HSEA – Revised April 2004
Protection of Employees (Fixed-Term Work) Act 2003
Implementation Guidelines
This document does not purport to be a definitive interpretation of the legislation, nor is it intended
to be fully comprehensive. This guideline is intended to facilitate the implementation of the
legislation by local management.
63/64 ADELAIDE ROAD, DUBLIN 2
TEL: (01) 662 6966 FAX: (01) 662 6977
HSEA – Revised April 2004
Contents
1.
Introduction
Purpose
Comparable permanent employees
3
3
2.
i.
ii.
Implementation Arrangements
Temporary Staff who qualify for Permanent Status
Temporary Staff who do not yet qualify for Permanent Status
New Recruits
5
5
6
6
3.
Conditions of Employment
8
4.
Contracts of Employment
Initial Contract
Renewing a Temporary Contract
Automatic Permanency
Termination of Temporary Contracts
10
10
10
11
11
5.
Exemptions
13
Appendices
A
Short Term Temporary Contract
Sample Contract
14
15
A1
Renewal of a Short Term Temporary Contract
17
B
Specified Purpose Contact
Sample Contract
18
20
B1
Renewal of Specified Purpose Contract
22
C
Permanent Contract
23
D
Terms of Employment (Information) Act, 1994
24
2
1.
INTRODUCTION
The Protection of Employees (Fixed-Term Work) Act 2003 which came into force on
the 14th July 2003, has major implications for the employment of temporary staff in
the health service. Implementation of the legislation will require health service
employers to examine the manner in which they issue and administer temporary
contracts and how they treat temporary employees. This guideline is intended to
facilitate the implementation of the legislation by local management.
Purpose
The purpose of the Act is :
(i)
to ensure that fixed term / temporary workers are not treated less
favourably than comparable permanent workers (employees on
contracts of indefinite duration). In effect the employer must treat
comparable temporary and permanent employees equally; i.e. they must be
provided with the same terms and conditions of employment (other than
tenure).
(ii)
to regulate the use of fixed-term / temporary employment contracts.
The employer is now required to provide information relating to the
purpose and duration of the employment when issuing contracts of
employment to temporary staff. The contracts of temporary employees are
deemed to be permanent contracts when they have been in employment for
certain lengths of service.
Comparable permanent employees
Temporary employees are entitled to be treated in the same manner as comparable
permanent employees. Comparable permanent employees are persons who perform
the same work as the temporary employees under the same or similar conditions. Any
differences between the work performed must be irregular or insignificant.
Temporary / fixed term employees are also entitled to be treated on an identical basis
to the permanent employees if the work performed is different but of equal or greater
value to that of the permanent employees.
3
Note: Temporary employees may work part-time or wholetime hours of attendance.
If temporary employees work part-time, their comparable employees are equivalent
permanent part-time staff. If the temporary employees are wholetime, then the
equivalent permanent wholetime employees are the comparators.
4
2.
IMPLEMENTATION ARRANGEMENTS
Temporary Staff in Employment
The service of all existing temporary staff should be reviewed and the length of
continuous service within the employment established. As a result of this exercise
temporary staff will in the main fall into two categories :
(i)
temporary staff who have sufficient service to qualify for
permanent status
(ii)
(i)
temporary staff who do not qualify for permanent status
Temporary Staff who qualify for permanent status
Temporary employees in their fourth or subsequent year of continuous employment
will in most cases now be entitled to permanent status. For more details in relation to
automatic permanency please see page 10.
Continuous Service
Service is continuous unless an employee is dismissed or
leaves voluntarily.
While the employees’ contract status will automatically change from temporary to
permanent by reason of the legislation, it is suggested that a local procedure is drawn
up to ensure that the employee and local manager fully understand its implications:
-
Formally communicate with these employees to inform them of their
permanent status
-
Request these employees to provide whatever information is traditionally
required of permanent staff on appointment e.g. evidence of qualification,
curriculum vitae, garda clearance, medical status, details of next of kin,
and any other relevant documentation
-
Ensure that they have a written permanent contract of employment which
sets out all of the details required by the Terms of Employment
(Information) Act 1994 (see appendix D)

Where employees are on single specified fixed term contracts this provision will not necessarily apply
5
-
Assignment will be to their existing location
-
Arrange for these employees to be provided with feedback on their
performance to date
-
Assess their induction needs and any outstanding training requirements
e.g. manual handling
(ii)
Temporary Staff who do not qualify for permanent status
Temporary employees who do not satisfy the service requirement for automatic
permanency should as soon as possible be afforded the opportunity to undergo
induction, general feedback and ensure that they are afforded whatever training they
would have been provided with if they had been permanent e.g. manual handling. All
the human resource policies must be applied to them on the same basis as their
permanent counterparts. Their terms and conditions of employment should be
reviewed to ensure that all conditions apply equally to permanent and temporary staff.
Please refer to page 7, conditions of employment for more details.
New recruits
Every effort should be made to ensure that all new temporary employees satisfy the
same recruitment criteria as their permanent counterparts. This includes competence
assessment, qualification verification, references, medical assessment, garda
clearance, etc.
From their first day of employment temporary employees are entitled to the same
terms and conditions of employment as their permanent counterparts. Temporary
employees should undergo the same induction, probation process and assessment
process as permanent employees to establish their suitability as quickly as possible.
These individuals should be provided with clear indications of the duties attaching to
the post and expected standards of conduct and performance. Temporary employees
who do not meet the required work/conduct standards should be counselled and given
appropriate guidance and assistance. If there is no improvement in
performance/conduct despite counselling and training, the normal disciplinary
procedure should be invoked. Under no circumstances should temporary staff be
re-employed unless their service has been certified as satisfactory.
6
3.
CONDITIONS OF EMPLOYMENT
All temporary employees are entitled to the same terms and conditions of employment
as their permanent counterparts from the first day of their employment.
Where their permanent counterparts would have undergone induction programmes it
is important that temporary staff would be provided with an opportunity to undergo a
similar programme. However it is important to point out that a requirement to
undergo a probationary period can not be imposed upon employees who have been
deemed permanent automatically. The purpose of a probationary period is to
establish an employee’s suitability for the position, this should be done in the time of
entry and not in the fourth year of employment.
Temporary employees are entitled to the same annual leave as permanent employees
on a pro-rata basis; e.g. employees on a six month temporary contract are entitled to
half the annual leave entitlement of comparable permanent employees. Service
related annual leave entitlements may continue to be granted but there should be no
distinction between permanent and temporary service for the purposes of accruing this
entitlement; e.g. where an extra annual leave day is granted to permanent employees
on completion of 2 year’s service, this entitlement must now also extend to temporary
employees.
Temporary employees are entitled to the same sick pay as permanent employees on a
pro-rata basis; e.g. where a permanent officer is entitled to six months full pay and six
months half pay in a four year period, a temporary officer employed on a one year
contract would be entitled to one quarter of this entitlement. The local rules of sick
pay schemes must apply equally to both temporary and permanent staff e.g. rules
relating to uncertified days should be granted on a pro-rata basis.
All temporary employees on maternity leave will now be entitled to receive maternity
pay. However should the temporary contract expire before the end of the maternity
leave, maternity pay will not be paid beyond the expiry date of the contract.
7
Access to premium earnings e.g. overtime, on-call, acting up, shift work, etc., must be
offered equally to all staff. Any entitlement or benefit afforded to permanent staff e.g.
uniforms, should also be offered to temporary employees.
Temporary employees are entitled to the same treatment as permanent employees in
the workplace. This includes access to training, performance review, personal
development planning or any other treatment which helps the employees to perform
the job to the best of their ability.
All temporary service must now be reckoned the same as permanent service for the
purpose of access to permanent competitions. This means that there can be no
distinction between permanent or temporary service for access to promotional posts.
Please note:

The employer may be able to objectively justify different treatment of
temporary staff however the grounds for the different treatment must be based
on considerations other than the temporary status of the employees. For
example it was be decided not to offer training opportunities to temporary staff
because they will be leaving the agency before the training is complete.

Statutory leaves such as maternity leave, parental leave, adoptive leave, force
majeure leave, annual leave and public holidays all have their own qualifying
conditions and these conditions are not necessarily affected by this legislation.

Again protective legislation such as the unfair dismissals legislation,
redundancy and payment of wages acts, contain provisions with regard to
coverage etc, and these provisions are not affected by this Act, for example
after 12 months service an employee is covered by the Unfair Dismissals Act.
8
4.
CONTRACTS OF EMPLOYMENT
In light of the new legislation the issuing of contracts to temporary employees has
become extremely important. Local managers must be extremely vigilant to ensure
that the temporary contract reflects the specific circumstance of each individual’s
temporary employment. Guidance on the issuing and management of contracts and
model temporary contracts of employment follow.
Initial Contract
At the commencement of an employee’s temporary employment s/he should be
provided with a contract, which in addition to providing the standard information
relating to the terms and conditions of employment, should include information
relating to the employment circumstances and the objective reason which will bring
about the termination of their contract, i.e.

Reaching a specific date, e.g. 31st December; or

Completing a specific task, e.g. building of a hospital wing; or

The occurrence of a specific event, e.g. the return of a person / persons from
long term sick leave / annual leave; or the filling of the particular post on a
permanent basis.
These conditions must be specified in writing in the contract of employment. Sample
contracts are available as appendices.
Renewing a Temporary Contract
Where it is intended to extend or renew a temporary / fixed term contract, the
employee must be advised in writing by the employer of the objective reasons for the
renewal and the reason as to why s/he is not being offered a permanent contract e.g.
permanent competition has not yet taken place; there has been no formal approval to
make permanent appointments; or the particular requirement for temporary cover
continues. This information must be set out in writing to the employee no later than
the date of the renewal.
In the case of renewals of temporary contracts the employer must again specify in
writing the grounds which will bring about the termination of the contract:
9

Arriving at a specific date, e.g. 1st July; or

Completing a specific task, e.g. finishing a research project; or

The occurrence of a specific event, e.g. the return of a permanent employee
following maternity leave.
There is no limit on the number of temporary contract renewals or extensions which
an employee may be given but the matter of important is that the individual
understands the temporary nature of their employment, the reasons for their continued
temporary employment and the reasons which will bring about the termination of the
contract.
Automatic Permanency
Existing temporary employees who were in employment when the legislation came
into force i.e. 14th July 2003; who completes or have completed three or more year’s
continuous service with their employer, may have their contracts renewed only once
more by the employer for no longer than one year. Following the next renewal the
temporary contract will be deemed a contract of indefinite duration; i.e. a permanent
contract of employment.
Also where new employees (i.e. employees recruited after the passing of the Act) are
employed on two or more continuous temporary contracts the total duration of these
contracts may not exceed four years or the contract will be deemed to be permanent.
For example, an employee on a two year initial fixed-term / temporary contract, the
contract will be automatically deemed permanent if it is renewed for more than a two
year period; i.e. the four year aggregate has been exceeded.
However the legislation does provide for an exemption to these provisions where
there are objective grounds justifying the renewal of a contract of employment for a
fixed term (please see next section – Exemptions).
Termination of Temporary Contracts
10
At the outset it is important to note that the majority of temporary employees who
have twelve months continuous service come under the scope of the Unfair
Dismissals Act, 1977-1993. The Act provides that temporary employees cannot be
“let go” merely because they do not have a “permanent” designation. The legislation
does not distinguish between “temporary” and “permanent employees”; it is the
employee’s length of service that determines whether or not s/he comes within the
scope of the Act.
The Unfair Dismissals Act provides that a dismissal is deemed to be unfair unless
there are substantial grounds to justify it. Substantial grounds in the main include:
capability, competence or conduct of the employee. Describing the contract as
temporary contract does not constitute substantial grounds to justify a dismissal.
Therefore where temporary employees who are “let go” after they have acquired
twelve months service may claim unfair dismissal under the Unfair Dismissals Act
1977-1993. The employer would then have to prove that the termination was due to
the temporary purpose / work for which the employee was recruited ceasing to exist
and was fair in all the circumstances.
11
5.
EXEMPTIONS
Exemptions to the automatic permanency rule may be permitted if the employer can
demonstrate an objective justification for the extension of a period of temporary
employment. The renewal of a temporary contract for a further fixed term must be for
the purpose of achieving a legitimate objective of the employer and a further
temporary contract is appropriate and necessary to achieve that objective.
For example : where a person is appointed on a temporary contract pending the
filling of the post in a permanent capacity by the Local Appointments Commission
(LAC), if the employer can prove he is making every effort to have the appointment
made but failed due to complications in the process, then the objective justification
criteria may be satisfied. However if the employer is contending that he is obliged to
have the LAC make the permanent appointment but can not demonstrate that he is
doing everything within his power to encourage the LAC to make the appointment
without delay, he may lose the argument.
The same rational would apply to failure by an employer to make an appointment
under any of the obligatory recruitment processes such as open competition. In this
case the employer would have to be able to demonstrate that he has been making
strenuous efforts to make the appointments. It is not sufficient for an employer to
argue that an employee is obliged to undergo a particular process before permanent
appointment can be made (remember the employee will have been in the employment
for 3 / 4 years).
Please note: If an employer is to rely on an objective justification argument, each
case will be judged on its merits by the Rights Commissioner and Labour Court.
12
Appendix A Initial Temporary Contract
Temporary employees should be issued with contracts of employment appropriate to
the specific circumstances for which they are employed. These circumstances will
include all of the standard exigencies such as annual leave, sick leave, etc. A sample
temporary contract is attached and this contract maybe issued to cover all temporary
exigencies.
To ensure compliance with this legislation every effort should be made to establish
the purpose / duration of the temporary contract. It is important to determine at the
outset which circumstance will be about the termination of the contract :

Reaching a specific date, e.g. 31st December; or

Completing a specific task, e.g. building of a hospital wing; or

The occurrence of a specific event, e.g. the return of a person / persons from
long term sick leave / annual leave; or the filling of the particular post on a
permanent basis.
However it is not always possible to ascertain accurately in advance the termination
date of the purpose for which the temporary employee is employed or the temporary
services of the employee may continue beyond the specified date on the original
contract. It is important to note that there is no barrier in the legislation to the
renewal of this type of contract. However the temporary contract may be deemed
permanent after certain time periods (see page 10).
13
SAMPLE CONTRACT – Temporary employment
Name & address of Employer
Name of Employee:
_____________________
Address of Employee:
_____________________
_____________________
_____________________
The Agency requires short-term temporary staff for the summer period, 2004.
You will be employed from 1st June to 27th August, 2004.
1.
You will be employed as a Hospital Care Attendant.
2.
You will report to ____________
3.
Your main duties are set out in the attached job description.
In addition to your normal duties, you may be required to undertake other duties
appropriate to your position as may be assigned to you by your supervisor.
4.
Rate of remuneration:
£***.** per week. This amount will be
adjusted in line with any national wage agreements.
Statutory deductions will be made in respect of PAYE and PRSI (Class A).
You will be paid fortnightly in arrears by paypath.
The terms of the Local Government Superannuation Code apply to staff of the
Agency. You will be required to contribute to the scheme.
5.
The standard working week for your grade is 39 hours. You will be rostered
over seven days of the week, i.e. Monday through Sunday. Your initial roster will be
from 8 a.m. to 5 p.m., starting on 1st June.
You may be required to work night duty during the period of your employment.
Unsocial hours premia will be paid at the approved rates.
You may be required to work overtime, depending on service requirements. Overtime
will be paid at the rates approved by the Department of Health & Children.
6.
Copies of the Agency’s grievance and disciplinary procedure will be issued to
you on commencement of your employment.
7.
Your work performance and conduct will be regularly appraised during the
period of your employment.
8.
Annual leave is ____days per annum. You are entitled to pro-rata of this
entitlement, therefore you will receive 1/12 of this entitlement for each month of
service.
Public holidays will be granted in accordance with the Organisation of Working Time
Act, 1997.
14
9.
You are covered by the Board’s sick pay scheme for officer grades, details of
which are set out in the staff manual.
10.
The Agency is committed to ensuring the safety, health and welfare of its staff
and, to this end, a safety statement has been prepared setting out all the safety
arrangements which are in force. You will be familiarised with these arrangements on
commencement of your employment and will be obliged to adhere to them at all
times.
11.
Confidential information must not be divulged or discussed except in the
performance of normal duty.
12.
Your employment with the Agency shall cease on 27th August, 2004. The
Unfair Dismissals Act, 1977-1993 shall not apply to your dismissal consisting only of
the expiry of your contract on this date.
13.
The Board reserves the right to terminate your contract prior to the above date
on the giving of one week’s notice in accordance with the Minimum Notice and
Terms of Employment Act, 1973-1991.
14.
Your terms and conditions may be revised in accordance with agreements
reached between the union representing your grade and the Board.
15.
A copy of the Agency’s staff manual is enclosed and forms an integral part of
your contract.
I accept and agree to be bound by the above terms and conditions.
SIGNED:
………………………………. (Employee)
DATE:
……………………………….
SIGNED:
………………………………. (for the Board)
DATE:
……………………………….
15
Appendix A1
Renewal of a Temporary Contract
The employee commenced employment with the organisation under a temporary
contract, however the need for his/her services continues and it is decided to renew
the temporary contract. The employee should be provided with the reason justifying
the renewal and the reason why a permanent contract was not offered, for example:
-
the permanent employee being replaced has sought an extension of his/her
contract of employment
-
the particular exigencies for which the temporary employee was providing
cover are continuing e.g. high levels of sick leave is ongoing
-
there has been a delay in making the appointments in a permanent
capacity
The legislation requires that the employee be advised of the reason for the failure to
offer a permanent contract and wording such as the following is recommended to
cover this requirement:
‘Your continued employment with the organisation if for a temporary purpose
and all permanent competitions are filled by open competition.’
The circumstances which will bring about the termination of this renewal must again
be stated:

Reaching a specific date, e.g. 31st December; or

Completing a specific task, e.g. building of a hospital wing; or

The occurrence of a specific event, e.g. the return of a person / persons from
long term sick leave / annual leave; or the filling of the particular post on a
permanent basis.
This information must be communicated in writing.
16
Appendix B Specified Purpose Contract
A specified purpose contract should be issued where there is a clear need to employ
an individual on a once off basis; for example:
-
to carry out a particular project. The contract will not necessarily be for a
specific period of time but rather be for the purpose of completing the
project; or
-
to replace a staff member whose absence is clearly determined in advance;
or
-
to provide service pending the filling of a particular vacancy on a
permanent basis through open competition.
The specified purpose contract can be issued for longer than three or four years
without being automatically deemed a permanent contract. However the important
thing about this contract is that it is issued for a specified purpose e.g. to provide
cover for a five career break, or pending the filling of the post in a permanent
capacity. The specified purpose must be genuine i.e. it is genuinely intended that the
individual involved is serving a particular purpose and that purpose will come to a
definite end.
The main situation where this type of contract is issued is where the permanent filling
of the posts is determined by collective agreement, Department of Health & Children
dictate, or statute. However genuine efforts should always be made to hold the
competition for the filling of the posts on a permanent basis at the earliest possible
date.
Renewals of this type of contract will be a rarity. The purpose for which the
individual is engaged must be clearly communicated to the temporary employee.
These contracts will normally include the exclusion provision under the Unfair
Dismissals Acts 1977-2001 (see point 4 of the sample contract).
17
SAMPLE CONTRACT – Specified Purpose Contract
Name & address of Employer
Name of Employee:
_____________________
Address of Employee:
_____________________
_____________________
_____________________
1.
You are employed as a Clerical Officer Grade III.
2.
Your employment commences on _________________.
3.
Your employment with the Hospital shall be for the purpose of filling a
Clerical Officer vacancy on a temporary basis pending the permanent filling of
the post through open competition.
4.
The Unfair Dismissals Acts, 1977-1993 shall not apply to your dismissal,
consisting only of the cesser of the said purpose.
5.
The position for which you have been recruited is in the Medical Records
Department.
6.
You will report directly to ________________
7.
The main duties of your position are set out in the attached job description.
In addition to your normal duties, you may be required to undertake other duties
appropriate to your position as may be assigned to you by your supervisor.
8.
You will be paid at the minimum point of the Department of Health and
Children Clerical/Administrative Grade III salary scale:
£***.
Statutory deductions will be made in respect of PAYE and PRSI (Class A).
You will be paid fortnightly in arrears by paypath.
The terms of the Local Government Superannuation Code apply to staff of the
Agency. You will be required to contribute to the scheme.
9.
The normal attendance hours for your position are 9 a.m. to 5 p.m., Monday to
Friday.
You may be required to work overtime, depending on service requirements. Overtime
will be paid at the rates approved by the Department of Health and Children.
10.
Annual leave and public holidays are granted in accordance with the
provisions of the Organisation of Working Time Act, 1997. Your annual leave
entitlement will be 23 days per completed year of service.
11.
You are covered by the Board’s sick pay scheme for officer grades, details of
which are set out in the staff manual.
18
12.
A system of regular appraisal will be operated during your employment which
will involve discussions between you and your supervisor in relation to your
performance and conduct.
13.
Details of the Agency’s grievance and disciplinary procedures shall be issued
to you on commencement of your employment.
14.
The Agency is committed to ensuring the safety, health and welfare of its staff
and, to this end, a safety statement has been prepared setting out all the safety
arrangements which are in force. You will be familiarised with these arrangements on
commencement of your employment and will be obliged to adhere to them at all
times.
15.
Confidential information must not be divulged or discussed except in the
performance of normal duty.
16.
Notwithstanding the fact that this is a specified purpose contract, the Agency
reserves the right to terminate this contract prior to the cesser of the purpose on the
giving of the appropriate period of notice set down by the Minimum Notice and
Terms of Employment Act, 1973-1991.
18.
You will be required to give the Hospital at least one week’s notice in writing
of your intention to terminate your employment.
19.
On the cesser of the purpose of this contract, you shall cease to be an
employee of the Agency. Any further employment offered to you shall be at the sole
discretion of the Agency.
20.
A copy of the Hospital’s staff manual is enclosed and forms an integral part of
your contract.
21.
Your terms and conditions may be revised in accordance with agreements
reached between the union representing your grade and the Agency.
I accept and agree to be bound by the above terms and conditions.
SIGNED:
………………………………. (Employee)
DATE:
……………………………….
SIGNED:
………………………………. (for the Hospital)
DATE:
……………………………….
19
Appendix B1
Renewal of a Specified Purpose Contract
Renewal of a Specified Purpose Contract will be a rarity, however there may be a
need for a extension of the contract and a renewal can be granted provided that there
are objective reasons justifying the renewal and these are communicated to the
employee. For example, a genuine reason has arisen which justifies the renewal of
the specified purpose contract such as the fact that the research project has received
additional funding.
20
Appendix C
Permanent Contract
The legislation does not distinguish between “temporary” and “permanent”
contracts. Employees who are not deemed to be employed on contracts of fixed
duration (temporary) or contracts of indefinite duration (permanent).
21
APPENDIX D
Terms of Employment (Information) Act, 1994
The Terms of Employment (Information) Act, 1994 requires employers to provide a
written statement to employees, setting out particulars of the employee’s terms of
employment, within two months of the date of commencement of employment. This
Act applies to all employees who have at least one month’s continuous service and are
normally required to work for at least eight hours a week. In the case of temporary
contracts, an employer must specify the expected duration of employment. If the
contract is for a fixed-term, an employer must specify the date on which the contract
is due to expire.
The following information must be provided to an employee within 2 months of
commencing employment:

Full name of employer and employee

Address of employer

Place of work

Title of the job and duties and responsibilities

Date of commencement

Probationary period

Hours of attendance

Rate of remuneration and method of pay

Whether paid at weekly or monthly intervals

Conditions relating to overtime

Conditions relating to paid leave

Periods of notice to be given and received upon termination of contract

Reference to any collective agreement
22