 4 years it is almost certainly regarded as permanent (though not always).

     
  14. ggsh

    ggsh New commenter

    This is intriguing and interesting... So what about schools that advertise for teachers and offer a 1 year fixed term contract in the first instance... If this were to cover a post of a teacher retiring or promoted; then assuming if the job was still there at the end of the year (pupil numbers hadn't dropped dramatically) - ifthe school chose to re-advertise and make the teacher re-apply would this be technically legal in light of above post quote "For example a person couldn't be on a one year contract, dismissed (non renewal is a Dismissal in law) and then someone else employed doing the same job on a 1 year contract. The post would still be there. Many schools are getting away with it but it is not lawful." Surely then, this suggests that if the teacher is doing well and the post is still there for the next year, then the school should not be re-advertising? Is this the same all over - ie England, Scotland and Wales???
     
  15. phatsals

    phatsals Occasional commenter

    Not sure about Scotland but yes for English system. People don't like to rock the boat. The case becomes strengthened at two years, this can be renewal of 1 year contract by a further year which then confers 2 years service. It is two years and over for Redundancy payment, not 'over two years'. Likewise 'one year and over' not 'over one year' for Unfair Dismissal. By this I mean that a contract from 1st Sept to 31st August is the full year, not to 1st Sept.
    The one year contract is usually offered to an NQT who won't want to rock the boat when told the post will be advertised at the end of the year. HT gets away with it again. Challenge the HT and contact HR, you may be very surprised at the outcome. If a permanent post is vacant it ought to be filled by a permanent contract, the rest is smoke and mirrors.
    I have developed a high level of expertise on contract employment through having to fight my corner on more than one occasion - and winning.
     
  16. phatsals

    phatsals Occasional commenter

    I should add that the situation is sometimes avoided by changing the job description, making the post somehow different to justify a readvertisement.

     
  17. veritytrue

    veritytrue New commenter

    I don't think this is accurate advice. A person could have a fixed contract (in this case, 1 year) and the school could, for whatever reason, choose not to renew it when the term expired. At that stage, there would be nothing to prevent the employer from recruiting someone else on another fixed term contract (say, another year). To all intents and purposes this could be for the same job. I don't think the first job holder would have any entitlement in law to be offered the job for the second term.

     
  18. phatsals

    phatsals Occasional commenter

    At one year the contract expires, but it is still a Dismissal. If there is a job and a contracted member of staff has less than a years service they are entitled to be notified of the vacancy and to apply. At one year they do have Employement Protection and the employer cannot just 'let them go' and appoint another person. They have a right not to be Unfairly Dismissed.
    Please read legislation on Fixed Term contracts.
     
  19. ggsh

    ggsh New commenter

    Thank you for guidance Phatsals [​IMG] It's all very interesting stuff! Generally I've found HR really useful and informative, but the union... not so much (chocolate and teapot spring to mind but that's a rant for another time! Thanks again.
     
  20. veritytrue

    veritytrue New commenter

    No point asking me to look for something that doesn't exist phatsals. If you are so sure it does then why don't you cite it here?
    In the meantime, I repeat, there is nothing in contract law that prevents an employer choosing
    someone else for the job if they so wish.
     

Share This Page