Posted By Diane Thomason This is a question about employment law - I thought I'd start here as I know some members are qualified in law. Scenario - person is on fixed term contract funded externally. End of contract is coming up in about 3 months, and manager will not answer yes or no when asked whether the contract will be renewed. Manager suggests contract won't be renewed because funding uncertain blah blah. Because of the uncertainty, employee is looking for other jobs and in fact has been offered one, but would prefer to stay in current job if contract can be renewed. Meanwhile, other employees funded on the same project have been told their contract WILL be renewed. A person senior to the manager says that the decision to renew individual contracts rests with the manager. The funding body apparantly says the funding will definitely be continued. Manager also speaks of making one of the posts a more senior one i.e. higher paid (the employee in question would not be able to apply though, because they don't have the particular qualification needed.) Funding therefore doesn't seem to be a problem so employee suspects strongly that the manager just wants them out. No performance issues etc have been raised. The manager seems to be deliberately marginalising this person: arranging key meetings that the person should be involved in (they are a team leader) and not telling them about it, so they miss the meeting (but their team members are invited!); cancelling one-to-one supervision meetings; leaving the employee to sort out difficult issues on the project without support; generally withholding information and "not being available" for discussion. The manager seems to have "favourites" too - and seems to be leaving this employee out of the clique, making them feel like they have been sent to Coventry. It is my understanding that the ending of a fixed contract is technically a dismissal and therefore must be fair and lawful. This employee has been given strong hints that their contract won't be renewed but is not been told whether it will or will not be. The person can't hold on much longer waiting to find out (has kids and mortgage.) My suspicion is that the manager is hoping that the employee will just leave, as the manager can't find grounds for not renewing the contract. The person is on the brink of leaving but would prefer to stay (despite the awful treatment by the manager who is making their like a misery.) If the person leaves, might there be a case for constructive dismissal? Opinions sought from legally qualified people please, or TU people with experience of this. BTW the person is not in a TU (not a unionised workplace.) Thanks in advance Diane

Posted By Diane Thomason Alexander, Thanks for this. This isn't actually my company involved. I'm interested in the employee's rights. This person is thinking of taking advice but it needs to happen quickly. I don't think the employee has been keeping a diary of incidents and conversations etc. but could certainly record summaries of a lot of the recent ones. They feel that "their word against the employer's" would not be accepted as evidence so it is heartening to know that you consider it would be admissable.

Posted By James Perry Diane, It is my understanding (as an HR Manager) that a fixed term contract is exactly that. The contract of employment ceases on the last day (as stated in the contract). Your "friend" may, however, have cause for constructive dismissal with the way that he/she is being treated. If this can be proven. In this situation (on either side) I would certainly consult ACAS for impartial advice. www.acas.org.uk or 08457 474747 Regards Jim

Posted By James Perry To add: The issue of external funding should also be addressed. Is the person actually an employee of the company? Does the funding directly pay their salary or is the company concerned recompensed by the external funding? This will make a difference. Again, consult ACAS on this. Regards Jim

Posted By Diane Thomason Thanks all, Jim - the person is an employee, I understand that the ext funding reimburses the salary costs. Dave - from my own TU: "In law, the expiry of a fixed-term contract is a dismissal. The non-renewal of a fixed-term contract is a 'normal' dismissal, not a redundancy, if an employer cannot satisfy redundancy criteria." As a dismissal, it can be fair or unfair. You can see my point in any case tho' - persons A and B are being told yes they can stay on, person C being told weeeelll, not sure if we can keep you, not sure about the money being available, oh by the way we might be recruiting someone new on a higher grade! this sure doesn't sound fair to me. In no way is this person redundant if the employers are thinking of indirectly replacing them.

Posted By Diane Thomason oops, didn't paste all of the bit about expiry of fixed term contract for Dave: "In law, the expiry of a fixed-term contract is a dismissal. The non-renewal of a fixed-term contract is a 'normal' dismissal, not a redundancy, if an employer cannot satisfy redundancy criteria. This will not necessarily mean it is an 'unfair dismissal'. However, such a 'normal' dismissal will be fair only if the employer can demonstrate that it was made because of the capability of the employee, the conduct of the employee or 'some other substantial reason'. It is not necessarily the case, but in practice it is quite likely that such a dismissal will be unfair. Unless proper dismissal procedures have been followed the employer will probably be unable to demonstrate that it was due to capability or conduct. It is also likely to be difficult to demonstrate that there was 'some other substantial reason' for the dismissal. " Note the 3 allowable grounds for fair dismissal in paragraph 2. Hey, do you think we can all claim CPD points for learning about employment law??

Posted By Alexander Falconer Diane, I only referred to the male/female scenario as an example Employment law is a specialised field, the recent comments posted barely scratch the surface. The main legislation on unfair dismissal can be found on s94 of the Employment rights act 1996 "an employee has the right not to be unfairly dismissed by his employer" Definition of dismissal - in this case is when a fixed term contract expires and is not renewed. This point is perhaps not so clear, if a specific project deems a time period, say 3 years, then the employer can recruit the person(s) required to complete the project in the agreed time span. In the case of the employees reaching the end of the time span, the proiject copmpleted, job well done, thank you to person(s), etc, etc If the task is not completed the employee can claim unfair dismissal if the contract is not renewed. Normally employers protect themselves through waiver clauses in the contract. Croners guide to managing fair dismissal provides a lot of useful guidelines

Posted By Hazel Harvey Diane, IOSH recently expanded its legal helpline provision to cover employment law. If you want to give DWF a call they should be able to give you some advice.Their number is in 'about membership' Hazel Harvey Director of Professional Affairs

Posted By Alexander Falconer Diane, unfortunately, fixed term contracts can be terminated by a month's notice on either side. Fortunately in Mo's case, the onus is to challenge this, and prove the dismissal was not fair. Under s98 of Employment rights Act 1996, the Employer has to show the main reason for dismissal and that it was one of the 5 fair reasons. 1) the capability or the qualifications of the employee for performing work of the kind which he or she was employed to do 2) the employees conduct 3) the employee was redundant 4) continued employment would have meant the employee, or the employer would be breaking the law 5) there was some other substantial reason of a kind as such to justify the dismissal of the employee in that position Please also bear in mind there are two hurdles to be crossed in unfair dismissal claims: there must be a fair reason for the dismissal, and the dismissal must have been justified - in other words the employer must have followed a reasonable procedure before deciding on dismissal. It is very often the second aspect that causes many employers problems, normally, it would not be beyond the ability of any manager to show that the reason for dismissal fell into one of the 5 categories listed. It is worth noting that employment tribunals often look beyond the stated reason for dismissal if the evidence suggests the employer had an ulterior motive.