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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Fixed Term Contract and Redundancy Entitlement

Resolved Question:

Hi I have been working for the NHS for nearly three consecutive years and have almost 5 year reckonable service. I am working on a fixed term contract which started on 24th Jan 11 and is due to end on 31st March 13. My contract and the fixed term contracts policy for the Trust says I am entitled to statutory notice or 12 weeks notice [whichever is greater]. I received a letter serving me notice on 18th February 2013 [despite having reminded HR in the first week in January] with no reason for 'dismissal' only that "the trust can no longer renew your contract" A variety of information has suggested I will be entitled to redundancy pay or severance pay [due to a breach of contract on their part] but they are indicating that this may not be the case. I was originally employed through some externally provided funds [from primary care trust] i.e. the funds were awarded to a Clinical Academic Lead within the trust who is no longer in post. They were to build the capacity of research within our trust division. Since this time the trust merged with another larger trust which have an R&D lead and my post has not been agreed for re-funding. So, the trust does not want to fund my post any longer [I suspect, they haven't actually provided a reason] which to me suggests I fit the criteria for redundancy payment. I have a meeting with HR on Thursday of this week to discuss this further. Where do I stand?

Submitted: 4 years ago.
Category: Law
Expert:  Ben Jones replied 4 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 exist to prevent the less favourable treatment of fixed-term employees. They ensure that fixed-term employees have more or less the same rights in the workplace as permanent employees.

When it comes to the expiry of a fixed-term contract, then that is regarded as a dismissal in law. Any employee whose fixed-term contract expires without renewal on the same terms as before will have the same rights to unfair dismissal protection and redundancy payments as a permanent employee, as long as they have the required service.

If a fixed-term contract is ended or not renewed, it must be for one of the potentially fair reasons set out in section 98 of the Employment Rights Act 1996:
• Capability
• Conduct
• Redundancy
• Illegality
• Some other substantial reason (SOSR)

Employers should establish which reason they seek to rely on in good time before expiry of the contract, and will need to follow a fair procedure. In many cases, the non-renewal of a fixed-term contract will be potentially fair by reason of redundancy, but in other cases there may be another valid reason, depending on the employer's reason for using a fixed-term contract in the first instance.

If the employer relies on redundancy they will have to check if suitable alternative employment can be offered to the employee instead of redundancy and will have to make a redundancy payment if the employee has more than two years' service.

Employers should not assume that the fact that a fixed-term contract has a specific end date releases them from the obligation to give an employee notice of termination. How much notice is required will depend on the contract, or in the absence of anything in there it would usually be the minimum statutory notice of one week for every full year of service, up to a maximum of 12 weeks' notice.

So at this stage, it is important to establish with the employer which one of the reasons above they are relying on to end your contract. If they do not use redundancy - ask them for proper justification as to how your situation does not amount to a redundancy. If you are not satisfied with their answers then you can challenge this further at an employment tribunal if necessary.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 4 years ago.

 


FOR BEN JONES PLEASE



When you say SOSR what potential reasons could this encompass? I can't see that my situation would amount to a SOSR.


 


Also, because they are in breach of contract by not providing me with the contractual notice period will this impact on what I am entitled to?

Expert:  Ben Jones replied 4 years ago.
SOSR can include a wide range of reasons, in the case of fixed term contracts it is often the case that if the employer can show that there is a genuine situation in which the employee has been informed that they are employed for a particular period, or a particular job, on a temporary basis, then SOSR can be justified. So it mainly comes down to whether your employment on a FT contract was for a specific purpose which the employer or you, knew would end at the expiry of the contract.

In terms of breach of contract all you can claim in the circumstances is the amount you would have been entitled to receive, not anything extra.

As 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. I can then continue providing further advice and answer follow up questions if needed. Thank you.
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