Short term workers

Equal treatment principle

Fixed-term employees have the right not to be treated less favourably than comparable permanent employees because they are fixed-term, unless the different treatment can be objectively justified. Permanent employees do not have the right not to be less favourably treated than similar fixed-term employees (one might say that this, in it's self, is discriminatory).

Who is a fixed term employee

Typically, any person with a contract of employment which is due to end when a specified date is reached, a specified event does or does not happen or a specified task has been completed, for instance:

• Seasonal or casual workers
• Cover for maternity, paternity or sick leave
• Cover for peaks in demand
• For a specific task

Certain categories of employee are not covered, such as:

• Some 'government' employed persons
• The Armed Forces
• Agency workers
• Students on work experience of 1 year or less
• Fixed term employees on a 'training to find work' scheme

Comparators and differences

A fixed term employee must compare themselves against a permanent employee who works for the same employer doing broadly the same work. The skills and qualifications of the comparator must be taken into account where they are relevant to the job.

If the permanent employee is treated differently from the fixed term employee, whether it be contractual or not, then the employer is contravening the regulations unless it can be objectively justified. Some differences, for example:

• Doing something specifically for permanent employees only
• Offering benefits or bonuses only to permanent employees, or at better rates
• Training only for permanent employees
• Selection policy for redundancy favours permanent staff
• Promotion policy favours permanent staff

Objective justification

Each case of less favourable treatment must be looked at individually and in seeking a solution due regard to the needs and rights of individual employees must be given. Less favourable treatment will be justified on objective grounds (taking into account the degree of the difference) if it can be shown that the less favourable treatment -

• is to achieve a legitimate objective, for example a genuine business objective
• is necessary to achieve that objective
• is an appropriate way to achieve that objective

If not justified the differences can be resolved in a number of ways :

• providing the difference on a pro rata basis
• making up the difference by providing an alternative benefit or treatment
• comparing, and making up each term to be identical
• providing a package of equal monetary value but with differing terms

A fixed term employee has the right to a written statement detailing the reasons for less favourable treatment than the permanent comparator. The employer must produce it within 21 days of the request and it may be used in an Employment Tribunal as evidence.

Periods of qualification

Periods of qualification for various rights, benefits or conditions of employment etc are not affected in any way, apart from the fact that there should be no differences. If the qualification period for a right is one years service then the fixed term worker has to reach one years service to qualify, the fact that the contract only lasts six months, for instance, is irrelevant, there is no pro rata adjustment.

Pension schemes

If the comparator is offered access to an occupational pension scheme the same access must be made to the fixed term worker, unless objectively justified. Should the pension not be taken up then there is no need to offer an alternative benefit. Should access not be given to a pension scheme, other than objectively justified, then an adjustment may be made to the fixed term employees salary package to compensate for the difference. If the vesting period for a pension is shorter than the contract length then the fixed term employee can't be offered the scheme and no compensation need be made.

Redundancy

Any new, renewed or extended contract is not allowed to contain a waiver of redundancy rights. The qualifying period of two years continuous service has to be achieved before statutory redundancy pay may be paid, this is continuous service and not contract term length. In all cases of a contract ending and not being renewed a dismissal will have taken place (a dismissal is a requirement for a redundancy), however, not all dismissals will automatically be redundancies. If a redundancy has taken place a fixed term worker is due the same level of redundancy pay as their full time comparator.