Fixed-term employment contracts in the United Kingdom
| Autor | Roger M Walden |
| Páginas | 55-64 |
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According to the latest available figures from the Office for National Statistics (‘ONS’) and based on the United Kingdom Labour Force Survey, there were almost 1.6 million ‘temporary employees’ in the period August-October 2013. This amounted to some 6.2% of ‘all employees’ (somewhat higher than their proportion of the entire workforce, including the ‘self-employed’). This number increases substantially, however, if account is taken of those undertaking temporary work or engagements through temporary employment agencies (on this see Q.5 below).
What may colloquially be termed ‘temporary employment contracts’ can cover a wide variety of factual situations, including various forms of casualised, seasonal, insecure and precarious employment. Such engagements do not, however, form a separate or special category in UK law and determination of their legal status is subject to the same principles that are applied to any employment relationship. It follows that many -but by no means all- temporary engagements will be classified as ‘contracts of employment’ like any other, save in respect of their projected or likely duration and continuity. There is, therefore, no central guiding legal principle governing or statutory bar on their use by employers.
Certain types of temporary employment contracts are, however, specifically identified for the purpose of ensuring, in particular, that they are covered by certain core statutory employment protection rights, including unfair dismissal and redundancy payments rights under the Employment Rights Act 1996 (‘the ERA’ -on these see further Q.6 below) and the Fixed-term Employees (Prevention of Less Favourable Treatment Regulations) Regulations 2002 (‘the FTE Regs’ -these provisions having been enacted to give effect to the EU Fixed-term Work Directive [No.99/70/EC - ‘the FWD’]. These are known collectively as ‘limited-term’ or ‘fixed-term’ contracts and comprise:
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· Contracts for an identifiable and fixed duration that will normally terminate on the expiry of that term;
· Contracts of limited but uncertain duration that will normally terminate on the completion of a specific task or project; and
· Contracts that will normally come to an end on the occurrence or non-occurrence of a specific event (for example, withdrawal or loss of external funding).
These remain fixed or limited-term contracts even if they contain a term allowing for termination before normal expiry (see Allen v national Australia Group Europe Ltd [2004] IRLR 847). But in all cases they must be ‘contracts of employment’. In the UK this question is determined according to common law (as opposed to statutory) principles developed by the judiciary themselves over time on a case by case basis. The key factors taken into account are whether there is a ‘sufficient framework of control’ over putative ‘employees’; that ‘employees’ are wholly or predominantly required to carry out the work or labor themselves (that is, the requirement of ‘personal service’); and that there is an ongoing minimum ‘mutuality of obligation’ on the employer to offer work if it is available and on ‘employees’ to accept it if it is offered. Temporary employees working under such contracts will therefore in principle have access to the full range of statutory and other legal rights applicable to permanent employees.
Indeed, UK legislation further recognizes a broader category of ‘workers’ -who may not be ‘employees’ as just defined- but who nevertheless have access to a much narrower range of basic minimum rights, most notably the National Minimum Wage (‘the NMW’) and protection under the Working Time Regulations 1998 (‘the WTR’ - including statutory minimum paid annual leave). Such ‘workers’ -though ostensibly ‘self-employed’ and not ‘employees’- will be under contracts that require them to personally provide their own work or labor; actually work for one main employer for a significant period of time and so be in a similar position of ‘dependence’ as an employee; and not be a professional providing services to a client or a business providing services to a customer (see, for example, Byrne Brothers (Formwork) Ltd v Baird and others [2002] IRLR 96). The key in this latter regard is that ‘workers’ will not be advertising or holding out their services to the ‘whole world’. This generally excludes those working in the ‘established professions’ (such as barristers, solicitors, accountants and architects), shop owners and domestic household tradespersons (such as household plumbers, painters and decorators and cabinet makers -see Cotswold Developments Construction Ltd v Williams [2006]...
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