This guide is intended to provide a brief introduction to equal treatment rights for fixed-term workers. These rights are contained in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations which were introduced in 2002 thanks to trade union campaigning in Europe.
This guide contains information about other basic rights which part-time workers are entitled to in the workplace.
This information is for guidance only and should not be regarded as an authoritative statement of the law. It is always a good idea to seek advice from your union (or from an advice agency if not a union member) on your specific situation before taking any action.
The right to equal treatment
If you are an employee on a fixed-term contract you have not to be treated less favourably than permanent employees on most terms and conditions of employment, including:-
- all forms of pay, including expenses, sales commissions, bonuses and performance related pay other pay related benefits, including profit related pay schemes
- holiday rights
- bank holidays and public holidays
- pension rights
- sick pay and leave
- parental rights, including maternity, paternity, and adoption leave and pay
- redundancy pay
- workplace benefits, for example staff canteens, staff parties, car allowances, health care benefits, subsidised membership of gyms, staff discounts
- union representation and
- access to training.
If any contractual terms rely on length of service, fixed term employees will be required to meet the qualifying period in the same way as permanent staff.
Who has the right to equal treatment?
In order to qualify for rights to equal treatment, you must be an employee.
The rights do not apply to:
- agency workers
- members of the armed forces
- employees on a Government scheme providing an individual with training or work experience in order to help them find or obtain work
For more information on whether you are an 'employee' or a 'worker' go to the section on employment status.
What is a fixed term contract?
Your contract of employment must be 'fixed-term'. This means that your contract must end on a given date, or after a specific event or on completion of a task.
Examples of fixed term employees include:
- someone employed to cover an employee's maternity leave, or
- an employee with specialist skills who is taken on for the duration of a project, or
- individuals employed for seasonal work in agriculture or for periods of peak demand in retail
Making a comparison:
To be able to claim rights to equal treatment, you will have to show that you have been treated less favourably than a permanent employee, who:
- works for the same employer, and
- works in the same workplace, (or if there are no permanent employees in that workplace a permanent employee in another workplace owned by your employer) and
- doing the same or similar work
You cannot compare your terms and conditions with a former permanent employee.
Example 1: if you have started work a fixed term contract as a shop assistant over the Christmas period and you discover that a permanent employee in the shop next door is being paid more per than you, this will not help as they are not employed by the same employer as you.
Example2: nor would it help to find out that a supervisor on a permanent contract has better holiday rights than because they are not doing the same or similar work as you and so are not a suitable comparator.
Example 3: if your employer has decided to close down your factory making everyone redundant and all permanent staff are laid off a month before you on better redundancy pay than you are being offered, this will not help because you cannot use a former employee as a comparator.
Example 4: if you are working on a fixed term contract for a charity and you discover that a permanent employee doing similar work but in a different office is paid their normal salary when off sick whilst you are only paid statutory sick pay, they may be a suitable comparator if no one else does the same job in your office.
Employer defences for unequal treatment
Employers will be able to defend a claim for discrimination if they can show that the less favourable treatment is 'objectively justified', that is:
- The treatment is to achieve a legitimate objective, such as a genuine business objective
- The treatment is necessary to achieve that objective and
- is a proportionate way to achieve that objective
Your employer is unlikely to be able to rely on cost alone to justify not providing you with the same pay and conditions or workplace benefits as permanent staff.
You employer may be able to provide some benefits on a pro rata basis reflecting your period of work.
Your employer may be able to justify less favourable treatment on one particular condition, if they can show that a fixed-term employee's package of terms and conditions is no less favourable overall than that for a comparable permanent employee
Pregnancy and Maternity
As a fixed term employee, you have the same rights as permanent staff to protection from discrimination if you are pregnant or taking maternity leave.
Your employer will be acting unlawfully if they refuse to employ you, refuse to renew your fixed term contract, or if they dismiss you because of pregnancy or maternity leave absence. However, an employer can decide not to renew your fixed term contract during an employee's maternity leave if there is genuinely no other work for you.
Access to permanent employment and job security
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations create important job security rights for fixed term employees.
Where you are employed on a succession of fixed-term contracts and your contract is renewed after 4 years in employment you will become a permanent employee, unless your employer can objectively justify not making you permanent. Employers will, however, need a very good reason for not to making you permanent after 4 successive years. The fact that your employment is externally funded will not be a sufficient reason.
Employers can agree with unions (or elected workplace representatives if a union is not recognised in your workplace) a different period of time after which fixed term employees will become permanent in your workplace. Collective agreements (or workplace agreements) can also limit the use of successive contracts and set a list of reasons to justify renewals of fixed-term contracts.
As a fixed term employee you also have the right to receive information on permanent vacancies within the organisation.
Rights on termination of contract
Your fixed-term contract will terminate either on the date specified in the contract or on completion of a specific task (or set of tasks) or a project. An employer does not have to give you separate notice to end your contract.
However, if your employer decides to end your fixed term contract early they must give you notice and the notice given must not be shorter than would be given to a permanent employee. Unless your contract provides for longer notice, the statutory minimum notice period (see below) will apply.
If you wish to terminate your contract early you must give your employer a week's notice, the contract requires you to give longer notice.
Where a fixed term contract comes to an end and the employer decides not to renew it this is considered to be a dismissal.
Where you have worked continuous for your employer for more than 12 months you will be protected by unfair dismissal law. This means your employer must ensure that they have a potentially fair reason for not renewing your contract. In most cases employers are likely to argue that the reason for the dismissal was redundancy, due to the decline in demand for that type of work or due to lack of funding for on-going employment. Your employer must also provide the employee with a written statement of the reasons for dismissal.
If your employer is proposing to make more than 20 employees redundant in your workplace within a 90 day period they must also consult with a recognised trade union (or workplace representative if no union is recognised) for:
- at least 30 days where less than 100 employees, including fixed term staff, face redundancy
- at least 90 days where 100 or more employees, including fixed term staff, face redundancy
Where your employer is proposing to make a group of employees redundant, your employer must not discriminate against fixed term staff. It is unlawful for employers to select an individual for redundancy on the grounds that they are employed on a fixed term contract.
Your employer must also follow a fair dismissal procedure before deciding to dismiss you. Where you are being dismissed for redundancy, this will involve individual consultation meetings, at which your employer should:
- allow you to be accompanied by a trade union representative or colleague
- discuss the reason for not renewing the contract with you
- explain why you have been selected for redundancy. This will be particularly important if other fixed term employees in your workplace are having their contracts renewed.
- consider whether it is possible to redeploy you to suitable alternative employment
- write to you after the consultation meeting informing you of their decision
- inform you of your right to appeal if they decide to make you redundant
- hold an appeal meeting at which you will have the right to be accompanied.
If your employer does not start either the individual consultation or consultation with unions (or workplace reps) early enough they should extend your contract of employment until consultation has been completed.
Fixed term employees who are made redundant will be entitled to statutory redundancy pay if they have worked for their employer continuously for two years or longer However where employers operate a policy which provides for redundancy payments in excess of the statutory minimum then the policy must not exclude fixed term employees. They must receive the same payments as any equivalent permanent employee who is being made redundant.
What can I do if I am not getting my equal treatment rights?
If you are not receiving your equal treatment rights you can make a complaint to an Employment Tribunal.
It is always a good idea to seek advice from your union rep or from the ACAS Helpline before taking steps to enforce your rights.
For more information please go to the section on enforcing your rights.
Basic rights at work for fixed term worker
As a fixed term workers you will have a range of other statutory rights in the workplace.
Which rights you qualify for will depend on your employment status, that is whether you are an 'employee', or a 'worker'. For more information go to the employment status section.
All temporary 'workers' have some basic rights at work. These include the right:
- To work in a safe and healthy working environment
- Not to be discriminated on grounds of sex, race, disability, sexual orientation, maternity, age, religion or belief
- To be paid at least the national minimum wage
- Not to have unfair deductions made from your pay
- To paid holidays, calculated on a pro rata basis
- To be accompanied by a trade union representative or colleague at formal grievance and disciplinary hearings
- Not to be discriminated against because of your trade union membership or activities
- Not to be victimised for seeking to enforce your statutory rights
Some important employment rights are only available to those who are classed as 'employees'. These include:
- the right to take maternity, paternity and parental leave;
- the right to paid time off for ante-natal care; and
- the right to a written statement of main terms and conditions of employment, including pay, hours, job description, notice period, and details of grievance procedures.
For more information on employment status follow this link: employment status
Issued: 26 July, 2011