General Information regarding Fixed Term Contracts/Specified Purpose Contracts

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1 General Information regarding Fixed Term Contracts/Specified Purpose Contracts CPSMA Guidance Note CPSMA received several calls regarding the issue of fixed term/temporary teachers during the last school year. Following lengthy research, discussions and legal advice the following is the guidance for Boards of Management. This guidance note 1 is of a generalised nature. As each case is different, a Board of Management (BoM) should seek advice when this is necessary. General information regarding Fixed Term Contracts/Specified Purpose Contracts The phrase Fixed Term Employee is used to describe those employed on a temporary basis for a fixed duration, for a specified purpose or to complete a specific task. Fixed term contracts should be used for teachers who are employed on a temporary basis and for teachers who are providing substitute cover The Unfair Dismissals Legislation is designed to give protection to employees against unfair dismissal. Any dismissal is presumed to be unfair. If a claim of unfair dismissal is made, the employer (i.e. the BoM) must satisfy the Court that the dismissal in question was fair. The Unfair Dismissals legislation, subject to a few exceptions, will only apply to employees who have at least 52 weeks continuous service A person entering into a fixed term contract can agree with the employer that the unfair dismissals legislation will not apply, where the only reason for the dismissal is the expiry of the duration of the fixed term or because the purpose for the fixed term no longer exists 2. Such a clause in the fixed term contract is known as a waiver clause. As this waiver clause dilutes the employee s protection, there are very specific requirements regarding what must be included in a fixed term contract in order that the contract is valid and to allow the waiver to apply The Unfair Dismissals and the Fixed Term legislation is in place to ensure that the granting of fixed term contracts, and in particular the renewal of them, is not abused (e.g. that the BoM does not continue to issue fixed term contracts to avoid giving a permanent post). If a second or successive fixed term contract is entered into with the sole or part purpose of preventing an employee relying on the Unfair Dismissals legislation (e.g. to prevent an employee acquiring 52 weeks continuous service) a Court may rule that the Unfair Dismissals legislation does apply even though the contract provided that it would not.

2 Contracts of indefinite duration A contract of indefinite duration (CID) is similar to a permanent contract. When should a fixed term contract be used? A fixed term contract is recommended if a teacher is employed on a temporary basis to provide cover for a teacher engaged in a job sharing arrangement on career break on secondment on service over seas The duration of the fixed term contract cannot be for longer than the period of leave granted to the teacher who is being replaced. When should a specified purpose contract be used? 3.00 A specified purpose contract is used where a teacher is employed to provide cover (including substitute cover) for a teacher who is on: carer s leave maternity leave adoptive leave sick leave parental leave exam leave unpaid leave of absence jury service health and safety leave personal leave leave having been elected as a TD/Senator leave while he/she is a candidate in a general election The reason why a specified purpose as distinct from a fixed term contract is used in the above circumstances is that the end date of the contract is not known or is uncertain. Necessity for a written contact Each temporary/fixed term teacher (including a part-time, fixed term teacher) who is employed by the BoM for a period of one month or more continuous service must have a written contract when first appointed. (template fixed term and specified purpose contracts are available on The contract must be signed by both the BoM and the employee.

3 The following matters should be stated in the contract and should be specifically brought to the attention of the temporary/fixed term teacher:- that the provisions of the Unfair Dismissals Act 1977 as amended do not apply where the only reason for the dismissal is the fact that the duration of the contract has expired that the contract may be terminated in accordance with the Minimum Notice and Terms of Employment Act as amended, e.g. where an employee has been employed for less than 2 years the contract can be terminated on one week s notice. If terminating a fixed term contract on notice for a reason other than the expiry of the fixed term or the ending of the specified purpose, the employee can challenge the dismissal 3. the objective grounds for giving a fixed term contract rather than a contract of indefinite duration should be stated e.g. the temporary/fixed term teacher is employed to replace an employee on authorised leave whose post cannot be filled on a permanent basis. See points 2 & 3 above. Note: While strictly speaking, the obligation to notify the employee in writing of the objective grounds justifying a fixed term contract and the reason a contract of indefinite duration cannot be offered, does not arise in the context of a first fixed term contract, it is strongly recommended that even in the case of a first fixed term contract, such information is provided. Date of termination of a fixed term contract 5.00 Fixed term contracts beginning on or before the first working day of November: If a fixed term contract begins on or before the first working day of November, that contract may run to the day before the subsequent school year begins i.e. the day in August/September before the re-opening date for the following school year as the teacher is entitled to payment for the summer holidays. Fixed term contracts beginning after the first working day in November. If a fixed term contract begins after the first working day in November, the fixed term contract should end on the last school day in June to avoid a situation arising where the BoM may be obliged to pay the teacher (out of its own funds) for July and August. Obviously a contract may end earlier than the last school day in June if the duration/reason for the fixed term contract expires earlier than that date and this was stated in the contract. Retaining Fixed Term employees Fixed term employees can be retained in either of two ways:

4 (i) by extending the duration of the contract by agreement in a letter of renewal (see 7.00 below) or (ii) by entering into a further or successive fixed term contract (see 7.01 below) The High Court has held that a fixed term employee does not have a right to a further/successive fixed term contract. However, some caution must be exercised. If a Court holds that a second or subsequent fixed term contract was entered into not on objective grounds (e.g. the BoM had a permanent rather than a temporary position) but for the sole or part purpose of avoiding liability under the Unfair Dismissals Act, then the waiver clause may not apply and the employee may challenge his/her dismissal under the Act. For this reason, it is recommended that where the BoM wishes to retain a fixed term employee to do the same or similar work, the contract should, where possible, be renewed as per section 7.00 below by extending the duration of the first contract by agreement. Extending the duration of the contract by agreement Where the fixed term contract is being extended, the employee must be given a letter of renewal on or before the date of extension stating the objective grounds justifying the extension and the grounds for not offering a contract of indefinite duration. (A template letter of renewal is available on Therefore where a fixed term employee is retained by extending the duration of the contract the BoM s position should be that the employee remains in employment under the original fixed term contract but for an agreed extended time and all the terms of the contract remain intact including the waiver clause 4. Further/Successive Fixed Term contracts If renewing a contract by way of a second or subsequent fixed term contract the written contract must be in place at the latest by the date of renewal and must provide objective grounds justifying the further fixed term contract and the grounds for not offering a contract of indefinite duration Ending fixed term contracts 8.00 Year one: Where a fixed term teacher has been employed on a contract for one year or less the BoM can simply decide not to offer the teacher a further contract without further consideration, provided that the contract was validly drawn up with an appropriate clause stating that the Unfair Dismissals Acts shall

5 not apply as outlined above. If the termination of a fixed term contract was for a reason other than the expiry of the fixed term or the ending of the specified purpose, the employee can challenge the dismissal. Second or successive years Where a second or subsequent fixed term contract is entered into on objective grounds with a valid waiver clause referred to above, and not to prevent the employee relying on the Unfair Dismissals legislation [e.g. not to prevent the employee getting 52 weeks continuous service], then the contract should come to an end on the expiry date in the contract or because the specified purpose has come to an end. Where the BoM has a number of teachers who have been engaged on second or successive contracts, but has fewer fixed term positions in the following year it might decide to retain some of the teachers but not others. There is no definitive legal decision regarding the rights of fixed term teachers in this situation to remain in employment where vacancies for fixed term positions continue to exist in the school. The teachers who are not being retained should not be entitled to bring a case for unfair dismissal against the BoM under the Unfair Dismissals legislation if the requirements set out above in regard to contracts have been complied with. The same situation should apply where the BoM has the same number of fixed term positions available the following year but decides not to retain some of the fixed term teachers 5. Entitlement to Contract of Indefinite Duration: After being employed for a certain period of time (usually 4 years), an employee may be entitled to a contract of indefinite duration. Failure to comply with the requirements outlined above in regard to contracts could result in a contract of indefinite duration being granted to an employee. Interviews Interviewing existing fixed term teachers is not the appropriate mechanism for deciding/selecting which teacher/s are to be offered an extension of the duration of the original fixed term contract or a further fixed term contract/s. 1. This guidance note supersedes the previous agreement on pages 134 ff of CPSMA Handbook Dismissal is defined by the legislation as including the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

6 3. If terminating a fixed term contract on notice for a reason other than the expiry of the fixed term or the ending of the specified purpose, the employee can challenge the dismissal. 4. While this appears to be accepted in the UK under similar legislation, the Irish Courts have yet to determine the specific point 5. This is a very technical area of law and whilst the wording of the legislation does suggest that such a claim should not be upheld, it will be necessary to await relevant decisions from the Employment Appeals Tribunal or the Courts before more definitive advice can be given. CPSMA 2010