Guidance on School use of fixed-term contracts

Heads of Department will be aware that the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations took effect on 10 July 2006, placing an onus on employers to justify why staff employed for four years or more on a succession of fixed-term contracts have not been moved to open-ended or permanent contracts. The objective of the legislation is to ensure that employers do not abuse the use of fixed-term contracts and in particular do not use them to dismiss staff for performance reasons.

It is still legitimate to employ a member of staff on a fixed-term contract for a given length of time. In other words, a member of staff may be employed on a fixed-term contract of any duration; this aspect of the legislation is relevant only to renewal of fixed-term contracts and whether they can be objectively justified.

It is important to state at the outset that the meaning of open-ended or permanent in this context should not be interpreted as being underwritten by School funds. This is particularly relevant in the context of fixed-term staff who are funded from external sources; were they to be transferred to open-ended contracts, the duration of their contract would still be subject to the availability of funding from such sources and, if such funding were not available, then they would be at risk of being made redundant, just as they would be had they remained on fixed-term contracts. [This view has been confirmed by Mills and Reeve, Pinsent Masons and Counsel (Selwyn Bloch QC)]. Articles in the THES and elsewhere are misleading in this context as they do not make the funding aspect clear and imply that institutions, if they have decided to move individuals to open-ended contracts, will be bearing the salary bill.

The use of an open-ended contract may, in some institutions, mean more equitable treatment for staff on fixed-term contracts – for example redundancy procedures. Some institutions may not apply the same procedures for staff on fixed-term contracts as they would for staff on open-ended contracts. This is not the case at the School where no distinction is made.

The School only uses fixed-term contracts in very limited circumstances:

Covering staff absence (e.g. maternity leave, sabbatical, buyout leave)
Secondments
Where staff are funded by external sources of funding for a limited time
For particular projects where specialist expertise is needed
Time limited funding allocated by the APRC

These categories reflect the guidance given in the 2002 document agreed by the Joint Negotiating Committee for Higher Education Staff (JNCHES) and recognised trade unions. Mills and Reeve, Pinsent Masons and Counsel all agree that the JNCHES guidance is a “persuasive authority” should institutions ever be challenged on their use of fixed-term contracts.

The School will retain its present use of fixed-term contracts in the above circumstances which – pending developments in case law – may be seen to be objectively justifiable.

Funding

The source of funding for a fixed-term appointment would normally be expected to come from soft funding, rather than MSLs, although staff who are covering for absent staff or on short term School funding will have MSLs as their funding source.

School Approach to Fixed Term Regulations (10 July 2006)

Any member of staff with four years service and one contract renewal to date could claim eligibility to an open ended contract from 10 July 2006 unless there was an objective justification for keeping them on a fixed term contract (under one of the headings set out above). The same would apply for anyone who has been on a fixed term contract of four years duration if it is proposed to subsequently extend their contract.

Human Resources has reviewed the position of individual members of staff who are funded by MSLs and are on fixed term contracts and who have more than four years continuous service and a contract extension, as it was thought that staff funded by MSLs might argue that because they were funded by the School their post should be made open-ended and underwritten by School funds. All the non-professorial academic staff on fixed-term contracts funded by MSLs are in post to cover the absence of other academic staff.

Part-Time Teachers

The ‘four year issue’ does not arise frequently with part-time teachers as many are students and therefore only work as part-time teachers (or indeed as hourly paid researchers) for limited periods. Individual departments may wish to consider moving part-time teachers to fractional contracts where resources permit.

Research Staff

The School has decided to move research staff to open-ended contracts (explaining carefully that their appointments are still subject to the availability of external funding). The local UCU have agreed the School’s approach in this regard.

Human Resources has discussed with RPDD the replacement of the existing ‘contract end’ system with a fail-safe systems-based mechanism to ensure that appointments do not continue when funding comes to an end and that where appropriate, redundancy procedures can be implemented. A similar notification system has been implemented with RPDD to ensure that where further funding becomes available individuals can carry on.

The School does not use the convoluted procedures contained in the Academic Annex for dealing with research staff when their contracts come to an end but by agreement with the UCU uses the academic support staff redundancy procedure. (There is an argument, supported by legal advice, that there may well be justification for treating fixed term staff differently when considering whether to introduce simplified procedures for the termination of fixed term contracts. This is relevant in the context of present discussions about making amendments to the Academic Annex).

To avoid individuals with more than four years service and one contract extension working on the assumption that their post is open-ended, Human Resources has written to staff concerned setting out the justification for the continuation of employment on a fixed-term basis.

A careful approach to the use of fixed term contracts has already been adopted at the recruitment stage, to ensure that the reason for a new fixed-term appointment falls under one of the circumstances for objective justification. Departments contemplating a fixed term appointment should contact Human Resources before completing the RF9. Appointment letters make clear the length and expiry date of the fixed term contract and the reason for the fixed term contract.

Departments/managers should play a role in reinforcing the management of fixed-term appointments (i.e. that the appointment is time-limited and due to expire on…) so that individuals are clear about expectations throughout the duration of the appointment.

Temporary Lecturer Appointments

A number of issues pertaining to temporary lecturer appointments have been reviewed in light of the Fixed-Term Regulations. Guidance on temporary lecturer appointments (including the LSE Fellowship scheme), advertising, conversion of fixed-term to career-track, temporary lecturers and interim review)) is available on the Recruitment website.

The type of appointment should reflect the actual duties attached to the post. Thus,

If the purpose of the fixed-term appointment is to cover teaching, the appointment should be advertised as an LSE Fellowship.
In those cases where an individual would be expected to perform the full range of academic activities – i.e. teaching, research and contribution(s) to administration, it would be appropriate to advertise a Temporary Lectureship.

The advice of Recruitment will be to use LSE Fellow appointments where a fixed-term post is intended primarily to cover the teaching duties of an absent member of academic staff.

The expectation is that appointments will normally be advertised externally to attract the best possible field of candidates.

Conversion of Fixed-term to Career Track

Staff on fixed-term contracts have a right to know about vacancies coming up in the Department and departments are advised to make sure that information about forthcoming vacancies is made available through the relevant channels.

If a career-track position comes up in the Department in the same field as a temporary lecturer, there is no legal obligation on the department to convert the temporary lecturer to the career-track appointment. However, a Department should be able to justify its decision if a temporary lecturer were to apply for a vacancy in open competition, not get the post, and argue that they have a claim as the post continues to exist.

The risk of advertising against conversion can be minimised by making clear at the time of appointment the reasons why the post is offered on a fixed-term basis – eg it was intended primarily to cover the teaching duties of an absent member of academic staff (therefore Human Resources would advise offering an LSE Fellowship).

If a career-track position comes up in the Department in a different area to that of the temporary lecturer, he/she should be made aware of the vacancy and could apply for the post in open competition.

It is also open to LSE Fellows to apply for posts that arise in the Department but there is no obligation (as with temporary lectureships) to offer a post.

Departments should note that the option of appointing someone on a fixed-term contract when a post has been advertised on a career-track basis is not viable.

There may be exceptional situations where a Department wishes to make a case for converting a temporary lecturer to a career-track appointment without open competition. In such cases, the Head of Department would be expected to make a case in writing with full justification to be considered by Human Resources – for example, if a temporary post had been advertised originally because of funding reasons rather than to cover an absent staff member.

Procedure for Approval of Extension of Temporary Lecturer Appointments

Human Resources has reviewed the existing ‘contract end’ procedure for temporary lecturers. In future, an extension of a temporary lecturer contract will not be issued without prior consultation with Recruitment regarding the reasons for the extension.

Temporary Lecturers and Interim Review

Heads of Department should also be aware of the following issues in regard to temporary lecturer appointments:

Where appropriate, temporary lecturers should be given a date for Interim Review (normally in the third year of a three year fixed-term contract). The Promotions Committee considers it important that a temporary lecturer should be able to confirm that standards were appropriate for them to pass Interim Review at LSE when applying for their next position. Individuals should be offered appropriate guidance towards meeting School expectations for passing Interim Review.
If a temporary lecturer is appointed initially for a period of one, or two, years, but the appointment is subsequently extended to three years or beyond, it will normally be the case that Interim Review will be scheduled in the third year of the temporary lecturer’s employment with the School. This places an onus on the recruiting Department/Institute/Centre to ensure that the temporary lecturer is performing the full range of academic activities – ie teaching, research and contribution(s) to School and departmental administration at a level sufficient to meet the School’s expectations for a successful Interim Review.
It follows that temporary lecturers (regardless of length of contract) should be assigned a departmental mentor and offered appropriate career development advice and guidance. Where an appointment is to terminate, Employment Relations will provide advice to the manager on possible redundancy issues.

June 2008