forced to change from permanent to fixed term contract?

[needanewername]

Hi,

I would really appreciate advice from someone with a background in employment law here as I feel this isn't fair.

Basically the situation is that I work at a university in research but unlike most of my colleagues I am directly employed by the grant body that funds the project (on a permanent contract) rather than being an employee of the university with the funding coming from an external source. When the funding for this project comes up for renewal in about 6 months I have been told (verbally) that if it is successful I will have to transfer to a university contract. This will be much less favourable in terms of redundancy pay (only statutory rather than enhanced) and I have been told I will not be TUPE'd across but have to resign and take this contract on. Hence I will be starting again from zero and will therefore also lose benefits due to my long service such as 6 months full pay sick leave.

The main point that worries me is that I have private redundancy insurance to kick in after 3 months to pay the mortgage for up to 12 months as I am a single parent. However if I go onto this new contract it will be short term for 5 years. I have been told not to worry because there is the right for people on short term contracts now to become permanent (after 4 years I think) but as far as I can see this wouldn't apply to me as I would still be on my first contract. Hence, if I were made redundant in another 5 years my insurance wouldn't cover me as it only applies to permanent contracts. I know this is a way in the future but if this is the case I may as well cancel the insurance after I get moved to this new fixed term contract.

It just doesn't seem fair that I have to move to a less favourable contract, I will not be allowed to be made redundant and take my generous redundancy pay and then take up this new contract however if I refuse the new contract I will be made redundant.

I have to say that I have been told this verbally and informally and so presumably will have to meet with University HR to discuss this if the funding is renewed. So, it would be helpful to know the legal position on this to strengthen my case. (Of course, given the current climate the funding may not materialise and this may all be hypothetical)

Sorry for such a long post, thanks for reading!

You will have to negotiate and discuss this with them. You have the right to say NO

If it were me, I would go back to the guy that broached this with you and tell him that you are unhappy with his proposals and would like to stay on your current contract. ask him what would happen if you refused to agree to going on to a different contract.

You have not yet been FORCED to change. You must tell them that you have no wish to be "FORCED" to change your type of contract.

Join the Union.

Um, if your job is transferring to a different employer you don't have the right to say no I'm afraid, it's not up to you.

However, if your job is transferring to another employer it certainly should be a TUPE situation, meaning your terms and conditions of employment and continuous service would all be preserved.

A fixed term contract of 5 years is meaningless anyway as you have been rightly told that as long as you are continuously employed for 4 years you are permanent anyway.

However if you will work continuously on the same project it's important you get your t&cs (including any contractual redundancy pay and sick pay arrangements) and continuous service preserved.

Have your HR department told you you'd have to start your employment again just because the project is transferring to a different employer? That's stunningly poor employment law knowledge if so.

Hi flowerybeanbag,

I was hoping you would comment! What is happening is that if the funding is renewed from the same external source I would no longer be employed directly by them but transferred to a university contract. I am the only researcher in my department to be directly funded like this, everyone else is a university employee but mostly funded by external sources rather than on tenured contracts. The funders do not want to directly employ people working in external units as they have increased overheads.

So I will be paid by the same source to work on the same project but my employer will change. I will therefore have university T and C not my current ones. I have been told by my line manager that TUPE is not possible and I know that university T and C are inherently less favourable in terms of redundancy and sick leave, however all uni employees have the same T and C so I couldn't negotiate anything different.

HR haven't told me anything, this is just my line manager who may not be aware of the legal position. With the current climate I don't want to seem mercenary and I should be glad they are trying so hard to preserve my funding however I am quite concerned about this situation.

Moreover I am very worried that my (expensive) private redundancy insurance policy will be worthless as I read somewhere (legal website) that you are permanent after more than 4 years of short term contracts however if you are in your first contract of more than 4 years you would not be permanent until your contract is renewed. Hence with a 5 year contract I would not be permanent until my contract was renewed after 5 years however this is precisely when I would be likely to be made redundant if the funding ran out. So if this is the case I would be better off asking for 2 short term contracts to cover the 5 years of guaranteed funding!

It's not a question of anyone deciding whether TUPE is 'possible'. Either it is a TUPE situation legally or it isn't. If your job is the same but your employment is tranferring from one to the other, then it would be a TUPE situation, simple as that.

If HR haven't been involved it sounds like your line manager just doesn't know what he/she is talking about.

I'd suggest you go back to him/her and say you understand the rationale for transferring your employment over to the university (because presumably you do), however having taken advice you understand transfer of a job to a different employer would be a TUPE situation and you would be grateful if he/she would contact HR and then ensure you receive a formal letter outlining what the plan is and how it will affect you.

Thanks flowery. I don't think it will be possible to go to HR until the funding is renewed as HR have no record of me at the moment since I am not an employee.

However transfer will definitely happen (subject to funding) as it has been written into the funding renewal proposal that I am willing to transfer.

I am worried that pressure will be put onto me to resign and accept a standard university contract which will be inferior. Also, if I was TUPE'd presumably I would keep my permanent status whereas otherwise it would be a 5-year fixed term contract. My line manager said that this distinction doesn't really matter because the position would terminate after 5 years if funding wasn't renewed so "permanent" doesn't really mean that, but it is important to me, not least because it affects whether I am covered by my private insurance policy.

I think the best thing is to wait until I hear about the funding, at that point surely they couldn't easily get rid of me if the funding is renewed and I have named research worker status on the funding. Maybe the university HR will tell my line manager that I am not being unreasonable. Also, my line manager has proposed paying me a bit extra to compensate for inferior T and C but university HR did tell them that my salary would be decided by them according to my CV and I might actually end up with less!

HR don't need a record of you to advise your manager about the implications of taking you on as an employee.

You will keep your permanent status.

There's no question of you resigning. If they want to transfer over your employment they will need to write to you about it. You won't be paid less because your salary is part of your t&cs.

Thanks flowery, can I just ask one more question please.

At the moment I do not have an automatic annual increment written into my contract, what happens is that we have an annual appraisal and the funders decide on the basis of this whether you get a below or above adjustment for inflation/cost of living increase. Therefore, if I was TUPE'd over would something like this still happen or would my pay at time of transfer stay fixed for the next 5 years? Not such a problem at the moment but could be a problem if inflation took off!

If you have no contractual entitlement to a cost of living/inflation-related increase then you won't be guaranteed one, no. How is the pay managed for the university staff?

They are on a set point on a scale which is annually adjusted for inflation so their salary automatically goes up. Many of them also receive an annual increment in that they progress up a point on the anniversary of their start date (until they reach a bar). So from this point of view their university T and C are better but as I said they might start me at a lower point on the scale than what I am currently paid.

They wouldn't be able to reduce your salary, so might start you at the appropriate point perhaps - that's one of the things you'd need to get confirmation on.

But would they put me on their scale or would I stay at my exisitng salary which is on no scale, since my job was offered to me at a certain salary which has since undergone my individual performance-related annual adjustments, so is unique to me. Does TUPE mean my T and C are set in stone or just can't be worse?

I don't know whether they'd put you on their scale - that was a guess. They can't reduce your salary, so my guess would be that to make administration of salaries/appraisals easier they'd put you on their scale rather than keep you separate indefinitely. Your t&cs aren't set in stone forever, they are just protected by TUPE so you don't lose out.

OK thanks so much you have put my mind at rest. I thought either the T and C were set in stone or completely renegotiated, you are right that they would want me to be on their scale but hopefully I can keep the best bits of each ie be on their scale but keep my permanent status and enhanced redundancy conditions! Even if everything was set in stone under TUPE I would get a new contract wouldn't I to reflect the change in employer?

Not necessarily, no. Just a letter confirming the transfer would be fine, although some employers might issue a new contract.

The way I see it (and I have been involved in admin of Research Contracts ) the company or Institution who currently Commission the Uni to undertake the research contract are now negotiating with the Uni to extend the research ( or to start a NEW contract in the next 6 months ).

The OP needs to speak to the University Contracts Branch so that t6hey are completely aware of the potential impact on the status of the OP.

LC, what would the University Contracts branch do, would they not just accept that I have agreed with this as it has been written on our renewal proposal that I have agreed to transfer (although it was presented to me as a fait accompli, I didn't see the proposal until the final document)

Obviously they have not adequately or effectively communicated with you. First, they told the other party that you were happy to agree to the new terms. When in fact you had NOT given "informed consent"

second, your Line Manager has not discussed thouroughly with you all the ins and outs of the proposals.

If I were you, I would ask for a meeting with your contracts branch to carefully explore the terms of the proposed new contract, and for you to ensure that your rights and requirements were understood and taken into account. I would say that you were in a strong position now, given that the university apparently have not handled the negotiations very competently ( in my humble opinion)