Historic win for fixed-term employee

'No objective reason' to deny permanent post to researcher, says tribunal. Melanie Newman reports

June 5, 2008

An academic employed for nine years on a succession of fixed-term contracts has won a landmark legal battle for a permanent contract.

In a case with implications for the 60,000 UK academics on fixed-term contracts, an employment tribunal has said that the University of Aberdeen could not refuse a researcher a permanent contract on the grounds that funding for such posts is short term.

The University and College Union said that it would now use the ruling to challenge other employers across the sector.

Aberdeen had employed Andrew Ball, a research fellow in zoology, on three successive contracts since 1999, each linked to external short-term funding.

His situation was not unusual - only about 8 per cent of research staff at the university are permanent. In its School of Biological Sciences, 97 per cent of researchers are on fixed-term contracts and, of these, 70 employees have been continuously employed for six or more years.

With his third contract due to end last month, Dr Ball asked the university to make his position permanent. He cited employment law that states that any person continuously employed for four or more years on fixed-term contracts should be treated as permanent unless the employer can justify not doing so "on objective grounds".

The university refused, saying: "We believe the uncertainty of funds is an objective reason for the continued use of a fixed-term contract."

With the support of the UCU, Dr Ball took the university to the Aberdeen employment tribunal, which said that short-term funding did not automatically justify keeping an employee on a fixed-term contract beyond four years.

Dr Ball told Times Higher Education that the system treated researchers like "bits of plastic". "As soon as our contract is finished, we are disposed of. Little is provided by way of redundancy support. There is no sense of security."

The tribunal found that Dr Ball had suffered "genuine disadvantages" resulting from the lack of a permanent position.

He was not able to make applications for grant funding in his own name, preventing him from building up a track record for research, and has been "preoccupied with the possibility of unemployment, which is unsettling", the tribunal said.

Aberdeen argued that it would cost £15 million to employ all its contract researchers beyond the limits of their contracts.

The tribunal said this was "a red herring since in the real world there was simply no possibility of this happening", pointing out that Aberdeen could still make the researchers redundant if initial funding ran out.

The university has a redundancy policy enshrined in its ordinances. In theory, this applies to fixed-term and permanent staff but in practice it was not used for the former. "In this arguably discriminatory and illegal approach, they were not challenged by the unions who did not create a fuss or insist that the redundancy policy be followed," the judgment said.

A member of the university's human resources department told the tribunal that the union had "turned a blind eye" and spoke of a "gentlemen's agreement" on the matter.

"The tribunal did not consider these justifications to have any merit," the judgment said, ruling that the university's action amounted to less favourable treatment of fixed-term employees, a breach of employment law. Aberdeen said its practices reflected the terms of an agreement with local unions, but it would now revise its approach.

UCU general secretary Sally Hunt said: "We will be using this victory as a stepping stone from which to challenge other employers."

melanie.newman@tsleducation.com.

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