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Employment Law - Ending fixed term contracts

46 replies

sixtiesqueen · 22/01/2012 12:18

Bit of background - I work in a team on the NHS. There are 8 of us in total; two staff members are on substantive contracts which they received prior to the rest of us being appointed, though their jobs are of equal pay and position within the team. The remaining 6 staff members are on fixed term contracts of two years duration due to expire in April.

Our length of NHS service and individual circumstances vary. Two staff members have come from substantive posts into fixed term contracts and both of these members of staff have 20 years+ continuous NHS service. I personally have 13 years but only 3.5 continuous unbroken.

The work we do is around mental health and we work in two residential units where patients are placed from anywhere in the country. We are employed by an NHS trust but the actual funding comes from the local PCT because the residential unit is on their 'patch' - they pay said NHS trust for our services (hope that makes sense).

The PCT who put up the funds for our service recoup their money by billing the local PCTs for each individual patient. SO for example if we have a patient from Sheffield then they send our bills to Sheffield PCT and Sheffield pay. This system works well and we actually make a small profit for the trust.

As our contract renewal dates got closer, we began asking questions about when new contracts would be agreed. We were told at the end of last year (as a staff group) that a decision had been made that our contracts would be renewed because our work is highly regarded, much needed and we are making a profit. This was a huge relief to everyone as you can imagine.

However, last week there were some developments. The government has finally provided a central pot of money to provide services such as ours, which means we no longer have to bill 'home' PCTs. You might think this positive, but the amount we will receive is only £85k and this will fund only two nurses and none of the more specialist clinical staff (such as myself). In addition, we were told that the PCTs being replaced by GP consortium means we can no longer bill PCTs that don't exist.

As a result, we were called together by a senior manager last week and told that all 8 jobs were being 'displaced' and that we would all go on the redeployment register. We were told we would each receive 'aspirational interviews' and be matched against trust vacancies even if we only filled 50% of the recruitment criteria. The trust has a 'no redundancy' policy. We were given copies of the trust's 'Organisational Change' policies by the senior manager which set out the measures they would take to redeploy us.

We were given times to meet for an interview nine days later but it took some time to clarify what the interview was and who would be in attendance. No answers were forthcoming so we came to assume these were the 'aspirational' interviews and we each received redeployment procedure documents in our trays giving an outline of what the interview would discuss. I attended for this interview on my day off work expecting to be told what measures would be taken to redeploy me within the trust.

The meetings ran late because the manager conducting them hadn't arrived. I was first to be seen so while I was waiting, I checked my e-mails to find a letter from our union rep telling us that the afternoon's interviews would only be 'aspirational' for those on substantive posts. It also mentioned that we might want to have our union rep present but by the time this information was received, it was obviously too late to act upon it. The meetings were not aspirational at all - with the exception of the two substantive posts, both of whom were given aspirational interviews and are being given alternative opportunities. Those of us on fixed term contracts are simply being finished up.

The two substantive posts are being treated differently from the rest of us.

I am aware that fixed term employees accrue rights and I assumed we had a right to redundancy pay if we cannot be redeployed, much the same as people on substantive posts. Our employers are instead saying that our contracts are ending due to them decommissioning the service (because funding will cease) rather than because our workload (or need for service) has diminished. On this technicality they are not displacing us, nor offering alternative employment and are not paying redundancy pay. The manager who came to interview us will try to help us find other opportunities in the trust but these are very limited and it is clear that our employers feel they have no responsibility towards those of us on fixed term contracts.

The issue affects me less because I have less continuous service than some of my colleagues but in their case, one full time worker stands to lose in excess of £80k by not receiving redundancy. They want to know where they stand and whether to pursue a case against the trust.

As an aside, it is my understanding that NHS trusts are supposed to consult widely prior to decommissioning services. This includes consulting with service users, which they do not seem intent on doing. Serice users and their carers are appalled that the service is being withdrawn - one of the residential units attracts business largely because its residents will have access to our services and obviously they are worried that this will affect their future. I feel concerned about my job obviously but also worried about the implications for our patients.

Sorry for long post but can anyone advise where my colleagues stand? Thanks.

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flowery · 23/01/2012 15:55

Yes absolutely Katie, irrelevant anyway due to NHS internal policy being more generous.

ImpatientOne · 23/01/2012 15:56

Can't add anything really but in very similar position so marking my place! I thought that they had no obligation at the end of my fixed term contract so am interested to see these replies.

Lougle · 23/01/2012 16:08

The other thing to look into is that even if you aren't entitled to redundancy pay (which you are, imo), you are still entitled to redundancy 'notice'. As you say 'The trust has a 'no redundancy' policy, then you need to be asking why they feel they can make you redundant?

if their answer is 'because you are on a fixed term contract' then they are breaking the law.

This, imo, is what you need to be pressing. You are not 'fair game' because your contract was fixed length.

They have misunderstood their obligations, I suspect.

sixtiesqueen · 23/01/2012 16:18

Thanks for continued thoughts and advice.

To clarify - the trust have a no redundancy policy, however, they have not selected me for redundancy, they are simply saying that my contract will expire on April 18th and thereafter I am not redundant, just not employed.

The two substantive posts are considered 'at risk' of redundancy and are currently 'displaced'. I believe my own post ought to also be 'displaced' and 'risking redundancy' thus meaning I was treated the same way. The trust are using my employment on a fixed term contract (and that of my five colleagues) to end our contracts without any redundancy rights (or procedure). The law says we are redundant if they don't redeploy us. The trust says this isn't the case because of the reasons they no longer need the posts.

I am certain that HR must have consulted their lawyers prior to informing us our contracts will not be renewed. It does make me wonder whether their lawyer has found a way around standard procedure - surely they consulted him/her?

My contract dates may be April 19th to 18th but the wording refers to this period as 'two years'

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Lougle · 23/01/2012 18:34

This isn't a matter of 'redundancy' vs 'finishing up'. Regardless of the reason for not renewing your contract, you are 'redundant' if they don't give you further work at the end of your current contract.

The 'objective justification' clause is related to the selection for redundancy. They can deliberately make fixed-term employees redundant over permanent employees if they can 'objectively justify' their decision.

Incidently, they can do a lot of things, including giving less favourable contract terms if they can 'objectively justify' doing so.

What they cannot do is 'objectively justify' non-payment of redundancy pay, and you cannot waiver your right to it (regardless of what your contract may or may not say, they have to do it). This says "Fixed-term employees cannot be excluded from the statutory redundancy payments scheme. However, they can be excluded from contractual schemes if this is objectively justified."

So, you need to check your contracts carefully for the provisions made for redundancy. Make sure the AfC terms and conditions are applied to your contracts and check that you aren't restricted to statutory redundancy payments.

Regardless, though, you are entitled to redundancy pay and the other work done for the NHS will count unless there was a clear break in service.

sixtiesqueen · 25/01/2012 20:31

Just wanted to pop back and update - and ask more advice!

When I returned to work on Tuesday I found a letter waiting for me. Apparently these letters had been handed to my colleagues at the end of last Fridays 1:1 interviews but the manager had forgotten mine and left it in my tray, hence I didn't receive it for a few days.

The letter told us about the interviews and advised us we could have a union rep present. Obviously these had been handed out after the event, so it hadn't been possible to have a union rep present.

It's been five days now since we all had these 1:1 interviews to tell us our contracts were going to expire without any redundancy rights. All affected staff have had time to digest the matter and to do some digging around.

We all feel confused about our situation. It's clear to us that our employers ARE making us redundant and owe us redundancy pay if they can't find alternative roles. We have collectively asked advice from our union rep and he has gone to his regional advisor for further advice - they are meeting next week.

We have worked out that according to our NHS arrangements, two members of staff with long service would cost £80k and £40k respectively in redundancy pay. The rest of us might add up to another 20k collectively. Nobody believes anyone will be paid off.

A few of us have e-mailed our business manager individually regarding certain points requesting clarification following last weeks meeting. The manager has responded to us as a team saying she understands our anxiety and will meet with us 'shortly' but giving no time frame for this. Everyone is really stressed out - some won't be able to pay their mortgages - you can imagine.

I have a quandary about my own situation. I am contracted for 2.5 days per week but last November I was approached by a manager from another area to do some extra hours elsewhere. These extra hours (4 per week) come from a different pot of money and are not under threat, however the contract for those has also been set as fixed term and is due to expire in July. I wasn't aware I was going to sign a contract for these - thought it was just like 'overtime' but today I received a separate contract for them in the post. If I sign this, I will have two contracts with the same trust running. The 2.5 days will expire in April, the other 4 hours in July.

Obviously I can't afford to live on 4 hours per week of a job. I believe this contract has been created completely independently of what's going on with the other contract. i have 14 days to accept it.

I need to know where it leaves me if I sign that contract. Does it affect my redundancy rights for the other contract? It's not a 'suitable alternative employment' because the hours are so few.

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Missdestra · 30/01/2012 18:15

I'm so sorry to hear that you are in this situation but very pleased to know that I'm not alone in receiving this treatment!

I have four years reckonable and three years consecutive service.
March 09 I moved from a substantive post after a years service to a two year fixed term on proviso my employment rights would not be affected in anyway and I would be redeployed if my contract wasn't renewed.

Roll forward two years and project funding meant my post was no longer viable. There were a lot of issues with my contract termination including finding out by email two or three weeks before my contract was to end.
(N.b. if I ever get back in I'm joining unison ASAP ). Basically my line manager lied through his teeth to me while doing nothing at all with HR- they panicked and ended up extending contract by a fortnight.

Unfair dismissal, unpaid expenses, negligence etc were thrown out at internal grievance although manager is being retrained. I was told my contract had ended and I was entitled to nothing except for interview advice which I didn't receive and to look at SHOW.
Their argument was that redeployment had been standard practice so it was knocked out by workforce change policy which states that FT contracts will not be placed on redeployment register and in no circumstances was I redundant, just not employed.
I was confused as to how this works as it contradicts at least two active PIN guidines and NHS terms and conditions.

I have redundancy tribunal this week self representing myself against health board -missed time bar so didn't get past pre hearing review for other issues.

They WILL brassneck it. I received an offer last week for a quarter of what I should have received as a voluntary redundancy.

Stick it out and get everything in writing from manager, even if just email confirming what they have told you.

I've been through internal board and NHS PIN guidelines but would very much appreciate any suggestions.

Missdestra · 31/01/2012 19:27

FYI I have now been recognised as redundant so stick to your guns and best of luck ladies x

sixtiesqueen · 01/02/2012 10:13

What great news for you. I suspect many people don't stick to said guns or they sort themselves out with alternative employment as soon as they hear their jobs are at risk, thus saving NHS the bother of making people redundant.

So far we have heard nothing form HR, however I'm off sick today so can't say for sure (colleague said she would email me at home if there were any developments).

The way we are being treated is pretty poor. My colleague is due to have her contract terminated at the end of March but given her service record, she is entitled to 12 weeks notice. Nothing has been forthcoming. She has emailed them to point out they ought to have given her notice by now.

We have been trying to get clarification from HR about what's going on. We phoned them and they gave us the name of somebody to contact but when we sent this person an e-mail, she didn't reply and simply forwarded it back to our business manager. Everyone is stressed out. Horrible way to be treated.

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sixtiesqueen · 08/02/2012 16:19

Okay I said I'd come back and update.

Meeting with Business manager today. My contract is due to expire on April 18th which will be 2 years.

Manager said that our service is moving out of its accommodation on March 31st, after which point we will cease to provide a service to our patients. Myself and my colleagues are all on 2 year fixed term contracts as you might remember. Those on fixed term contracts have contracts which expire at varying points between now and September.

My job-share colleague had a 6 month contract but 26 years continuous NHS service. Her contract expires on March 31st.

One person has been 'given' a job with the organisation because there was a need. Another has been encouraged to apply for a vacancy. Two substantive people have been given other jobs. This leaves five of us.

Our secretary is one of the five. She is on maternity leave but her contract has expired therefore I think they have to offer her something as she is in a special situation.

My jobsharer colleague was told she is simply being finished up and has no rights of appeal and no right to redundancy as she was with this employer for less than a year. There is much on the internet (e.g. other NHS Trusts policies) which suggests we have terms and conditions in place to ensure previous NHS service is taken as 'continuous' for redundancy at the end of fixed term contracts. Trust disputing this. Union will fight it.

Myself and the other two have been told that our contracts will be honoured until they expire naturally but this will still not be a redundancy situation. We are told that we will receive new contracts with effect from 1st April which will run until the end date of our original contracts (in my case, 18 days). This is because our old contracts are invalid due to naming a specific service we will work for which is no longer viable. For the remaining time we work for the trust, we will have cases allocated to us in other areas of work (people who need assessment and advice).

i am a little concerned about this new 18 day contract. Firstly I don't understand why it is required. Our original contracts state that our employer can ask us to work at other locations as need arises.

Secondly, if it is worded that we are contracted to do 'specific' work, does this get the trust out of 'redundancy situation' upon expiry of the contract? For example, can they dismiss us for 'Some Other Substantial Reason' (SOSR) upon expiry of these short contracts by wording them cleverly?

I asked why it was not a redundancy situation at the end of two years. The business manager said it is because of the 1996 Employment Rights Act. My understanding is that fixed term employees were given new rights in 2002.

Any opinions?

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MissKittyMiddleton · 08/02/2012 17:05

All of the information and advice already given on this thread still stands. Just because your employer keep saying something doesn't make it so.

All of the previously given links explain why.

I think you should raise a grievance if you haven't already done so.

sixtiesqueen · 08/02/2012 17:29

I am reluctant to raise a grievance because my notice has not been served.

I agree with all advice on this thread that they are wrong about it not being redundancy.

However - I am suspicious that in allowing them to issue me an 18 day contract which will be worded differently, I am allowing them the opportunity to wriggle out of redundancy and say we are dismissed for SOSR.

My current contract clearly states my place of work might change. I can't see why I need a new 18 day contract.

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Lougle · 08/02/2012 21:12

DO NOT ACCEPT A NEW CONTRACT

Can I just say again:

DO NOT ACCEPT A NEW CONTRACT

To issue a new contract they have to go through the steps set out here

What you need to do is set out here

They are playing you. They think you know nothing and if they talk about it as if it happens all the time, you will think they are right.

THEY ARE WRONG.

sixtiesqueen · 09/02/2012 14:39

Right.

I have this feeling they are playing me but I don't know what their game is. I have looked at those links you have given me and though they make sense, they don't help me work out why they might be issuing me with an 18 day contract?

If my current contract runs out and I'm entitled to redundancy, is there something they can put into my new 18 day contract which will preclude this?

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sixtiesqueen · 10/02/2012 19:05

Shameless bump. Hoping Flowery might come back to thread!

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flowery · 10/02/2012 19:28

Hello, no nothing they can put in the new contract will affect your right to redundancy, which is purely about length of service. You could have 10 different contracts but as long as you've been employed at least 2 years continuously, it makes no difference.

The new 18 day contract might not be anything sinister. It might be just a bureaucratic "no one must be without a written contract even if a letter of extension would do fine" thing. You can't sign away your rights to redundancy anyway. When you get the new contract check your terms and conditions match and they haven't tried to do anything shifty with your continuous service date.

sixtiesqueen · 11/02/2012 14:18

Thanks Flowery.

And a big thanks to everyone who has contributed to this thread. It has really helped me sort out in my head exactly what my position is.

I have involved the union and repeatedly told management that I disagree with them about it not being a redundancy situation. I might not have been so confident without your input. If they don't renew my contract, I will go down the appropriate route.

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sixtiesqueen · 06/03/2012 15:28

Just coming back to this thread to update for those who gave us advice.

Our union recommended we take out a collective grievance since some of the team were redeployed and some weren't. The Trust continued to argue that it was not a redundancy situation and we are due to have our contracts expire in the next couple of months.

Our grievance is being heard this week. The 'management case' for refusing it as a redundancy situation was posted to us all at the weekend (ahead of the grievance meeting). This is a wadge of papers consisting largely of our job adverts, employment contracts etc. Amongst these papers is a press release from the department of health dated May 2011 announcing changes to funding for the type of work we do. There were no specifics about what the changes would be.

Also in the paperwork is an email from one NHS manager to another in January this year saying that the DOH had now announced the budget for our service would be £X - which was woefully short of what the service cost. This was the point at which they decided to disband our team with effect 31st March.

Their actual counter argument against our redundancy claim is simply that they have 'fulfilled their contractual responsibilities' and that we are being terminated for reasons of 'some other substantial reason' - namely that the funding now coming from the DOH is insufficient.

In addition, they are basically saying that this 'service redesign' was always expected after March 2012. Their case infers that we always knew we were on fixed term contracts so ought to have known this.

Three things stick out - (1) the DOH press release detailing changes in funding is dated May 2011 and we were all recruited 12 months prior to this.
(2) We were never told there was a service redesign or any change of funding arrangements on the horizon and (3) They actually told us our contracts wold be renewed (they said this in Autumn last year, which adds further weight to the suggestion that they did not anticipate this funding problem as they are suggesting.

This is all a right bollocks up, isn't it?

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ginmakesitallok · 06/03/2012 19:11

I can only talk from our policies re redeployment after fixed term policy (NHS too) which no doubt will echo what's been said above. Where we employ someone on a fixed term contract where that fixed term contract takes them over 2 years continuous employment our Board is very clear that our dept would then become liable for any associated redundancy costs. The source of fixed term funding is totally irrelevant to your employment rights. The fact that fixed term funding comes to an end does NOT affect your employment rights.
In these tought financial times it's been really hard employing anyone who's already got service under fixed term because the employing budget holder potentially becomes liable for substantial redundancy costs.

I think your employer is just muddying the waters with all the discussion about when they knew funding was going to come to an end - it doesn't matter. Fact is they are now making you redundant and you are entitled to redundancy payment. The reasons for redundancy aren't really an issue

ginmakesitallok · 06/03/2012 19:20

Oh and "knowing" that you are going to be in a redundancy situation also does not take away from your redundancy rights.

caroloro · 19/07/2012 20:50

May I ask what happened here? I am umming and ahhing about taking a three year fixed term NHS contract for a really excellent job, but am currently on a permanent contract in a reasonable job.

I really hope you came out with what you wanted - could you update us?

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