Ask the panel

March 10, 2006

Worried about your employment, maternity, pension rights? Send your questions to The Times Higher advice panel.

My post is funded from a three-year project grant and this is my second fixed-term post at my institution since 2002. Does the new European Union legislation impact on my contract from July or only when my contract ends? Does the fact I am funded from project grants mean that my institution has an objective reason not to put me on to an indefinite contract?

* Our panellist from the Association of University Teachers says: "The EU legislation has been enacted in the UK by way of the Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations 2002 or the equivalent Northern Ireland regulations. Under the regulations, if you are on at least your second contract or your contract has previously been renewed and you have at least four years' continuous service and the employer cannot objectively justify the use of a fixed-term contract, then you can regard your post as permanent. Any service accrued before July 10, 2002, does not count towards the four-year requirement, so July 10, 2006, will be the first time employees will gain rights under this part of the regulations."

She adds: "If you meet the criteria, then your right to permanency will take effect on July 10 - so you do not have to wait for your next contract or renewal. Objective justification is not defined in the legislation but because you are funded from project grants, it does not give an employer the objective justification to keep you on a fixed-term contract. In each case, the employer will need to look at all the circumstances if objective justification is to be argued."

She points out that joint guidance from the employers and trade unions agreed in 2002 gives examples of objective justification (for any use of a fixed-term contract - including first use) that includes "where there is no reasonably foreseeable prospect of short-term funding being renewed nor of other external or internal funding being or becoming available. Where short-term funding has already been renewed, continuing use of the fixed-term contract would need to be justified by objective reasons." She says: "This clearly goes beyond the argument that all externally fixed-term funded posts remain on fixed-term contracts."

* Our panellist from Research Councils UK says: "It will be for universities to decide the issue but RCUK would not expect the fact that funding is from a research council project grant to be an objective reason for a fixed-term contract. It would anticipate that such a judgment would need the institution to consider the researcher's skills and expertise in terms of the research likely to be undertaken by the university in the future."

She also points out that the regulations say that an employee whose contract is renewed as fixed-term, or re-engaged under a fixed-term contract, after the four-year period has the right to ask the employer for a written statement confirming that he or she is now a permanent employee.

"The employer must produce the statement within 21 days of the request. If the employer maintains that the employee is still fixed-term, the reasons for this must be explained," she says.

She refers to the regulatory impact assessment (http:// www.dti.gov.uk/er/fixed ).

* The Universities and Colleges Employers' Association panellist says: "One of the provisions of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations, which came into force on October 1, 2002, is that the use of successive fixed-term contracts will be limited to four years unless the use of further fixed-term contracts is justified on objective grounds. For the purposes of this part of the regulations, service accumulated from July 10, 2002, will count towards the four-year limit. Whether or not short-term funding is an objective reason for a fixed-term contract will depend on the circumstances of your case. You can find more guidance in the document produced by the Joint Negotiating Committee for Higher Education Staff, Fixed-Term and Casual Employment - Guidance for Higher Education Institutions, available at www.ucea.ac.uk ."

This advice panel includes the Association of University Teachers, Natfhe, the Universities and Colleges Employers' Association, Research Councils UK, the Equality Challenge Unit and Rachel Flecker, an academic who sits on Bristol University's contract research working party.

Send questions to advicepanel@thes.co.uk

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