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.

Challenging less favourable terms

A fixed-term employee can ask for written reasons from the employer for the difference in treatment compared with a permanent employee.

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.

Penalising fixed term employees for asserting their rights under the Regulations is unlawful.

Becoming a permanent employee

From 10 July 2006, permanent status can be obtained if:

• 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.

Employment Status

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).

What matters is how the relationship actually works in practice - ie. the substance not the form.

This includes:

• 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 Courts.

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 this space!

Note: this article is not intended as legal advice on a particular case.

© Roy Mincoff / NUJ 2006