Fixed term employees are employed on the same type of contract-either a fixed term contract or a specified purpose contract.
A fixed term contract is one where the end date of the contract is known at the outset whereas a specified purpose contract is one which terminates on the occurrence of a specific event or cessation of a specific purpose.
The Protection of Employees (Fixed-Term work) act, 2003 offers significant protection to fixed term workers and the purpose of this legislation is
- to ensure that fixed term workers are no less favourable treatment than their comparable permanent counterparts and
- to prevent employers from abusing employees by employing them on a series of successive short fixed term contract.
A fixed term employee is defined in the Protection of Employees (Fixed-Term work) act, 2003 as:
| “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include— | ||
| (a) employees in initial vocational training relationships or apprenticeship schemes, or | ||
| (b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme; |
However fixed term workers are excluded from the protection of the Unfair Dismissals Acts by virtue of the fact that the contract has come to an end (either by expiry of the term or the arrival of the specific purpose event) but only provided three conditions are met:
- The contract was in writing
- The contract states that the Unfair Dismissals act will not apply to a dismissal which occurs only as a result of the end of the contract arriving
- The contract was signed by both employee and employer.
It is worth noting that the Employment Appeals Tribunal (EAT) are quite strict on these conditions being met in order to avoid an unfair dismissal award being made against the employer.
The above exclusion does not apply to dismissal during the term of the fixed term contract, provided of course the employee has the necessary period of continuous service (1 year).
There is an anti-abuse provision in the Act also which prevents the employer from giving the employee a series of fixed term contracts.
As an employee can also successfully claim for unfair dismissal if he/she has been employed on more than one fixed term contract and the gap between contracts is less than three months and the last contract was granted in an attempt to avoid liability under the Unfair Dismissals legislation.
Renewal of fixed term contracts
It has been held by the Labour Court that the non renewal of a fixed term contract will not, of itself, give rise to a claim of less favourable treatment under the act.
The Act also provides that where an employer proposes to renew a fixed term contract the employee shall be informed in writing, not later than the date of the renewal, of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration.
Successive fixed term contracts
Generally there is a limit of four years on the length of successive fixed term contracts with the same employer or associated employer. However there is no limit on the duration of the 1st fixed term contract. This limitation of four years refers to “continuous employment” in fixed term contracts and this definition has been well tested as to what is considered continuous and otherwise.
Less favourable treatment
Where an employee on a fixed term contract is treated less favourably than his permanent counterpart with respect to one term of his contract this can be objectively justified if
- It arises from a real need on behalf of the employer
- Is appropriate to achieve the objective
- Is necessary to achieve the objective.
Other obligations of employers re fixed term employees
Some other obligations of employers include
- The employee must be notified in writing as soon as possible of the objective condition ending the contract. This may be arriving at a specific date or the occurrence of a specific event.
- The employer must inform the employee of vacancies and training opportunities to avail of a permanent job should one arise.
Fixed term employees may make a complaint to a Rights Commissioner in the first instance should a breach of their rights occur; the next step would be the Labour Court and then to the High Court (but only on a point of law).
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