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Ending of fixed-term contracts
[ch 11: pages 335-336]From 6 April 2013, a change to the law has limited employers’ duty to consult collectively on the expiry and non-renewal of fixed-term contracts. As a result, dismissals resulting from the expiry and non-renewal of fixed-term contracts are now ignored when calculating whether 20 or more redundancy dismissals have been proposed in a 90-day period.
The ending and non-renewal of a fixed-term contract will only count as a dismissal for the purposes of the duty to consult collectively if the employer proposes to end the contract prematurely — i.e. before its expiry date — for a reason related to redundancy (i.e. a reason that does not relate to the individual concerned).
This change to the law was introduced to overturn an important victory by the higher education union UCU in Lancaster University v UCU [2010] UKEAT/0278/10/2710, in which the union won a substantial protective award for members due to the university’s failure to consult collectively over non-renewal of fixed-term contracts.
UCU launches ECJ challenge on behalf of fixed-term employees
There is evidence of systemic use of fixed-term contracting throughout higher and further education. In 2014, the UCU launched a challenge before the European Court of Justice. UCU argues that by limiting the collective consultation duty in the case of fixed-term employees, the UK government has broken European Community law, namely the obligation under the Fixed-Term Workers Directive (1999/70/EC) not to discriminate against workers on the grounds of their fixed-term contract status. The union says that limiting the duty to consult collectively in this way discriminates against fixed-term contract workers because:
• employers no longer have to consult with trade unions if they are intending to let fixed-term workers go, instead of renewing their contract;
• fixed-term workers are more likely than permanent workers to be targeted for redundancy as a result of the change; and
• the change leaves fixed-term workers less able to access negotiated redeployment, training and alternative employment procedures.
The union has written, in the meantime, to employers’ organisations and has asked them to work together to persuade colleges and universities to sign up to voluntary agreements to consult properly notwithstanding the change to the law.