Questions we have been asked this month

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19 June, 2018

Q: Do we have to open up applications for a full time position to staff on fixed term contracts?

A: Yes, a fixed-term employee has the right not to be treated less favourable than a comparable permanent employee with regards the terms of their contract or any other detriment. Regulation 3(2)(c) of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) specifically provides that this right applies in relation to the opportunity to secure any permanent position in the establishment.

Q: On Academy Conversion, is continuity of employment preserved?

A: Yes. Where an existing school converts into an academy or merges into a multi-academy trust, there will usually be 'a relevant transfer' under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). TUPE operates so as to ensure staff working in the school will automatically transfer on their existing terms and conditions and in doing so, continuity of service will be preserved.

Q: Where there has been a change in contractual hours, and a glitch in the system has resulted in an underpayment of wages over the course of a number of months, what is the best way of dealing with this?

A: If ACAS are not yet involved, the best way of dealing with this situation would be by way of a settlement agreement (whereby there is no termination but the complaint and any potential claims are still compromised in the usual way). The risk of dealing with the situation without a settlement agreement would be that a claim is issued for unlawful deduction of wages and/or any other claim arising from the error (including an equal pay claim). If ACAS are involved then this should be settled by way of a COT3 agreement.

For more information contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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