December 2019
MANAGEMENT GUIDELINES ON THE USE OF FIXED TERM CONTRACTS OF EMPLOYMENT
1. SCOPE AND PURPOSE
This document outlines Trust guidelines to managers on the use of, recruitment to and termination of fixed term contracts and should be read before a Fixed Term contract is advertised, extended or is due to expire.
The guidelines have been written to ensure that the Trust fulfils its legal duties under the Fixed Term Employees (Prevent ion of Less Favourable Treatment) Regulations 2002. The Regulations require that fixed term employees are not treated less favourably than comparable permanent employees on the grounds of their fixed term status, unless it can be shown that there is an objective reason to justify such treatment.
A fixed term employee for the purposes of this document is a member of staff who works under a Trust employment contract which terminates on a specific date in the future.
It is essential that managers understand all aspects of the use of fixed term contracts before putting one in place as there are significant implications, such as the potential for redundancy pay at the end of a fixed term contract.
These guidelines do not apply to agency staff.
2. PRINCIPLES
2.1 The Trust is committed to promoting job security and will only issue fixed term contracts in preference over permanent contracts when there are good business reasons for doing so, as outlined below in section 3.
2.2 Members of staff on fixed term contracts receive pay and conditions of service equivalent to that of comparable permanent members of staff, unless different treatment is objectively justified.
2.3 The termination of a fixed term contract constitutes a dismissal in employment law. The termination of fixed term contracts must therefore be carried out in accordance with the statutory dismissal procedures, as outlined in the Employment Act 2002.
3. USE OF FIXED TERM CONTRACTS
3.1 There are situations in which there are sound business reasons for preferring fixed-term contracts over permanent contracts. Where the need for a particular role or type of employee is either finite or uncertain, fixed term contracts provide the Trust with necessary flexibility. The following reasons would potentially justify issuing a fixed term contract: a) The funding for a post is not secure in the foreseeable future. b) The requirement for the post in its current form may change significantly or cease in the foreseeable future. c) The number of people required to carry o ut a particular role is likely to reduce in the foreseeable future. d) A long term absence has to be covered (e.g. sickness or maternity leave).
e) The type of employee required for a role may change in the foreseeable future: e.g. Trust grade medical posts.
3.2 Agency workers, doctors on rotation, staff on secondments or acting up arrangements are not employed on fixed term contracts. Separate guidance is available on Acting Up arrangements and Secondments. This guidance document does therefore not apply to these workers. Advice relating to doctors on rotation can be sought from the Medical Staffing team, and for other workers, advice can be sought from Employee Relations if required. 3.3 Repeated fixed term contracts will count towards continuous and reckonable service, even if the contracts are for different projects. 3.4 If an employee continues to attend work after their official fixed term contract end date, and the end date of their contract has not been made clear by the Manager, the employee may be able to claim permanent status, by reason of implication. Managers must therefore always ensure they are clear of the fixed term contract end date to the individual, particularly when extending and this is provided within a meeting and ideally in writing. 4. RECRUITMENT TO FIXED TERM POSTS
4.1 Where a fixed term vacancy is required and the reasons for issuing a fixed term contract is as outlined in paragraphs 3a -3e above, a recruitment process is required. This recruitment process will be the same as required for permanent positions and the duration and the reason of the contract should be clearly stated in the advert. In situations where the appointed candidate (internal or external to the Trust) has continuous service (not reckonable service) within the NHS, the manager should consider whether a secondment arrangement would be a viable alternative to a fixed term contract - please see also the Trust's guidance on Secondment.
4.2 Adverts should state whether the contract is for a definite time period and the reason for the fixed-term contract. If there is no prospect of an extension to the fixed term contract, this should be stated. When a manager anticipates that they need an employee for approximately one year, the duration of fixed term contracts for s taff who are not doctors in training, should not be more than 12 months. This can be extended, if needed, at least three months prior to the expiry of the contract. Please seek advice from the Employee Relations team before extending beyond two years as this may have implications in terms of employment rights such as redundancy.
4.3 Recruitment literature for fixed term research posts should make it clear that if the post is not renewed at any point in the future and it becomes necessary to search for suitable alternative employment, this will include clinical service posts in addition to research posts.
4.4 If a fixed term post is going to be confirmed as permanent OR is going to continue to exist after the expiration of the current contract, without any significant change, the following guidance will normally apply:
a) If the fixed -term employee has been in post for more than twelve months AND the incumbent employee was recruited to the post as per the normal recruitment procedure outlined in paragraph 4. 1, the employee's contract may become permanent without any recourse to a competitive recruitment process.
If, on the other hand, the manager believes that the post should be subject to a competitive recruitment process, they should seek advice from the Employee
Relations team at least at least three months before the end of the current contract before proceeding.
b) If the fixed-term employee has been in post for less than twelve months OR they were not appointed in line with the principles outlined in paragraph 4.1, the permanent position will be advertised and the employee advised of their right to apply. 5. EXTENSION TO FIXED TERM CONTRACTS
5.1.1 The extension of a fixed term contract is subject to vacancy controls and authorisation via VAP/WAP process and this must be obtained before the extension is requested. 5.1.2 Should an extension to a fixed term contract be required, the Line Manager must arrange to meet with the employee to discuss the new end date of the contract and discuss any changes to duties. See Appendix 2. 5.1.3 Managers should be aware that payment for an employee will cease on the fixed term contract end date. It is therefore imperative that managers ensure where a role requires extension, this is actioned in a timely manner in order not to affect an individual's pay. 6. NON-RENEWAL OF FIXED TERM CONTRACTS
6.1 The non-renewal of fixed term contracts is a dismissal:
6.1.1 When a fixed-term contract terminates due to the expiration of the contract and is not renewed, the employee is dismissed. See Appendix 5 - Steps to Follow When Terminating a Fixed Term Contractor Due to The Expiry of the Contract. 6.1.2 Where a fixed-term employee has been in post for more than twelve months, the employee has a right to a written statement of the reason (e.g. due to the expiration of the contract) for not renewing the fixed-term contract. Where a Fixed Term Contract is coming to an end, the Line Manager must meet informally with the Employee to discuss the forthcoming end date of the contract. This meeting must be held as early as possible but ideally three months before the contract end date. This meeting is required even if the contract end date is stated on the contract and offer of employment. The Manager should make it clear why the fixed term contract is coming to an end. The Line Manager should invite the employee to this informal meeting in writing (see appendix 3 & 4). This approach helps to ensure that all parties fully understand the situation and reduces the potential for claims of unfair dismissal. 6.1.3 If an employee has two years' NHS continuous service, a full redeployment process is required. If suitable alternative employment is not found, a redundancy payment may be required from the service. In line with Trust policy, an employee with two years' NHS continuous service will have priority access to vacant positions within the Trust. 6.1.4 If an employee has less than two years' NHS continuous service, AND / OR where it is known that the contract will not be renewed at least three months before the end of the contract, (for example, where the original post holder returns from long term sickness absence or maternity cover), the employee's contract will be terminated at the expiration of the contract period if the employee has not secured suitable alternative post prior to the end of their notice period. A full redeployment process is not required, however staff may choose to join the redeployment register. Staff however will not have priority to access vacant positions within the Trust.
6.1.5 If an employee is underperforming or if there are concerns about their conduct or sickness and there is still a need for the post, the manager will follow the appropriate process (e.g. using the capability, disciplinary or sickness absence policy). The contract can only be terminated as a result of a dismissal by following the relevant policy. If there is a need for the post, a manager may not be able to objectively justify termination of the contract unless for the right reason. Please seek advice from the Employee Relations team under these circumstances. 6.1.6 Where a decision has been made not to renew a fixed term contract, this must be because the post has reduced or ceased (e.g. funding, project completed). There must no longer be a need for the post, if it is not to be renewed. 6.1.7 Ending a fixed term contract (even if it is on the date agreed) or not renewing a fixed term contract where there is still a need for the post may be considered unfair dismissal. Managers must therefore ensure they are able to justify why the contract is not being continued. 6.1.8 Where a fixed term employee is covering a permanent employee's post (e.g. maternity cover), unless there is still a need for the person by the time the contract ends, (for example the original post holder does not return), dismissal will not normally be on the grounds of redundancy. However, the Trust may still be able to offer support by being placed on the redeployment register. The fixed term employee must be clear at the start of the contract of the contract's expiry date. 6.1.9 Line Managers should contact the Employee Relations team before beginning the termination of employment or non-renewal of a fixed term contract, to discuss the possibility of their member of staff being eligible for redeployment and redundancy. 6.1.10 The reason for the dismissal will not always amount to a redundancy - this will depend on whether you can objectively justify that the employee is dismissed on the legal ground of Some Other Substantial Reason (SOSR) for not renewing the contract. For example, in line with the principles outlined in paragraph 4.1 and 4.2, where the appointed fixed-term employee had agreed to a fixed term contract at the outset, accepting that the fixed-term post would come to an end at a particular date or the occurrence of a particular event, without any further expectations.
6.2 Non-renewal and redundancy:
6.2.1 When a fixed -term contract is not renewed, the employee may be entitled to a redundancy payment, and will be entitled to the same redundancy rights as a permanent employee. Entitlement to NHS redundancy payments is dependent upon the employee having two years of continuous service within the NHS, whether served entirely at King's College Hospital NHS Foundation Trust or at other Trusts previously.
6.2.2 Where a permanent employee with more than two years' continuous service has been redeployed into a fixed-term post as part of a redeployment process, concerted efforts should be made to place the employee onto a permanent contract or redeployed into other suitable alternative post within the Trust as per the Trust 's Redeployment process, once you become aware that the fixed -term contract will not be renewed at least three months before the end of the contract period . Otherwise the non-renewal of the fixed-term contract will normally amount to a redundancy.
6.2.3 Where a fixed-term employee on a series of successive fixed-term contracts has been employed for 4 years or more with the Trust, the employee is automatically deemed permanent. Non-renewal of such a contract will amount to a redundancy.
6.2.4 In the event of redundancy an employee may be entitled to a redundancy payment in accordance with section 16 of the Agenda for Change NHS Terms and Conditions
handbook. Managers should therefore be aware of potential redundancy costs and that the payment will be deducted from their departmental budget/cost code or research budget/ cost centre. Because reckonable service from previous posts at King's and/or other NHS Trusts will count towards redundancy calculations, the potential cost of a redundancy is a maximum of 24 months of salary.
6.3 Statutory Dismissal Procedures:
Non-renewal of fixed term contracts is covered by the statutory dismissal procedure. Employees are legally entitled to:
a) A letter which i) informs them that the manager is proposing not to renew the contract beyond the end date of the contract ii) states the reason for the proposal iii) invites them to attend a meeting to discuss the matter iv) advises them of right to be accompanied.
b) A meeting to provide the fixed -term employee with the opportunity to discuss the proposal to dismiss.
c) The right of appeal against the decision not to renew the fixed term contract in line with the Trust Appeal Policy.
6.4 Helping staff to find suitable alternative employment:
Staff and line managers are responsible for leading and seeking alternative vacancies via the Recruitment Team within the Trust, with the support and advice of the Employee Relations team.
In addition, staff identified as at risk of redundancy OR those who meet the criteria set out in paragraph 6.2.2 are eligible for priority interviews as per the Trust's Guidance on Redeployment and Organisation Change policy.
6.5 Protocol for terminating contracts of fixed term employees (except doctors in training)
6.5.1 The Workforce Information team sends General Managers, Business Managers and Directors a monthly report listing the fixed term contracts that are due to expire within the next four months.
6.5.2 If a contract is to be extended, it is important that the line manager meets the employee and agrees extension and confirms in writing (Appendix 2).
6.5.3 If a manager proposes to terminate a fixed term contract , they should write to the employee (Appendix 3 and 5) to advise that they propose not to renew contract and invite the employee to a meeting. The meeting should be held as soon as possible, ideally at least three months before the end date of the contract.
6.5.4 At the meeting, th e manager can be accompanied by a management colleague or a member of the Employee Relations team.
6.5.5 Following the meeting, t he manager should provide the employee with written confirmation of the outcome of meeting (Appendix 4).
6.5.6 If the contract is terminated, the manager, with support from the Employee Relations team will work together to find the employee alternative employment via the redeployment process.
6.6 Protocol for terminating the contracts of doctors in training
6.6.1 Each month care groups should receive a list of fixed term posts for all medical staff with end dates in the next four months.
6.6.2 For rotational posts the end date should be confirmed during care group review meetings with a Medical staffing coordinator for each care group. The contract will be ended automatically, unless otherwise advised by the care group.
6.6.3 For any terminations outside the rotational posts, such as stand-alone, non-training or locum appointment for training posts, or where the end date changes from the original rotation date, a termination form must be sent by the care group to payroll at the latest by the first of the final month of service
7 FIXED TERM CONTRACTS AND MATERNITY LEAVE
7.1 If a member of staff is on a fixed term contract which expires after the 11th week before expected week of childbirth (EWC) but before 6 weeks after the actual date of childbirth, the contract is extended to enable the member of staff to receive 26 weeks Ordina ry Maternity Leave. Maternity payments are calculated according to the normal qualifying criteria. The contract should not to be extended to cover Additional Maternity Leave.
7.2 If a member of staff is entitled to receive Statutory Maternity Leave but the contract expires after the 15th week before the EWC the contract is extended so that the member of staff receives the full entitlement to Statutory Maternity Pay.
For further information, see the Trust's Maternity Leave Guidelines.
8. MISCELLANEOUS POINTS
8.1 The contractual notice period for all fixed term contracts should be no more than twelve weeks unless there are good business reasons for making it longer.
8.2 Without an instruction to extend a contract, the payroll/HR Department will automatically suspend fixed term contracts without pay on the existing expiry date pending the completion and receipt of a change or leaver form.
9.3 For employees on fixed term contracts, entitlement to some types of paid leave, including special leave, will be calculated pro rata according to contract length. They will also not normally have the opportunity to undertake courses that cannot be completed within the period of the fixed term contract.
APPENDIX 1
Questions and answers on the termination of staff on fixed term contracts
Why have the Workforce Information Team sent me a monthly report listing the fixed term contracts due to expire within four months?
If you decide not to extend the contract you should inform the employee in writing that you propose to terminate the contract (Appendix 3). The employee may be due a notice period of up to three months. Therefore, it is important to act upon this information in time to serve the appropriate length of notice.
What should I do if I want to extend a fixed term contract? If the contract is to be extended, you need to do three things: a) meet employee and agree a new end date for the contract and confirm in writin g (see Appendix 2) b) send the payroll department a completed Change to Contractual Details Form to confirm the new end date ; you also need to inform IT that the member of staff is being extended otherwise their IT account will be ended. Unless you specify otherwise the amendment to contract will specify a notice period of one month c) complete VAP form to gain approval for the extension.
How do I terminate a fixed term contract? You should write to the employee to advise them that you propose not to renew the contract and invite employee to meeting to discuss. The employee has a right to be accomp anied to the meeting (appendix 3). You should hold the meeting as soon as possible. Please refer to Appendix 5 - Steps to Follow When Terminating a Fixed Term Contract Due to The Expiry of their Contract
Who else needs to attend the meeting? If the employ ee intends to come to the meeting unaccompanied you should undertake the meeting yourself. If the employee is going to be accompanied, a colleague (but not your own manager) or a member of the Employee Relations team should also attend.
What happens after the meeting? You should send a letter confirming the outcome ( Appendix 4) and then complete a leaver form via Greenlight.
What happens if the employee contacts me to say they would like to be redeployed? When an employee's contract is likely to be terminated they can try to secure another post in the Trust. The vacancy bulletin and NHS Jobs website should be brought to the employee's attention.
If the employee is at risk of redundancy, then the employee will be eligible for priority interviews as per the Trust's Guidance on Redeployment and Organisation Change policy . If the employee wants to apply for a post outside your de partment you should contact the Recruitment Team or the Employee Relations Team who will ensure that a priority interview takes place.
I want to change the fixed term post into a permanent post. Do I have to advertise? Please refer to the provision outlined in section 4.
I still need the fixed term post but I am not very happy with the person we have at the moment. Can I decide not to renew his contract and then re-advertise?
No - If you were to do t his after the employee's first 24 months of service, without following any other procedure to address your concerns, it would be difficult to defend a claim of unfair
dismissal. A decision not to renew a fixed term contract is a dismissal. If you need to dismiss someone because of their performance or conduct you should do so under the relevant policy / procedure, as you would for a permanent employee.
I do not have the funding for the post and so will not be able to extend the contract. Does this count as a redundancy?
This may constitute a redundancy depending on the full details. Please seek advice from the Employee Relations team.
APPENDIX 2
Strictly Private & Confidential <Name> <Department>
Date
Dear
RE: Fixed Term Contract - Extension
Following our conversation on <INSERT DATE>, I am writing to confirm that your fixed term contract, in the role of <INSERT JOB TITLE>, will be extended until <INSERT DATE>. I will authorise the Human Resources Department to extend your contract and you should receive an amendment to contract confirming the extension in due course.
If you have any questions about the content of this letter please do not hesitate to contact me.
Yours sincerely
Manager Job Title
c.c HR File
PLEASE DO NOT DETACH
I acknowledge receipt of this letter,
APPENDIX 3
Strictly Private & Confidential <Name> <Department or Home Address> Date
Dear *************
RE: Meeting to Discuss Fixed Term Contract - Expires <Insert Date>
You are currently contracted to work as a ******** POST TITLE on a fixed term contract that is due to expire on ****** DATE. The purpose of this letter is to advise you that I am proposing not to extend your contract beyond this date because ******REASON.
I would like to give you an opportunity to discuss this further. I suggest we meet in my office at ***** TIME on ****** DATE. You have the right to be accompanied by a trade union representative, colleague or friend not acting in a legal capacity. You should realise that I may confirm that your employment with the Trust will not be extended
Can you let me know as soon as possible if you intend to come to the meeting with a companion so that I can make the necessary arrangements.
EITHER: FOR STAFF WITH LESS THAN 24 MONTH'S SERVICE ON THE EXPIRY DATE OF THE CONTRACT: You are entitled to apply for any posts advertised in the vacancy bulletin between now and the date your contract terminates. If you would like any advice or assistance about applying for posts elsewhere in the Trust please do not hesitate to contact me or the Recruitment team.
OR: FOR STAFF WITH MORE THAN 2 4 MONTH'S SERVICE ON THE EXPIRY DATE OF THE CONTRACT: The Trust will do what it reasonably can to find you suitable alternative work. I will undertake a job search in our own department. In addition you are entitled to apply for any posts advertised in the vacancy bulletin between now and the date your contract terminates. If you demonstrate that you meet the essential criteria for a vacant post, you are entitled to a priority interview. If you wish to apply for a post, please let me or the Recruitment Team or Employee Relations Team as soon as possible.
If you have any questions about the content of this letter please do not hesitate to contact me. I have enclosed a second copy of this letter for you to sign and return as confirmation of receipt.
Yours sincerely
Manager Job Title
c.c HR File
PLEASE DO NOT DETACH
I acknowledge receipt of this letter,
APPENDIX 4
Strictly Private & Confidential <Insert Name> <Department or Home Address>
Date
Dear
RE: Fixed Term Contract
As discussed with you this letter is to confirm that your fixed term contract will be terminated on ******** DATE. The reason your contract is being terminated is INSERT DETAILS.
INSERT EMPLOYEE COMMENTS ON DECISION
You have the right to appeal against the decision regarding not renewing your contract. In order to exercise your right to appeal you should write to ************ within seven days outlining the grounds for your appeal.
FOR STAFF WITH 24+ MONTH'S SERVICE ON THE EXPIRY DATE OF THE CONTRACT ONLY: The Trust will do what it reasonably can to find you suitable alternative work. I asked you if you would like the Trust to help you find suitable alternative employment. You said *************. *********** BRIEF RECORD OF WHAT WAS AGREED/DISCUSSED.
If you have any questions about the content of this letter please do not hesitate to contact me.
I have enclosed a second copy of this letter for you to sign and return as confirmation of receipt.
Yours sincerely
Manager Job Title
c.c. HR File
PLEASE DO NOT DETACH
I acknowledge receipt of this letter,
APPENDIX 5 STEPS TO FOLLOW WHEN TERMINATING A FIXED TERM CONTRACTOR DUE TO THE EXPIRY OF THEIR CONTRACT
Steps Timeline
Step 1: Invitation to a meeting (Notification that FTC is Expiring
Manager should write to the employee notifying them that:
Their fixed term contract is due to expire and the reason for this They are invited to a meeting to discuss this and explore alternative options They have the right to be accompanied at the meeting by a work colleague or trade union representative
Reasonable notice of meeting to consider reasons for non - renewal of FTC Step 2: Meeting to discuss the expiry of the FTC
Manager and employee hold a consultation meeting to consider the expiry of the employee's fixed-term contract. The discussion should cover the following:
The reason for the end of their fixed term contract Any suggestions the employee may have to secure an extension to their contract (e.g. redeployment or funding suggestions) Any concerns/issues they have with the decision not to extend their employment Redeployment opportunities within the Trust and invite the employee to complete a redeployment application form
Verbal confirmation to be served before the date on which equivalent notice of termination starts Step 3: Outcome Letter
The manager will confirm the outcome of the meeting in writing to the employee within five working days, detailing:
Notice of dismissal (as set out in the employee's contract of employment) The reason for dismissal Advice on searching for suitable alternative employment / redundancy Holiday entitlement Their right to appeal against the non-renewal of their contract (within 7 days of the outcome letter)
Written confirmation to be provided within 5 working days of the meeting, which should be on or before the date on which equivalent notice would have been served. Step 4: Ongoing Consultation and Suitable Alternative Employment & Redundancy discussion (if applicable)
The manager should continue to consult the employee throughout the notice period on suitable alternative employment. In the event that a suitable alternative employment is not found or the employee declines any offer(s) of suitable alternative employment, the employee's fixed term contract will terminate on the specified expiry date.
During the notice period
Where applicable, the manager/Employee Relations advisor will obtain a redundancy quote and if eligible, arrangements to make payment will be discussed.