Is there anything I can do....

surfer9

So I have worked for a company for 2 years with repeated short-term (6 month) contracts. I have always been open to signing permanent contract, but they have not offered it.

Somebody in a similar position to me has recently left the company.

I have just found out the someone they employed as his replacement was given a permanent contract.

As far as I'm aware - as I'm a 'temporary' employee in a similar position - that job should have been offered to me first?

I have also found out that our company has lost a big contract and therefore they are letting me go once my contract is up at the end of next month.


Is there anything I can do?

Can I insist they have to keep me on - or even sue for loss of earnings as they didn't offer me the permanent role when a fellow colleague left recently?


Thanks for your help.

sangie595

surfer9 wrote: »

So I have worked for a company for 2 years Over two years, without any break. In which case you have exactly the same rights as anyone else with two years service. There is no difference just because you have had temporary contracts with repeated short-term (6 month) contracts. I have always been open to signing permanent contract, but they have not offered it.

Somebody in a similar position to me has recently left the company.

I have just found out the someone they employed as his replacement was given a permanent contract.

As far as I'm aware - as I'm a 'temporary' employee in a similar position - that job should have been offered to me first? You are wrong. There is no such law.

I have also found out that our company has lost a big contract and therefore they are letting me go once my contract is up at the end of next month.


Is there anything I can do?

Can I insist they have to keep me on - or even sue for loss of earnings as they didn't offer me the permanent role when a fellow colleague left recently? No to both. You can't force anyone to employ you, and trying to do so is the fastest way to end your employment. And you had no right to the job so you can't sue them for not giving it to you.


Thanks for your help.

If you have two years or more, then the temporary nature of your contract does not change your employment rights, and that includes the right to a fair dismissal. So if there is a redundancy situation there must be a fair process completed. You cannot be chosen simply because your contract is temporary - that would be a detriment relating to a fixed term contract, and in itself unfair in law.

At this stage you need to ask (assuming you are over that two years) on what basis you are being dismissed and how the decision was made that you would go.

cupid07

If you have an "end date" for the short term-employment then you won't get far stating "unfair dismissal" as the terms were stated in the contract you signed, two years or not.

surfer9

Am I not correct in saying that if a permanent position comes available at a company - then any temporary employees in the same/similar position should be offered the job?

If I'm wrong in my thinking - then that's this case closed.

If I'm correct - then as the job was not offered to me - how do I stand up for myself - what can I do?

sangie595

cupid07 wrote: »

If you have an "end date" for the short term-employment then you won't get far stating "unfair dismissal" as the terms were stated in the contract you signed, two years or not.

Sorry but this advice is incorrect, for the reasons I have already given. If an employee has more than two years service then they have the right to claim unfair dismissal. It then becomes an issue of the reason for the dismissal, and expiry of the contract term does not make it fair. If there is a redundancy situation, which this appears to be, then the employer must still undertake a full redundancy process including pooling of employees affected, consultation, suitable alternative roles and fair selection processes. The only reason to not do this is if there is no other post of the same nature within the jobs at risk, in which case the employer only has a choice of one person. To select someone solely on the grounds that their contract is fixed term is a detriment under the law and would be unfair.

surfer9 wrote: »

Am I not correct in saying that if a permanent position comes available at a company - then any temporary employees in the same/similar position should be offered the job?

If I'm wrong in my thinking - then that's this case closed.

If I'm correct - then as the job was not offered to me - how do I stand up for myself - what can I do?

No, you are not correct.

cupid07

sangie595 wrote: »

Sorry but this advice is incorrect, for the reasons I have already given. If an employee has more than two years service then they have the right to claim unfair dismissal. It then becomes an issue of the reason for the dismissal, and expiry of the contract term does not make it fair. If there is a redundancy situation, which this appears to be, then the employer must still undertake a full redundancy process including pooling of employees affected, consultation, suitable alternative roles and fair selection processes. The only reason to not do this is if there is no other post of the same nature within the jobs at risk, in which case the employer only has a choice of one person. To select someone solely on the grounds that their contract is fixed term is a detriment under the law and would be unfair.



No, you are not correct.

sorry thats incorrect. If you have an end date in writing, and you serve that time - its not unfair dismissal. This is why temp contracts are so rife.

Taken from gov website:

"Fixed-term contracts will normally end automatically when they reach the agreed end date. The employer doesn’t have to give any notice."

The terms were fair as they were laid out in the contract. The only time this doesn't apply is when the contract is permanent.

Takeaway_Addict

cupid07 wrote: »

sorry thats incorrect. If you have an end date in writing, and you serve that time - its not unfair dismissal. This is why temp contracts are so rife.

Taken from gov website:

"Fixed-term contracts will normally end automatically when they reach the agreed end date. The employer doesn’t have to give any notice."

The terms were fair as they were laid out in the contract. The only time this doesn't apply is when the contract is permanent.

After 2 years consecutive service Redundancy procedures are required, otherwise employers could just keep people on constant fixed contracts to avoid costs.

sangie595

Takeaway_Addict wrote: »

After 2 years consecutive service Redundancy procedures are required, otherwise employers could just keep people on constant fixed contracts to avoid costs.

But some people are such experts that they insist they are correct when they are not.

sangie595

cupid07 wrote: »

sorry thats incorrect. If you have an end date in writing, and you serve that time - its not unfair dismissal. This is why temp contracts are so rife.

Taken from gov website:

"Fixed-term contracts will normally end automatically when they reach the agreed end date. The employer doesn’t have to give any notice."

The terms were fair as they were laid out in the contract. The only time this doesn't apply is when the contract is permanent.

No it is not incorrect - you are. And I have already explained why. There is actually no such thing as a permanent contract in law either, so it would be incredibly difficult for you to be correct! Once someone has two years service, whatever the type of contract is called. all employees have exactly the same rights in law, and there is no benefit to the employer in any temporary form of contract once the two years are up. In fact there are specific pieces of legislation that say that - the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

Relying on a single line of NOT legal advice, completely out of context, is never a good basis for advising someone.

I refer you to a somewhat better explanation:
"If the contract has subsisted for the requisite period to bring an unfair dismissal claim or if there have been a series of contracts which have lasted for that period the employer must be able to establish a potentially fair reason for the dismissal. The potentially fair reasons are capability, conduct, redundancy, some other substantial reason or contravention of a statutory obligation. The employer must establish a fair reason prior to the end of the contract and follow a fair procedure, appropriate to the reason for dismissal established. If an employer is not sure how to treat the end of a fixed term contract they should contact their HR Rely advisor for further guidance"
http://www.weightmans.com/pdf/guidanctofixedtermcontracts.pdf

If there are other employees in the same, or broadly similar positions for whom the potential for redundancy applies, to fail to run a fair process which involves ALL those employees constitutes a detriment for being on a fixed term contract, and would then be an automatically unfair dismissal.

cupid07

Taken from fox williams:
Although the expiry and non-renewal of a fixed term contract is a dismissal, ordinarily the ACAS Code will not apply. However, it is best practice to go through a short process with the employee if there is not going to be a renewal of their contract. Note that, after 1 years’ service, fixed-term employees are entitled to a written statement of reasons for not renewing the contract.

If you are terminating employment prior to the end of a fixed term, ordinary unfair dismissal principles apply. The termination should be treated as if terminating a permanent contract and the ACAS Code should be followed if the termination is related to performance or conduct, or a redundancy consultation should be undertaken if relevant.

Good luck trying to "prove" its unfair dismissal when you have an end date in writing. A similar thing happened to myself on a fixed term contract, with two years service - you can only prove its "unfair" if you were dismissed on grounds of sexuality, gender, race ect. Trying to prove any of those things is extremely difficult. Therefore its just a dismissal and the OP may get about one/two weeks worth of redundancy money if they go to tribunal.

sangie595

cupid07 wrote: »

Taken from fox williams:
Although the expiry and non-renewal of a fixed term contract is a dismissal, ordinarily the ACAS Code will not apply. However, it is best practice to go through a short process with the employee if there is not going to be a renewal of their contract. Note that, after 1 years’ service, fixed-term employees are entitled to a written statement of reasons for not renewing the contract.

If you are terminating employment prior to the end of a fixed term, ordinary unfair dismissal principles apply. The termination should be treated as if terminating a permanent contract and the ACAS Code should be followed if the termination is related to performance or conduct, or a redundancy consultation should be undertaken if relevant.

Good luck trying to "prove" its unfair dismissal when you have an end date in writing. A similar thing happened to myself on a fixed term contract, with two years service - you can only prove its "unfair" if you were dismissed on grounds of sexuality, gender, race ect. Trying to prove any of those things is extremely difficult. Therefore its just a dismissal and the OP may get about one/two weeks worth of redundancy money if they go to tribunal.

You insist on what you want. The law says differently. As, in fact, does the quote you have posted - a redundancy consultation should be conducted, and that involves a FULL redundancy process as I have outlined. But the CAS code is no longer mandatory, so I do wonder when this was written. Certainly, your experience isn't any evidence that the law was followed in your case - it is just what happened to you.

Anyway, I am not going to argue any longer. I have given the correct advice and anyone who wishes to follow it may do so. If they would prefer to follow yours and give up, that is their prerogative.