The Fixed-Term Employees (Prevention of Less Favourable Treatment
Regulations) 2002 come into force today.
Marcus Rowland provides an overview
The Fixed-Term Employees (Prevention of Less Favourable Treatment)
Regulations 2002 come into force on 1 October 2002. the regulations that
prohibit the less favourable treatment of employees on fixed-term contracts
Which employees are covered by the regulations?
Unlike the regulations relating to part-time workers, these regulations only
apply to employees. Agency workers, employees on apprenticeships or government
training schemes and students on work placements of up to one year, are
specifically excluded.
The individual must also be employed on a contract for a specific term or
which terminates automatically on the completion of a specific task, or upon
the occurrence or non-occurrence of a specific event.
Who is a comparable permanent employee?
When deciding whether a fixed-term employee has been treated less
favourably, it is necessary to compare their treatment with that applied to a
comparable, permanent employee.
This is defined as an individual employed on a permanent contract by the
same employer who works or is based at the same establishment as the fixed-term
employee, and is engaged in the same or broadly similar work having regard,
where relevant, to whether they have a similar level of qualification, skills
and experience.
Are remuneration and pensions covered?
It was initially thought that the regulations would not apply to pay and
pensions on the basis that these fell outside the scope of the EC Fixed-Term
Work Directive.
However, the Government decided that the regulations will go beyond the
requirements of the directive and prohibit pay and pensions discrimination.
Therefore, a fixed-term employee will be able to bring a claim under the
regulations if he or she receives inferior terms – such as a lower rate of pay
or less generous benefits – than a comparable permanent employee unless the
employer is able to justify the difference in treatment on objective grounds.
What constitutes ‘less favourable treatment’?
The regulations provide the following specific examples of what constitutes
less favourable treatment:
– Requiring fixed-term employees to accrue a longer period of service to
qualify for benefits
– Not providing fixed-term employees with the same training and permanent
employment opportunities
Can less favourable treatment ever be justified?
Importantly, the fixed term regulations state that when questioning of
whether a fixed-term employee has been treated less favourably with regard to
any term of their contract, it is necessary to look at the package as a whole,
rather than the individual terms.
Therefore, it will be permissible to deny a fixed-term employee certain
benefits as long as the overall package is just as good.
Although this provision is sensible, there is scope for dispute over whether
the overall package is comparable, in the event that fixed-term employees are
offered different benefits to permanent employees.
Information about available vacancies
Since one of the aims is to make it easier for fixed-term employees to move
into permanent jobs, the regulations contain a provision requiring employers to
inform all fixed-term employees of ‘available vacancies’.
Key points
From 1 October 2002, unless different treatment can be justified, ensure
fixed-term employees receive:
– the same overall package as comparable permanent staff
– access to the same training and permanent employment opportunities
– information about available vacancies
Marcus Rowland is a partner at law firm Kemp Little
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