4+ Years Continuous FTC, Denied Permanency and ACAS help

[NyxEbonfell]

Hello all,

I’ve started ACAS Early Conciliation but haven’t had the first call yet, so I’m feeling a bit stuck and would appreciate some guidance or tips for the ACAS discussion. Hopefully I lay this all out okay.

I’ve been employed for over four years on consecutive fixed-term contracts, with no break in service. My understanding is that the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 say that after four years on successive FTCs, you are generally treated as a permanent employee unless the employer can objectively justify otherwise.

If I’ve misunderstood any part of the 4-year rule or FTC regulations, I’m happy to be corrected.

Earlier this year:
A week before FTC was due to expire and I was due to go abroad, I chased my manager for an update. She called me, confirming new FTC was being issued. I was aware of the 4-year rule, so I raised this with her. My manager clearly confirmed that the process to make my role permanent had already been started but would take months to go through the necessary channels. I figured FTC would have to roll through anyway. Months passed with no updates, but based on that assurance I assumed things were progressing. I’ve had no one-to-one meetings since returning to the role, and communication from my manager is rare unless work issues arise.

Recently:
I emailed her about it after noticing an issue booking holiday, but she did not reply. Two weeks passed with no response. Realising I should start ensuring things were documented, I contacted HR. They formally denied permanency and stated no request had ever been made. They initially closed the query without addressing the contradictions and then issued a new FTC. When I challenged this, the query was re-opened.

HR’s reasons given:
- My role is “non-FTE” due to internal headcount/system rules, so they say they “must” use FTCs.
- Future automation was always planned, as the role “only exists due to Covid.” (I believe automation is unrealistic due to the human judgement involved in the work.) No roadmap exists as far as I am aware or has not been shared so far.


Unequal treatment / communication issues:
Colleague: My FTC colleague, identical role.
Permanent Employee: Same department, originally in a different team but later moved into our role where he remains in hybrid role.

• Over time, I’ve consistently received less favourable communication/treatment than my colleague in the same FTC role.
• After HR issued the new FTC, my manager tried to book a call with me about it. Now cautious and wanting to protect myself, I declined and requested all contract matters going forward be in writing. She then gave important information about the future of the role to my colleague instead, in a private call. She told him this was the last FTC we would be issued, citing automation. I only found out second-hand from him when we were discussing our new FTCs, as we were both surprised that they could issue another FTC given that we have both been with the company for over 4 years.
• I have not heard from our manager. HR has not responded since I mentioned my declining my manager's meeting, my request to her for written communication going forward and her not following up with me despite my request.
• Some background: Our team originally “lost all heads” and the two of us (both FTCs) were moved to another department for a year. The original role continued under a permanent employee from a different team during that time, who absorbed the work full time.
• Towards the end of our contract in that other department, my colleague was consulted and reinstated to our original team by the same manager to “help permanent employee with the workload”. I received no update/offer and was only brought back on days before my contract expiry because the permanent employee’s heart surgery, originally 2 months away, was brought forward. As a result, the team suddenly needed two people again to cover the workload.
• This permanent employee, who continued the work and retained certain tasks (including first point of contact for our role, within the business), is listed on the current organisation chart as our role, but my colleague and I are no longer shown on it at all, even though we are back in the role again.

Impact:
I relied on the assurance that permanency had been requested and was in motion. Because of this, I did not look for a permanent job elsewhere, and now my Statutory Maternity Pay (SMP) eligibility may be affected.


Questions about ACAS / COT3:
1. Do I need to agree to a COT3 in order to achieve permanent status via ACAS?
2. If I accept permanent status, could that prevent me from raising a future claim — e.g., redundancy selection — if the work continues or they retain my colleague instead of me?
3. Should I wait until a COT3 is actually offered before paying a solicitor to review it?
4. If my FTC continues past 4 years with no written justification, is that legally allowed under the 2002 Regulations, given the work is ongoing?
5. How much of my timeline/evidence does ACAS share with the employer during conciliation, if any?
6. Is there anything I should be aware of now that my employer knows about the ACAS involvement (they had me sign a ‘without prejudice’ FTC)?


Any guidance would be really appreciated.

[ULA]

NyxEbonfell you have provided a lot of information but I cannot see where you have sent out what your claim is in respect of the Early Conciliation which would be useful for answering your questions

[NyxEbonfell]

Hi. For my Early Conciliation, I stated that my claim is failure to convert my role to permanent status as I have 4+ years of continuous FTC, plus less favourable treatment compared to my colleague. I am curious how ACAS typically handles these sort of issues. I'm also unsure how COT3 works and how it could affect possible future unfair dismissal and redundancy. i.e If colleague or the role itself is kept on.

[ULA]

In respect of converting your role to permanent status as you have 4+ years of continuous FTC, although you are generally considered a permanent employee your employer can argue that continuing fixed-term contracts is justified by "objective grounds". There is case law around this where the Employment Appeal Tribunal confirmed that four years does not automatically equal a permanent position. The tribunal will need to consider whether the employer had valid reasons for keeping the contract fixed-term.

To claim unfavourable treatment compared to a colleague, who is a permanent member of staff, you will need do demonstrate a difference in terms and conditions (e.g., pay, benefits, training, promotion opportunities)

In respect of your questions:

1. A COT3 is the formal document used by ACAS to record the terms of a settlement between you and your employer. It will record what has been agreed between both of you in order for your claim/s to be settled and for you not to proceed any further with your claim/s. Once both parties confirm the terms with ACAS and this can be verbally before the written COT3 is prepared, the agreement is legally enforceable. You then waive your right to pursue the claim/s further.
2. I am unclear as to why you are considering future claims, you may never need to make a claim again. However, whether you can bringfuture claims depends on the wording of the COT3 relating to your current claim/s.
3. It depends entirely on your financial position. As I have said there is usually verbal agreement by both parties before the COT3 document is prepared.
4. The ACAS caseworker will share the information they believe is relevant to our employer to try and bring about a settlement.
5. If you have started Early Conciliation (EC) and you have a caseworker assigned, then it is highly likely they will have reached out to your employer.