Questions we have been asked this month

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16 February, 2018

Q. Can a fixed term contract (FTC) be brought to an end before its expiry? Does a fixed term worker have the same rights?

A. It is commonly mistaken that a Fixed Term Worker does not share the same rights as a permanent employee. Under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 it is unlawful to treat a fixed term worker any less favourably than a permanent worker, without a good business reason for doing so. This is reinforced by Para 9 of the Green Book, which would be implied into the contracts of Support Staff within Local Authority maintained schools and those who have adopted the terms of the Green Book. STPCD also sets out the terms relating to pay of teachers and head teachers who are employed on a FTC.

Whether an FTC can be terminated early is largely dependent on the terms of the contract itself. If the FTC does not contain a termination clause by both parties, there is a potential risk of a breach of contract claim. Non-renewal of a FTC is treated as a dismissal and as with any other dismissal there must be a fair reason for doing so, such as redundancy or some other substantial reason.

Following 2 years of continuous service, despite being on an FTC the worker would gain the additional employment rights relating to unfair dismissal and redundancy pay. Following 4 years of continuous service on an FTC the worker would automatically become a permanent employee.

Q. Where an employee and their partner both wish to take Shared Parental Leave, are they required to give notice at the same time and who pays each party during the period of their leave?

A. Shared Parental Leave is still a relatively new concept that requires clarification in some areas. As long as both the employee and their partner meet the eligibility requirements, the mother will need to have given a curtailment notice to bring her maternity leave to an end and start shared parental leave with her partner, setting out how the remaining weeks are to be shared between them.

The mother will usually provide her notices and proposed shared parental leave dates to her employer, whilst her partner will provide a declaration that the mother has curtailed her maternity and a declaration for their entitlement to shared parental leave. An employer may request the contact details for the other party's employer and a copy of the birth certificate within 14 days if they wish to do so.

It will be the responsibility of each employer to pay their employee the Shared Parental Pay, subject to eligibility and they are entitled to rely upon the declarations provided.

If you require any more information, please view our Education section on the Forbes website or contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively, please send any question through to Forbes Solicitors via our online Contact Form.

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