When is a fixed term a genuine fixed term?
Most people get engaged with the intention of getting married within the near future. So you can imagine the frustration of the party to the relationship whose request to set a date falls on deaf ears and consequently has to endure “the long engagement”.
Most people get engaged with the intention of getting married within the near future. So you can imagine the frustration of the party to the relationship whose request to set a date falls on deaf ears and consequently has to endure "the long engagement".
That frustration is often identical to the employee who finds him or herself employed on successive fixed term contracts. Frustration boils over into a personal grievance and the employer is left wondering why his employment agreement wasn't good enough to get it out of hot water.
The problem with fixed term agreements
In general terms, fixed term agreements are only permissible where:1. The employer has a genuine reason for the fixed term based upon reasonable grounds;
2. Where written notice of that reason is given to the employee.
That of course begs the question of what amounts to a genuine reason based upon reasonable grounds. May employers have used such reasons as funding uncertainties and the need to move staff to suit changing needs as reasons for fixed term arrangements. Whilst such reasons may be genuine, are they based upon reasonable grounds?
It's unreasonable to keep a person hanging on
It is quite sensible for a couple to get engaged and decide to put off the wedding to save some money until they can have the wedding of their dreams. Let's call it funding uncertainty. But once that monetary threshold has been reached, then at least one person in the relationship is going to expect a date to be set fairly quickly. For the other party to use that as an excuse would be unreasonable.The danger of using fixed term agreements is that your genuine reason could be tested at any time. What was a genuine reason the first time you entered into that fixed tem contract may not be the second or third time around. Similarly, if the reason is the need to juggle staff, does that reason still exist at the end of the term? If not, then a new fixed term agreement would be inappropriate. The point is that circumstances can change and the Authority will look suspiciously on fixed term agreements which are renewed term on term.
Can you justify your reason?
Most people have a knack for knowing when they are being fobbed off. So when you are asked to set a date for the wedding and want to wait, make sure you can elaborate on the reason why.The Employment Relations Act stipulates that you must set out the reason for a fixed term in writing to the employees. Whatever reason you give, expect it to hold up to scrutiny by the Authority. It won't take your word for it and will expect you to justify it for each employee concerned. For example, giving the same reason to two different employees in different circumstances may be good for one but not for both. Each reason needs to be tailored to the employee and you need to be able to support it with evidence if you are ever challenged about it.
What is a genuine reason?
So the answer to the question "What amounts to a genuine reason" is simply this: it depends on the circumstances. Each case will be examined on its own facts. However there are some tell tale signs that an alleged reason may not be genuine.1. The agreement gets renewed term after term;
2.Multiple employees are subject to the same agreement stating the same reason.
And, one reason you can't use a fixed term is to trial someone for employment. But, with the new 90 day trial period becoming law on 1 March 2009, that trap will be avoided for businesses with 19 or fewer staff.
"
Linda Guirey - Linda Guirey
