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).
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
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
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.
