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Full rights now for part-timers

The days of staff on short-term contracts who could easily be disposed of are over.

Maureen Cooper explains the changes

The numbers of part-time teachers - most of whom are on fixed-term contracts - have increased by a quarter since local management was introduced.

But since February 6 part-time employees, irrespective of the hours worked or whether the contract of employment is temporary, fixed-term or permanent, on completion of two years' continuous employment with the same employer, are entitled: * Not to be unfairly dismissed, including the right to claim unfair dismissal at an industrial tribunal; * To a written statement of reasonsfor dismissal; * To a redundancy payment if dismissed for redundancy; * To reasonable time off to look for other work during the period ofnotice for redundancy.

Under the old rules an employee who worked between eight and 16 hours per week had to work continuously for the same employer for five years before such employment rights could be established. Employees who worked less than eight hours per week could never establish employment rights.

Employees who work fewer than eight hours a week now enjoy the same rights as all other employees when they have established two years' continuous service with the same employer.

Unfair dismissal

In law there are five reasons for dismissal regarded as fair: redundancy; capability or qualifications; conduct; statutory ban, and "some other substantial reason". When the employer takes unilateral action to end the employment, which would usually include not renewing a fixed-term contract, then a fair dismissal must fit one of the categories.

Redundancy

Schools have often dealt with the need to reduce staff by reducing the hours of its part-time employees. If the hours of a part-time employee with statutory entitlement gained after two years' continuous service with the same employer are, therefore, significantly reduced this may be regarded as a dismissal and could lead to a claim in an industrial tribunal.

Many part-timers have, in the past, been employed on permanent contracts with a clause allowing the employer to vary the number of hours worked according to the needs of the school. However, if that variation is regarded by the employee as amounting to a dismissal because the hours are so significantly reduced, then the employee will be entitled, if she or he has two years continuous service with the same employer, to a reason for the dismissal. For the dismissal to be fair it must fit one of the reasons described above.

If dismissal is because the school is reducing staff, ie redundancy, then any staff member with two or more years' service with the same employer will have the right to test whether the selection for redundancy is fair in a tribunal.

Selecting the individual on the grounds that the person was part-time, or failing to follow a proper procedure for dismissal, could lead to a successful tribunal claim. Professional advice should be sought on specific cases.

Capability

Where a teacher is employed midway in the school year on a fixed-term contract, the (often unstated) reason for the appointment being a fixed-term one is that the head believes that there may be better applicants if the post is ad-vertised for the following September.

The post is then advertised and the head appoints a person thought to be better qualified or in some way more capable of doing the job, and, therefore, the fixed-term contract of the person appointed earlier in the year is not renewed.

If the person whose contract is not renewed has more than two years' continuous service with the same employer, (including continuous service with other schools in the same authority), he or she is entitled to a written reason for dismissal and to claim unfair dismissal for non-renewal of the contract. Clearly in this situation the reason for non-renewal is not redundancy because the post still exists.

Of the other four categories of fair reasons for dismissal, the only one likely to apply is capability or qualification. If the individual was never advised that his or her capabilities or qualifications were unsuited to the post then it may be difficult to maintain that the dismissal was fair. The longer a person is employed on a fixed-term contract to do a job without anyone making it clear that there is such a problem about capability or qualifications, the more difficult it will be to argue that a dismissal for this reason was fair.

Conduct

Again, all part-time employees with two years' service should be dealt with in the same way as full-time employees in the same category; that is under the school's disciplinary procedure.

This means, broadly, that, unless the issue is gross misconduct, employees need to be warned about their conduct and given a period to improve.

If it becomes necessary for the employer to dismiss the employee on grounds of conduct, then this must be done by a properly set up panel of governors, even if the employee only works for a few hours a week. The employee should also be given right of appeal to a separate panel of governors.

A statutory ban

This is rarely used as a reason for dismissal but it might apply in circumstances where it is necessary to dismiss an unqualified teacher because a qualified teacher has become available to do the work. The 1989 Teachers' Regulations require that schools only employ an unqualified teacher where a qualified teacher or intending licensed or overseas trained teacher is not available. For this reason an unqualified teacher or an instructor should not normally be employed on a permanent contract.

Some other substantial reason

Again, this is a rarely-used reason for dismissal in schools and would be very unlikely to apply to part-timers or those on fixed-term contracts but it might include frustration of the contract. For example the employee is unable to do the job because he or she has to serve a term of imprisonment.

Statement of reasons for dismissal

By law the employer is required to give, on request, to any employee with two years' continuous service with the same employer, irrespective of how many hours worked, a written reason for dismissal.

As indicated above there are only five fair reasons for dismissal and therefore the written reason must be in accordance with one of these.

Entitlement to redundancy payment

An employee has the right to a redundancy payment, based on salary and age, whenever two years' continuous service with the same employer is established irrespective of the number of hours worked or whether the contract of employment is fixed-term, temporary or permanent. The payment is reduced if dismissal for redundancy occurs after the dismissed employee's 64th birthday.

There are, however, additional entitlements for staff who work in schools because they are covered by the Local Government Modification Order.

In simple terms this means that an employee with two years' continuous service, whether with one or more LEAs, aided or grant-maintained schools or city technology colleges, will be entitled to a redundancy payment based on a maximum period of up to 20 years' continuous service with any combination of those employers. This entitlement is also irrespective of the number of hours worked each week or the nature of the contract of employment.

The fact that an employee is not contracted to work during the school holidays does not necessarily break the continuity of employment since the employer has no requirement for the employee to undertake the work during those periods.

This has particular implications for a GM school or CTC since it may be liable for large redundancy payments in circumstances where an employee has a long period of continuous service with the previous LEA or LEAs, aided or GM schools, or CTCs whilst having only a short period of employment with the current employer.

Entitlement to reasonable time off to seek other work

There is no precise definition of what might be regarded as reasonable time off to look for other work, but if it could be shown that an employer unreasonable refused time off then the employee could be awarded two-fifths of a weeks pay.

CHECKLIST Good practice in dealing with part-time employees and employees on fixed-term contracts: * Make sure that part-timers are treated no differently to comparable full- timers.

* Remember that it is almost certainly unfair to select staff for redundancy on the basis that they are part-time.

* If there is a need to dismiss a part-time member of staff for conduct or capability, the same rules and procedures that are in force for the same category of full-time employees should be used.

* Remember that regular part-time staff are now entitled to join the relevant pension scheme which means that the employers need to bear in mind the possibility of employer's contributions for those employees who decide to join.

* With a fixed-term contract, the date on which the employment comes to an end is known from the beginning of the period of employment. If the employer does not renew a fixed-term contract then, in legal terms, this action will normally be regarded as a dismissal and there will be an entitlement to a reason for dismissal where a two-year period of continuous service has been established.

* Where the employer dismisses an employee there must be a fair reason for dismissal.

* Maureen Cooper is a director of Education Personnel Management

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