Two recent judgments have important consequences for temporary employees in schools, who are, in the main, part-time women teachers and support staff. In the first case, the House of Lords ruled that the current qualifying periods, which had to be satisfied before a claim for unfair dismissal compensation or redundancy could be heard, are in breach of European discrimination laws (R v Secretary of State for Employment ex parte Equal opportunities Commission and Another 1994).
The point at issue was the qualifying period of continuous service necessary in England and Wales before a part-timer has statutory right to employment protection. At present employees who work for 16 hours or more per week qualify for these statutory rights after two years' continuous employment.
Employees who work between eight and 16 hours a week gain statutory rights after five years service. Up to now employees with fewer than eight hours work per week do not qualify. The House of Lords took the view that this differential affected more women than men, and was therefore discriminatory.
An industrial tribunal, which followed this case in the House of Lords, then held that part-time workers with two years' continuous service could claim unfair dismissal, irrespective of the number of hours per week they worked.
In this case, an employee had worked for seven hours per week for most of her five years employment, and was granted the right to make a claim. It is important to note that it was heard in a tribunal and was decided on the grounds of discrimination. It is not certain that it would have wider applications.
Legislation is now expected which will clarify the position. For the moment employers have to tread warily through the maze.
Schools have a greater problem than many other employers in calculating which weeks count towards the period of service. Part-time work in schools fluctuates dramatically, so that it is not uncommon for a teacher to have four different working periods in four different weeks.
The Employment Act 1982 provides that continuous employment is calculated in months and years, not in weeks. If an employee's dismissal falls one day short of two years' continuous employment then, in theory, he or she does not qualify for unfair dismissal or redundancy rights.
Schedule 13 of the Employment Protection (Consolidation) Act 1978 contains the rules for assessing continuity. There is, first of all, a presumption that the employment has been continuous and it is up to the employer to prove that continuity has been broken.
The test (schedule 13, paragraph 6) is whether the contract normally involves employment for eight (or 16) hours or more per week. An industrial tribunal will look at the whole period of employment and will aim to ensure that an employee does not lose out simply because, for a few weeks, he or she has worked for under eight hours. In many cases there will be a contractual statement of hours to be worked, but some contractual hours will be variable.
In such cases a tribunal would take notice of the hours actually worked rather than the words in the contract. The general rule is continuity exists if work exceeds eight hours in the majority of weeks.
Continuity is also protected when an employee ceases to work for only a short time. If, for example, a temporary teacher ends a contract at the end of a term and then commences another one at the beginning of the next, then no break in continuity occurs, even if a short interval elapses between the contracts.
It is clear that if the qualifying period changed from hours per week to years, as it might, then the calculation would be easier but the financial implications for school budgets would be great.
A distinction has to be made between these general temporary contracts and fixed-term contracts which come to an end on a defined date, usually when a teacher returns to school after illness or maternity leave, or the termination of a particular course for which he or she has been engaged. However, because employment law treats the expiration of a fixed-term contract as dismissal in order to allow an employee to use a tribunal to claim unfair dismissal, it is common practice for fixed-term teachers' contracts to exclude this right to complain.
Although it is generally understood that such waiver clauses are necessary in certain instances, teacher unions have been concerned about the blanket approach used by employers anxious about their budgets. Unions have used discrimination law to counter this trend with considerable success.
The law is now in a state of flux. For the time being it is a reasonable rule of thumb to consider that a succession of temporary contracts will create statutory rights for temporary staff. LEA schools should follow the authority's practice. Other schools should seek legal advice on waiver clauses in their contracts.
Chris Lowe is honorary legal consultant to the Secondary Heads Association.