Discrimination against fixed-term employees
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 prohibit an employer treating a fixed-term employee less favourably than a comparable permanent employee, unless the treatment can be objectively justified.
These regulations impact areas such as:
- rates of pay;
- access to occupational/company pension schemes;
- holiday entitlement;
- maternity/paternity leave;
- sick pay;
- employment opportunities;
- protection against redundancy or dismissal.
Do I qualify as a fixed-term employee?
A fixed-term employee is someone who works under a contract of employment that ends on a particular date, after a certain event or on completion of a specified task.
Examples of fixed-term employees include:
- ‘seasonal’ or ‘casual’ staff on short-term contracts (e.g., agricultural workers hired for two months during harvest season or holiday camp entertainers hired for three months over the summer);
- workers employed for a specific task or project (e.g., a solicitor hired by a law firm to help them prepare for a trial);
- employees on temporary cover contracts (e.g., a IT helpdesk professional hired to cover for someone on maternity leave);
- employees on “zero-hour contracts” (e.g., contracts under which an employer does not guarantee to provide work and pays only for work actually done).
You do not qualify as a fixed-term employee if you are:
- an agency or temporary worker engaged through, or by, an employment agency or bureau and supplied to a hiring employer on a temporary basis;
- a member of the armed forces;
- an apprentice, student or other trainee on a work-experience placement or temporary work scheme.
What is a ‘comparable permanent employee’?
This might be someone who works for the same employer, in the same organisation, and who does the same or broadly similar work as you. Where it is relevant to the job, it may also include someone who has the same or a broadly similar level of qualifications, skills and experience as you.
When is less favourable treatment ‘objectively justified’?
An employer can establish ‘objective justification’ by showing that a fixed-term employee’s contractual rights are, taken as a whole, at least as favourable as the permanent employee’s.
If this is not possible, the employer must show that there is an objective reason for treating the fixed-term employee less favourably. To do this, they must show that the less favourable treatment is:
- designed to achieve a legitimate objective, for example a genuine business objective;
- necessary to achieve that objective;
- an appropriate way to achieve that objective.
An oft-quoted example of objective justification is a fixed-term employee on a three-month contract who is denied a company car, even though a comparable permanent employee has one, because it would cost too much and there are alternative/less expensive ways to travel.
Note, however, that this does not just give employers carte-blanche to go off and discriminate willy-nilly on cost grounds. Where possible, they must offer fixed-term employees ‘pro rata’ benefits in proportion to the time that they will be working.
Pursuing a claim for discrimination
If you believe that you have suffered discrimination because of your status as a fixed-term employee, in most cases you should raise the matter with your manager and/or HR representative.
You should also note that you have a right to request and receive a written statement of reasons for the different treatment. Your employer should provide this within 21 days of receiving your request.
If you are unhappy with your employer’s response, your next step should be to make a written complaint under your employer’s standard grievance procedure.
If, having done this, you still believe your employer acted unlawfully you may want to seek legal help and file a complaint with an Employment Tribunal.
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