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Ending of fixed-term contracts
[ch 11: pages 408-409]On 6 April 2013, the law was changed, limiting employers’ duty to consult collectively on the expiry and non-renewal of fixed-term contracts. As a result, dismissals that result 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 only counts as a dismissal for the purposes of the duty to consult collectively if the employer proposes to end the contractprematurely — in other words, before its expiry date — for a reason related to redundancy (that is, a reason unrelated to the individual), for example, a cut in funding or the premature ending of a project.
This change to the law was made 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 the non-renewal of fixed-term contracts.
UCU challenges limits to fixed-term contract consultation duties
In 2014, UCU launched a challenge to this change to the law before the European Commission. There is evidence of systemic use of fixed-term contracting throughout higher and further education, and UCU argues that by limiting the collective consultation duty for these employees, the UK government has broken EU 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 asked employers' organisations to work with it to persuade colleges and universities to sign up to voluntary agreements to consult properly notwithstanding the change to the law.