For decades, fixed term staff have been second-class citizens in Higher Education. When your contract ended, your employer had little real responsibility to find you work: you could be out - and that was that.
Staff were divided, right down the middle. Permanent employees were secure. Fixed term staff were disposable. Many departments tried to be fair. But, eventually, when money was short, out went the fixed term employees. Teaching assistants could be treated as second-class. Contract research staff might spend their lives wondering where their next grant would come from.
Now the law has changed. The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 state that:
- fixed term staff can no longer waive their rights to redundancy (i.e. the ending of a fixed term contract should be treated as any other redundancy),
- fixed term staff may not be discriminated against, and
- permanent contracts should be the norm and the use of successive fixed term contracts must be ‘objectively justified’.
A separate law says that Part Time workers have the same rights as Full Time staff, paid in proportion to their hours. As a result, hourly-paid staff have been given pro-rata contracts.
What does this mean for UCL staff?
The university can no longer treat fixed term employees differently from permanent staff without justification. For example, the offer of a new contract may not be used as a kind of renewed probation. Concerns about performance must be raised through the capability procedure for all staff - not by denying a new contract to an employee.
The end of a contract
or post does not justify sacking a particular
Your employer is UCL - not the department, research group or funding body. The employer must demonstrate that the duties have ended and that the individual member of staff has been fairly selected for redundancy. You have a right to trade union representation (if you join the union) and to appeal against the redundancy decision. If all else fails, you can go to an Employment Tribunal to challenge the decision.
All employers have
a legal responsibility to avoid redundancy
of all their staff, including ‘fixed term’
This means that an employer must be able to demonstrate that the redundancy could not be avoided by moving the member of staff into a new post. Before externally advertising a post, recruitment managers must check a database and confirm that no existing ‘at risk’ UCL staff satisfy the requirements for the post.
Open ended contracts and ‘end date’ clauses
The law only recognises two kinds of
contract, fixed term and permanent. UCL is moving
the vast majority of fixed term staff onto what
they call ‘open ended’ contracts. Most
of these contain clauses which either state an end
date for funding or a more general statement.
However a funding end date in a contract does not justify a redundancy. The law cannot be dodged by euphemism. They can only be used to remind management to plan to avoid redundancy by applying for funding and developing new posts. It is doubtful whether such statements have a place in a contract of employment at all.
All staff, whether permanent or fixed term, should join their trade union. We need to get organised to defend jobs. No one is simply dispensable.
UCU is the union for all researchers, lecturers, computer staff, administrators and other ‘academically related’ staff. We are the largest trade union with over 1600 members at UCL. Many of our leading members are ‘fixed term’ staff.
We need to enforce good practice across UCL. We cannot do this alone. You can be our eyes and ears in the department. We can make sure you get assistance. But we need your help.
Join UCU. Let's make sure no one is left behind.
Frequently Asked Questions
" I’m coming to the end of my research grant. We have new grants starting soon but my supervisor wants to advertise the posts. He says that because I wasn’t named on the grant application, he’s perfectly entitled to do so. Is this correct?
No. If someone is named on the grant application and they are available to take on the duties, then your PI is entitled to directly appoint them to the project. (This may have been a condition of the grant funding body).
But the converse is not true. PIs are only entitled to advertise unfilled posts once the list of internal ‘at risk’ candidates has been exhausted. This is because the responsibility is on the employer to show why your impending redundancy cannot be avoided by redeployment.
If you are within the last three months of your funding and are therefore deemed to be at risk of redundancy, your supervisor will know this. Provided that your current transferrable skills are such that you could be placed in any new post (including one in your current research group) with a modicum of training, you are entitled to an interview for that post before it is advertised. If, following this interview, you are not appointed, then you are entitled to a valid explanation as to why.
" My supervisor does not want to appoint me to a new post because he says that he has concerns about my performance. This is the first time that he has said anything to me formally about this. Can he do this?
No. The disciplinary and capability procedures must be applied equally to all staff.
If your supervisor has concerns about your performance, time keeping or attendance he must use the appropriate formal procedure. He cannot invoke concerns that were not previously raised in order to deny you the right of continuing employment. This would constitute a serious breach of the Fixed Term Employees Regulations.
" I was an hourly paid College Teacher who was recently put on a pro-rata fixed term contract. The course I teach is centrally funded and my Head of Department tells me he expects it to continue for years to come. But I have only been given a one-year (or less) contract. Is this acceptable?
Almost certainly not. Since the duties are likely to continue the contract is likely to recur. The ending of any post is a redundancy.
To put it simply, offering a fixed term contract is to state, in advance, that there is a known risk that the duties will end at a particular date, i.e. to predict the redundancy of a post. However, this is not always the same as stating that the particular staff member would be made redundant.
UCL’s guidance on contracts specifies that fixed term contracts are to be used where the duties are explicitly known to end at a given point - either because they cover for the work of another (sabbatical leave, maternity leave) or because they are short-term (9 months or less) and well-defined. If duties are likely to recur next year, only an open ended contract is appropriate.
If duties are directly comparable with those of other colleagues, and normal staff development would mean that duties might evolve, then it is not reasonable or fair to suggest that your post could be terminated rather than any other colleague on a permanent contract. In this situation an end date should definitely not be included in the contract.
See also: part
time workers' rights
" What do these end dates in open ended contracts mean? Am I permanent or not?
There is some confusion at the moment regarding the use of end dates in contracts.
These dates should have no bearing on your legal rights. UCL treats the ending of Fixed Funding as grounds for selection for redundancy (calling a Termination Meeting). There is a real danger that funding end dates are code for “long-term fixed-term contract” and determines how staff are treated. For this reason we do not believe that this statement should be included in the contract letter.
The law only recognises two kinds of contract - fixed term and permanent. UCL’s use of the phrase ‘open ended’ for ‘permanent’ may remind us of own mortality, but in a technical sense these are permanent contracts. Any permanent contract may be ended by a redundancy.
The UK Regulations are meant to enact into law EU Directive 1999/70/EC on fixed term contracts. The Principle of non-discrimination (clause 4) says that less favourable treatment of staff (including selection for redundancy) should not take place "soley because they have a fixed-term contract or relation." The persistence of end dates could represent a relationship, even if it is not part of the contract. Moreover clause 3 (1) says:
- For the purpose of this agreement the term "fixed-term worker" means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.
Therefore the use of funding end dates to select a staff member for redundancy would bring the staff member back into the remit of the Fixed Term Employees Regulations 2002, even if UCL denied that s/he had a Fixed Term contract.
" I am interested to know whether there are any benefits for me as a teaching assistant from the new legislation. I am given a series of contracts Sept-June with variable, normally pitiful, amounts of work, seemingly decided more or less on the whim of whoever is allotting the teaching. How does this help me?
There are benefits, but the main difficulty is in enforcing them (which is why all union members should support our campaign for best practice).
There are two principal gains:
- Once in post, it is harder for an employer to dismiss a staff member with a fixed term contract. This is because it is a redundancy, and redundancies must be ‘fairly selected’. You can also ask for redeployment. The employer could be challenged to demonstrate that your managers are being fair in the allocation of duties, and you should be accorded the same rights as any other staff member (e.g., to attend staff meetings, etc).
- You should be paid a proper pro-rata rate based on your working hours (not contact hours) and (just like any other full time employee) have preparation time and staff development time (i.e., time to write lectures, etc.) paid for as part of your contracted hours. If you find that you are working more hours than you are paid for, then this should be challenged (tip: keep a diary). The union can give you support and advice on all of these points.