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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45306
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have had a permanent contract with my employer (in a school)

Customer Question

I have had a permanent contract with my employer (in a school) since Sept 2013. I have also had a temporary contract with the same employer since Oct 2014. The temporary contact (4 days a week) was for 'approx' 24 weeks which is now up. I have verbally agreed to remain in this temp post until July, although I have not been asked to sign an extension to this contract. A while ago I was asked if I wanted to continue in the job next year, I said I didn't want to work full time. The post was subsequently advertised and someone appointed for full time as of Sept '15. My employer has now asked me to resign from this temporary post. I don't understand why I need to resign. I assumed the contract would just expire at the end of its term. Why is she asking me to resign and should I resign?? Any advice would be gratefully received. Many thanks in advance.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have they said what will happen if you do not resign?
Customer: replied 1 year ago.
No. She's said she needs my resignation so she can inform the governors of the school. I just assumed my contract would terminate at the end of the school term.
Expert:  Ben Jones replied 1 year ago.
Hello, as you have two separate contracts each would be treated separately. For the purpose of unfair dismissal you get protection if you have had at least 2 years’ continuous service with the employer. That would be the total unbroken service you have with them, not just in the contract which is being terminated. However, in either case you have less than 2 years’ continuous service so you will not have rights against unfair dismissal. It means the employer could ask you to resign or sack you for more or less any reason, subject to a few limited exceptions which do not apply here.
However, you could argue that the contract was for a fixed term, because you had agreed with the employer to remain in it until July. It does not necessarily matter that you did not sign anything to confirm that – a binding contract could be in place just through a verbal offer and acceptance. So if you and the employer had agreed for you to continue in that contract until July you can advise them that it should be treated as a fixed term contract.
Even if you are not protected against unfair dismissal, you are protected against breach of contract. This means that if the contract was for a fixed term and the employer tries to terminate earlier than the expiration of the term, they will be acting in breach of contract. The only way they can do this is if the contract had a clause allowing them to terminate it early. You need to check the initial agreement to see if it contained an early termination clause. If it did then your employer can end the contract early and whilst you cannot be forced to resign, they could instead give you notice of termination. If no such clause existed then you could argue the breach of contract point and seek compensation for damages, which would be the equivalent of the pay you would have received had you been allowed to remain in post until the expiration of the contract.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
I knew I hadn't done 2 years service and therefore didn't have grounds for unfair dismissal. She isn't asking me to resign before the end date, as she still wants me to work until July. So there is no breach of contract issue either. So, if neither of these issues are relevant why does she need my resignation??? Why isn't she just giving me notice of termination or simply letting the contract expire?? Sorry if I'm being a bit stupid here but I can't seem to shake off the feeling that there's a reason she needs me to resign! Thanks for all your help.
Expert:  Ben Jones replied 1 year ago.
To be honest I have no idea why she is asking you to resign at the end of the contract but it could be just to ensure that the contract has terminated because if a contract is not terminated either by dismissal or resignation then it can be assumed to have continued on its original terms. So I presume she just wants to make the termination official. You resigning will not change anything though so if she wants that then you may as well do it as it will bring this issue to a close, without affecting your rights.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45306
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks for all your help, it's been really useful. Sorry to come back to you again but I just want to be really clear in my head before I resign. So to summarise....
1) either I need to resign or she needs to dismiss me to formally terminate the contract and
2) as I've done less than 2 years service if she dismisses me she can appoint someone else to do the exact same job (although 5 days rather than my 4) because I didn't apply for it. As she has already appointed someone else to start in Sept.
3) if I don't resign....and she doesn't dismiss me what happens then regarding the new appointment she has made??
Expert:  Ben Jones replied 1 year ago.
Hi, to answer your follow up queries:
1. Correct
2. Correct – you cannot challenge the termination of the contract as you do not have the necessary service. So she is free to replace you with someone else even if you were capable of continuing the job yourself
3. It depends on what happens with your position – will you simply be removed from the post? If that happens then you would be subject to a change of contract where your duties are changed or completely removed. In these circumstances you would usually be looking at challenging it as constructive dismissal where you would resign and try to pursue a claim against them for treating you that way but again that requires 2 years’ service so not really an option

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