Ask the panel

July 14, 2006

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

I have been told that although I have been on a fixed-term contract for more than four years, my employer may be able to keep me on such a contract despite the new fixed-term employee regulations. If I am not put on permanent contract, does my employer have to tell me why and is there anything I can do?

* Our panellist from the University and College Union says: "The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are intended to limit the use of successive fixed-term contracts.

Under regulation eight, employees have the right to regard their post as permanent (ie, to ignore the part of their contract that limits its duration) if three conditions are met: the employee is on at least their second contract with the same employer or the contract has been previously renewed; the employee has at least four years' continuous service; and the use of a fixed-term contract was not justified on objective grounds.

"Only service from July 10, 2002, counts towards the four-year limit. Assuming you are on at least your second contract or have had your contract renewed, the test will be whether your employer is able to objectively justify the use of a fixed-term contract. If it cannot, your post is permanent.

"You do not have to do anything to assert your rights nor is your employer obliged to do anything. There is no definition of objective justification in the regulations, and whether or not the circumstances allow your employer to rely on this is a matter of fact in law.

"However, the UCU believes that the test of objective justification is a high one and that many higher education staff will be able to regard their posts as permanent after July 10.

"It would be good practice for the employer to confirm your post is permanent or otherwise. If you do not receive anything from your employer, but wish to confirm that your post is permanent, the regulations provide for you to write to them asking to either confirm this fact or give reasons why the contract remains fixed term.

"They must reply within 21 days and, if they claim there are objective reasons for the use of a fixed-term contract, they must give details. Even if the employer does cite objective justification (or does not reply to your letter within 21 days) you can challenge that decision at an employment tribunal. But you should seek advice from your trade union before taking any such steps."

She adds: "It is worth noting that the joint guidance agreed between employers and unions in 2002 on the use of fixed-term contracts talks about permanent contracts being the norm and there being a significant reduction in the use of fixed-term contracts. Employers should be embracing the spirit as well as the letter of the law and should certainly not be trying to make up objective justifications purely to justify current practices."

* Our panellist from the Universities and Colleges Employers' Association says: "The Fixed-Term Employees Regulations provide that a fixed-term contract will become permanent after four continuous years (from July 10, 2002) only if it is a successive contract (ie, it has been renewed or extended), and the continuation of the fixed-term contract cannot be objectively justified.

"There is no limit on the duration of a first fixed-term contract. Examples of objective reasons for renewing a fixed-term contract are not given in the regulations. However, the Joint Negotiating Committee for Higher Education Staff guidance on fixed-term and casual employment (see www.ucea.ac.uk), jointly agreed by Ucea and trade unions in 2002, provides examples of objective reasons for continuing a fixed-term contract.

"The circumstances of your case, which are not clear from your question, obviously need to be considered. The regulations do not state that the employer has to write to an employee who is to remain on a fixed-term contract, explaining why this is the case. If you believe your contract should become permanent from July 10, 2006, you can write to your employer requesting clarification of this and the reasons for your contract remaining fixed term. They will have 21 days to reply."

This advice panel includes the University and College Union, 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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