While ministers hint at changes to teachers' employment contracts Jane MacFarlane looks at recent legal developments
Two out of every five part-timers are currently on fixed-term contracts. But whether an employer intends them to or not, a series of short-term contracts can result in a teacher getting a permanent job.
A fixed-term contract is one which lasts for a specific period that is agreed in advance. A temporary contract is one for a specific, estimated period, but it does contain a clear notice period.
Until recently fixed-term and temporary contracts have been frequently used in schools to provide flexibility in the employment of teachers. However recent legislation and case law means that their usefulness in achieving this flexibility may be a thing of the past.
Statutory rights, other than rights relating to discrimination, which arise on or before the first day of employment, are acquired by all employees after two continuous years of employment.
The Employment Rights Act 1996 provides that employees can count the periods when they are absent from work, on account of a "temporary cessation" of employment, towards their total continuous period of employment. This cannot be avoided as the Act also says that any agreement to contract out of this provision is only valid in very limited circumstances and when the employee has agreed to this, in writing, before the end of the first fixed term.
The temporary cessation need not be an emergency or unexpected and may be predictable and occur on a regular basis. Several recent cases support this and most teachers (including supply teachers) who have been employed for more than two years can rely on continuity, notwithstanding that they have been employed on a series of short contracts and have not been employed over vacations.
An Employment Appeals Tribunal decision during 1997 reinforced this by stating that where there was a pool of casual workers, from which the employer drew workers as they were needed, any gaps between contracts counted towards continuity of employment where there was a custom to that effect.
Flexible hours contracts are usually used where there is a position within a school whichis likely to continue indefinitely but which, due either to varying demand, or to the varying finance available, will be for a variable number of hours per week.
These contracts have been widely used in further and higher education establishments and, to a limited extent, in schools.
However, unless the contract is very widely drawn, but at the same time is specific about what is envisaged, any unilateral variation in contract terms can be taken as a breach of contract and hence lead to a claim for constructive dismissal. The contract should always specify how much variability there is likely to be and also when changes will occur.