Fixed Term Contract - employment terminated 8 months early

[QueenAnne]

Hey Beagles,

I need some legal opinion here. It'll be long, I'll try to describe the situation.

[edited for privacy]


Back to my employment, they gave me the notice period per contract. They say it's reason is 'termination of fixed contract' and nothing disciplinary or performance etc.

The paragraphs in question - bold italic highlighted is the clause they referred to noting this enables them to term my employment;
As far as I know this clause only specifies how much the notice period is - which is required at the end of the contract term in this case since there's no reference to early term.
To me it seems they take this as if the contract was a permanent contract, at the same time I wasn't given the same rights as a permie - e.g. 2 days notice, bring witness to meeting about employment etc.

About employment:

3. CONTINUOUS EMPLOYMENT
3.1 Your employment will be for a period of around 12 months from the start date and will end on the 30th June 2014. No employment with a previous employer counts as part of your period of continuous employment with the Company.
4. WARRANTY

About termination:

15. TERMINATION OF EMPLOYMENT
15.1 Except as otherwise provided in Clause 3, the period of notice to be given in writing by the Company to terminate your employment is one month’s notice if you have been employed for less than 4 years and thereafter one week’s notice per year of continuous employment up to a maximum of twelve weeks’ notice after twelve years’ continuous employment.
15.2 The period of notice to be given in writing, subject to clause 3, by you to terminate your employment is the same as required by the Company under clause 15.1.
15.3 The Company reserves the right to dismiss you without notice or payment in lieu of notice if it has reasonable grounds to believe you are guilty of gross misconduct or gross negligence or other substantial grounds justifying your immediate dismissal including any significant breach of your contractual obligations. Examples of conduct that would entitle the Company to terminate your employment summarily can be found in the Company Disciplinary Policy and Procedure
15.4 The Company may make a payment pursuant to clause 15.1 regardless of whether or by whom notice has been given and in respect of the whole or the balance of the notice period which would otherwise be required under that clause.
15.5 For the avoidance of doubt, the right of the Company to make a payment in lieu of notice does not give rise to any right on your part to receive such payment.
15.6 Upon termination of your employment (howsoever occasioned) you shall not be entitled to any compensation in respect of any loss of any right or benefit or prospective right or benefit under any bonus plan operated by the Company for the bonus year in which the termination takes place.
15.7 On the termination of your employment, or at any other time in accordance with instructions given to you by the Company, you will immediately return to the Company all equipment, correspondence, records, specifications, software, models, notes, reports and other documents and any copies thereof and any other property belonging to the Company which are in your possession or under your control.
15.8 After notice of termination has been given by either party and provided that the Company continues to pay your basic salary and to provide all contractual benefits, until your employment terminates the Company has absolute discretion for all or part of the notice period to:
(A) exclude you from such of the premises of the Company as it may direct; and/or
(B) instruct you not to communicate with customers, employees, agents or representatives of the Company; and/or
(C) instruct you to perform some only or none of your duties under this Contract.
15.9 During any such period during which the Company exercises its rights under clause 15.8, you agree to remain bound by your contractual obligations owed to the Company under this
Contract as well as all common law duties to the Company, including duties of care, fidelity, obedience and good faith shall continue.
15.10 If your employment is terminated because of the liquidation of the Company for the purpose of amalgamation or reconstruction and you are offered employment with such amalgamated or reconstructed company on terms no less favourable in all material respects than the terms of this Contract you shall have no claim against the Company in respect of any such termination.
16. RESTRICTIVE COVENANTS

Any opinions, is my contract term legal then? I doubt it is, without reason given, and with this contract and this way of handling.
PS was employed, PAYEE, taxes and NI paid pro rata.

[QueenAnne]

Re: Fix Term Contract - employment terminated 8 months early

https://www.gov.uk/fixed-term-contra...dterm-contract

If the employer wants to end the contract earlier

What happens depends on the terms of the contract. If:

• it says nothing about being ended early, the employer may be in breach of contract
• it says it can be ended early, and the employer has given proper notice, the contract can be ended

The minimum notice period fixed-term employees are entitled to is:

• after 1 month’s continuous service, but less than 2 years = 1 week
• after 2 years’ continuous employment = 1 week for each year worked

These are the minimum periods, and the contract may specify a longer notice period.

If an employer ends a contract without giving the proper notice, the employee may be able to claim breach of contract.

[Amethyst]

Re: Fix Term Contract - employment terminated 8 months early

Is there a provision in your contract for ending it early ?

If the employer wants to end the contract earlier

What happens depends on the terms of the contract. If:

• it says nothing about being ended early, the employer may be in breach of contract
• it says it can be ended early, and the employer has given proper notice, the contract can be ended

The minimum notice period fixed-term employees are entitled to is:

• after 1 month’s continuous service, but less than 2 years = 1 week
• after 2 years’ continuous employment = 1 week for each year worked

These are the minimum periods, and the contract may specify a longer notice period.

If an employer ends a contract without giving the proper notice, the employee may be able to claim breach of contract.

from https://www.gov.uk/fixed-term-contra...dterm-contract


I couldn't quite work out from your post the scenario - I've read from it that you gained a fixed term contract of 1 year and after a month or so in employment went to the HR department to ask for a different job as the one you were doing wasn't what you had expected ? You didn't get the new position (in the same company), had some time off sick and complained about your boss bullying you, and they ended your contract by asking you to a meeting on the same day without notice, and ended your contract with immediate affect saying it was just the end of the contract ?

Just checking if I've got that right in summarising.

edit - crossed posts - great minds and all that.

[QueenAnne]

Re: Fixed Term Contract - employment terminated 8 months early

No provision - I copied those parts of the contract word by word into my post...

[edited for privacy]

thanks for your help

[Amethyst]

Re: Fixed Term Contract - employment terminated 8 months early

So they gave you paid notice as per 15.1 after you'd been employed three months.

I do see what you mean clause 3 and 15 don't really go together, so possibly breach of contract. What resolution are you looking for?

Did they give any reason why the job you ended up doing differed so much from the one you had interviewed for and been led to believe you would be doing ?

[QueenAnne]

Re: Fixed Term Contract - employment terminated 8 months early

I do see what you mean clause 3 and 15 don't really go together, so possibly breach of contract. What resolution are you looking for?

If I end up unemployed, I will pursue any claim I have - IMO they mishired me then terminated it one-sided and without my consent, causing me loss of income (8 months wages)
I told them clearly; I don't agree to terminating my contract and setting a new end date because I don't have another employment contract signed elsewhere, they risk my living. I repeated in written 2 times that there is no clause in my contract to terminate early, so I ask them to stop pursuing me to agree to such termination. I also noted that I doubt that my unhappiness in my role - as there was no other reason cited - can be ground to fire me or terminate my contract. It's in written, I copied my privy address thank goodness (as I have no access to my emails from the company sent to my company address.)

Did they give any reason why the job you ended up doing differed so much from the one you had interviewed for and been led to believe you would be doing ?

Not really. the title is the same, that's it. it was a new role, that is the most I received as reason. The "may have tweaked it a bit" came only today - before today there was firm denial that there is a difference. If I gave you my CV and my goals I cited on my interviews, versus what I was doing you'd think I must be an idiot killing my career on purpose. The person who interviewed me for the internal role asked what I was doing and then remarked that my current tasks have nothing to do with my chosen profession.

[QueenAnne]

Re: Fixed Term Contract - employment terminated 8 months early

Update, about yesterday.

I wrote this an hour before the mysterious meeting titled "Meeting to discuss role" that I declined. I wrote this knowing well that altering my contract terms (such as end date) requires consent.

After the meeting last Monday, I reviewed my contract with my legal rep to ensure I am not 'employed by favour' as I was told.
The quoted clauses do not enable .....(employer) to terminate my contract early unless there is a claim that I am guilty of gross misconduct or gross negligence. There is no clause in my contract for early termination and no disciplinary action has been brought against me.

I am being pursued to provide my agreement to this termination, so that it would seem 'mutual' when indeed it is not.
I noted already and in writing that I am not able to agree to terminate my contract, and stated strictly that I do not agree.

Shall my decision change, and I have a formal update, I will provide update formally in the required and appropriate manner.
I don't believe that my situation – knowing that I am not happy in my role, and I am looking for a change – enables HR to pressure for my agreement to end my employment, thus please may I kindly ask you to stop?

If you still wish to discuss my employment further, I kindly ask that you give me the required 2 days' notice and clear reasons and agenda to allow me to prepare, and that you confirm my ability to bring a witness of my choosing to the meeting, as I wish to uphold my right to do so.

Else if you wish to proceed now to terminate my employment earlier than clause 3 of my contract, please be advised that you are doing so against my will and without my agreement.

After this, I was called into the meeting, to "understand" what HR wants. On the meeting I was told there is miscommunication, they don't seek my consent or approval - they terminate the contract. I was told that there's no disciplinary or performance issue as reason either. Said that they can legally do, any lawyer saying otherwise is misinformed by me. Also they don't need to give me any kind of notice as I must know since I said I am unhappy in my role 3 weeks ago, they are not obliged to employ me or find a new role or change anything.

Here's the letter I received;

Following our recent discussions this letter is to confirm that your current temporary contract with ....... will terminate on 8th November 2013.
Under the terms of your contract in clause 15.1, you are entitled to receive one month's notice. As agreed you are not required to work your notice period so your last day in the office will be 8th October 2013. Any holiday that you have accrued and not taken should be used between now and your termination date. You will be paid up to 8th November 2013.
[the rest of the letter is about returning equipment and cease of benefits I was signed up for, unrelated to employment.]

Based on the above, they say they pay me up to 8 November, but in doing this I have a serious loss since my original contract was up to 30 June 2014, and they changed this without my consent. There is no reason provided - all I have is in the letter. I highlighted some bold underlined parts in the letter quote, ambiguous statements in attept to wash away the contrast with what my email clearly stated (IMO)

Just a quick research online;

http://www.shoosmiths.co.uk/client-r...yers-1284.aspx

It's not a fixed-term contract if we can give notice before the end of the term
A contract is still a fixed-term contract notwithstanding that it allows for the parties to bring it to an end early by giving written notice. A " pure" fixed-term contract which did not include this flexibility would potentially be very expensive for an employer who wanted to terminate early: they would be liable in damages for breach of contract based on the employee's remuneration and benefits until the end of the fixed-term.

but more importantly;
http://www.google.co.uk/url?sa=t&rct...53760139,d.d2k

What is a “fixed term” contract?
As of October 2002 new legislation was introduced, The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations. This expanded the definition of a fixed term contract to be:- a contract of employment which is offered to an employee that will terminate on either…….

• the expiry of a specific term,
• on the completion of a particular task (i.e. a contract for a task)
• on the occurrence or non-occurrence of any specific event

e.g. a fixed term contract until 31^st March 2014 or a fixed term for two years starting on 1^st April 2013
a fixed term contract for the organisation of an annual carnival
a fixed term contract until the return of an employee from maternity leave

What many employers do not realise is that if a specific duration is defined in the contract (without the mention of any notice period to end the contract early), that duration is a fundamental part of this legally binding contractual agreement. Hence, if the offer of a fixed term contract is for two years, the employee is expecting their employment to continue for that period of time. Any attempt to end the contract early could therefore be a breach of contract and the employee would be legally entitled to damages for Wrongful Dismissal, i.e. their full pay up to the end of the contract period.

It is therefore very important when offering any fixed term contract to allow the potential for the contract to be ended early without it potentially causing a breach of contract claim. This can easily be achieved by wording as follows:-

A three year fixed term contract commencing on 1 April 2013, due to terminate on 31 March 2016, unless brought to an end before that date by either side on giving notice.

and;
http://www.hrzone.com/topic/employme...isguise/138522

As I see (being biased), my case is a breach of contract - I haven't consented to this change, there was no agreement about it. I know full well that I cannot claim unfair dismissal (would need 2 yrs of employment to do it, I don't have that.)

15.1 Except as otherwise provided in Clause 3

With Clause 3 setting the end date, this quoted statement is now used to justify the company has the right to early terminate, giving the notice as set out after this statement. I don't think this allows early termination - I also don't think this can replace the required clear provision clause that would say the employer can at their discretion terminate the contract early. In my opinion the clause is missing, it should have been part of Clause 3 and it is not there.

Questions;

1. Am I right that my contract is not including the provision to allow early term, as it would be required/satisfactory?

2. Am I right that I am entitled my wages until the end of my original contract?

3. If I find a new employment, how will that affect my claim?

[Amethyst]

Re: Fixed Term Contract - employment terminated 8 months early

That's what I was thinking - damages would be payment to end of fixed term.

I think the main point of contention is the wording of para 5, as presumably the rest of the contract doesn't say anything about early termination either.

5.1 Except as otherwise provided in Clause 3


I would speak to ACAS about the contract termination - I think para 5 only kicks in if nothing is provided for in para 3, and para 3 in amended to suit individual contracts. I don't think it would be employment tribunal stuff, more claim for damages due to breach of contract - I'm sorry I don't know how you'd do that.

[QueenAnne]

Re: Fixed Term Contract - employment terminated 8 months early

Talked to ACAS - they tell me to see a lawyer and take my contract.....
They say they cannot tell, there's the notice clause which would come with early termination clause, but there is no early term clause. Only a lawyer can tell based on the wording - something similar to what you said, "except as otherwise provided" - this statement doesn't clearly allow the termination and ACAS lady also said she can't tell if it's a breach of contract or not.

ACAS said the damages are the 8 months pay.

I am setting up the appointment with the lawyer.