Fixed-term to permanent employee

[santboia]

Dear LegalBeagles,

I would like to get some information on the conditions under which an employee that has been working continuously for the same employer under fixed-term contracts should become a 'permanent employee', as per the "Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002”.

Here is a summary of my case:

1. I have been employed continuously for more than 4 years by a Russell group university.
2. My first contract was for a duration of 2 years because, according to the offer letter, "[I] have been appointed to work on a research project, supported by [external funder], which is dependent on an external research grant and for which there is no expectation that the work will continue beyond the availability of that external funding." Indeed, after two years, that funding run out.
3. When the end date of contract #1 was approaching (I had already been reminded my contract would end on such date), I was offered a 3-year extension, with essentially the same justification, namely, with reference to "a research project which is dependent on an external research grant".
4. In fact, over the last 2+ years my salary has been paid using funds from at least two different research grants, coming from entirely different funders.
5. In case this is relevant: None of my contracts or offer letters specify what project, grant, or external funder the contract is attached to. This I know verbally from my line manager, who has also told me several times that what I do can just as well fit with other (externally funded) projects ongoing within our team.
6. My employer has not signed a collective agreement or workforce agreement modifying the provisions in art. 8 of the "Fixed-term employees Regulations 2002".

My take on points 1-5 is that I am doing something that is an essential part of the (research-side) business of my employer, not a one-off temporary project. In other words, it would not be credible if my employer argued they would be stopping their work on my research area any time soon: the only reasonable expectation is that they will keep getting 3-5 year research projects on similar themes from a variety of external funders, and that to drive these project forward they will need to employ of similar capabilities and qualifications as myself. Is this within the bounds of the Regulations?

I guess the question boils down to what constitutes "objective grounds" justification. Is the finite-term character of research grants enough?

I look forward reading the opinions from the experts in the forum!

[ULA]

The employer would need to argue a good objective business reason for not allowing you automatically at the end of four years of continuous fixed term contracts, to become a permanent member of staff. The university may well argue that the uncertainty of funding is a good business reason for not making you a permanent member of staff.

Objective business reasons are those that can be justifiable by the employer:

1. They must correspond to a real need and legitimate objective of the employer

2. They must be appropriate to achieve this objective

3. They must be necessary to achieve this objective.

If an employer intends renewing a fixed term contract, and not granting a permanent contract then they should state in writing the objective grounds for a further fixed term contract. I assume this has not been provided to you.

There are a couple of Court of Justice of the European Union decisions that have tried to determine objective reasons which may be a useful read:

Adeneler v Ellinikos Organismos Galaktos (2006)

Marquez Samohano v Universitat Pompeu Fabra (2014)

Have you spoken with anyone about what the reasons are for the university not offering a fixed term contract?
*

[santboia]

Dear Ula,

Many thanks for your reply and help (and please apologies for my slow reply, I had not received an email that there was I reply).

I think it is perhaps simpler if I start replying to your last question:

Have you spoken with anyone about what the reasons are for the university not offering a fixed term contract?

I have not discuss the case in detail, but it is a rather standard situation in universities (particularly the 'stronger' ones), to employ research staff only with fixed-term contracts. These are almost always funded from funds associated to a research project awarded by a Research Council (or other external funder). Research projects last typically 3-5 years, and FTCs are offered usually for between 1 and 3 years, with possibility for renewal.

The discussion for why the job is not permanent is not really on the table -- one is expected to apply for a permanent position (lecturer or similar). There does not seem to be in the system a real provision for research-focussed staff, even though some universities (the so-called Russell Group) are "research intensive", i.e., employ systematically a large number of "research assistants" practically always via FTCs. What are the "objective" grounds for this practice, apart from long-standing tradition, I think has not been settled.

On this other point:

The university may well argue that the uncertainty of funding is a good business reason for not making you a permanent member of staff.

That could well be their position. Exactly what constitutes an "objective reason" seems to be the key question!

I will take a look at the cases from the CJEU that you cite. This is slightly off-topic, but do we know if those decisions will continue to have legal weight in the UK after Brexit?

[ULA]

My current understanding is that the government has said that pre-Brexit decisions of the European Court will be incorporated into UK law, which these are. What is not know will be the impact of post-Brexit decisions.