A Fix - or Fixture?
The Fixed Term Employees (Prevention of Less
Favourable Treatment) Regulations 2002 entitle employees working for a specific period or undertaking a specific task to an equivalent employment package to permanent employees. A contract is still for a fixed term even if a clause exists giving either party an option to terminate earlier.
There is an entitlement to a written statement of the main terms and conditions of employment.
A fixed-term employee can ask for written
reasons from the employer for the difference in treatment compared with a permanent
Comparison must be with a permanent employee doing the same or
similar work in the workplace, regarding eg. less access to training, benefits, job
opportunities, or even access to a pension scheme.
The employer has a defence if
the difference can be objectively justified to achieve a legitimate objective; it is necessary
to achieve that objective, and an appropriate way to do so (eg. Not financially viable for
inclusion in a pension scheme) - a specific project, seasonal work, temporary cover for
maternity leave or work that is externally funded by a single source for a fixed
period. Application can be made to an Employment Tribunal.
fixed term employees for asserting their rights under the Regulations is
Becoming a permanent
From 10 July 2006, permanent status can be obtained
- The employee has been continuously employed for at least four years under
a series of at least two fixed term contracts (or one that has been renewed) (disregarding
any time before 10 July 2002) by the same employer;
- and the
employer cannot objectively justify renewing or extending the last contract.
- Employees can request a written statement requiring a reply
within 21 days from the employer confirming permanency, or reasons why not.
- A dissatisfied employee can then apply to a Tribunal, whilst still
employed by that employer.
The Regulations have been introduced to prevent
the abuse of fixed term contracts. Many employees should benefit from this change and
obtain some security.
But note - these provisions only apply to
employees NOT workers.
So is a
freelance an employee - or an independent self employed contractor? That depends! - on
all the circumstances of the working relationship. Recently, Courts have determined
employee status more so than previously, (exceptionally even where the intention of both
parties has been to retain the self-employed status of the freelance).
is how the relationship actually works in practice - ie. the substance not the
- Is there mutuality of obligation, that is, to offer
work, and corresponding obligation to do that work
- day-to-day control
- whose equipment is used; is the work regular; on whose
premises; can the freelance - or casual - provide a substitute to do the
work; the pay, tax and holiday arrangements.
The list is not
exhaustive, and there are conflicting decisions of the
The NUJ recently succeeded in a Tribunal
establishing the employee status of a regular, once
a week, long time "casual" worker, winning that member and other
workmates employee status benefits.
So employment status
is a complex and grey area of law, which is fast developing. Watch
Note: this article is not intended as legal advice
on a particular case.