Restricted movements

Rules governing the rights and status of part-time and temporary staff are tougher than you might think, warns Richard Bird.

As schools and colleges move smoothly toward the end of the autumn term it is easy to forget the summer nightmare of trying to get the right staff in place.

How do we cover that new course that doesn't need a full-timer? What can we do now that the youngsters have chosen en masse that attractive course at one of our 14-19 partners and left us with a shortfall in the budget and surplus staff? Can we ditch the part-timers?

And then there was that weak field in a key subject. Will we get a better field next year? Can we appoint just for one year and hope there will be a better field of candidates next year?

All of these situations cry out for flexibility in staffing arrangements. But how much flexibility do employers have?

Take very great care. Employment, particularly where it involves flexibility for the employer, has provided a pretty good living for many lawyers as the employment appeal tribunal and the higher courts have explored the apparently limitless ramifications of employment legislation.

The golden rule is not to improvise without discussing the matter carefully with your human resource/ personnel adviser. You need an adviser who is prudent but also robust.

There are three relevant kinds of employment relationship which give flexibility in curriculum staffing: part-time work, fixed term work and agency work. They are different and the rules which apply also vary significantly. The provisions that will apply will be those which are defined by the contract and whom that contract is with.

Sex discrimination

Part-timers, under regulations stemming from European Union directives, have the right to exactly the same terms and conditions as comparable employees. European law has also established the general principle that, since most part-time workers are female, discrimination against part-time workers is likely to count as sex discrimination (which lifts the cap on awards at tribunal). So in the face of a staffing crisis, don't assume you can solve it simply by declaring your long-serving part-time staff redundant.

A drastic change in hours may also be seen as so great a change in contract that it amounts to dismissal, so reduction in part-time hours also needs to be approached with the greatest care.

Fixed-term working is also the subject of regulations derived from EU legislation. Essentially, with fixed-term working the employment relationship will be ended by the arrival of a date specified in the contract, a specific event (for example the return of a permanent employee from maternity leave) or the completion of a specific task.

A fixed-term employee has rights to normal pay and benefits and the right to be informed of any permanent vacancy. While full redundancy rights do not exist until after two years' service, the end of a fixed-term contract is a dismissal and notice must be given.

On the other hand, extending a contract has a number of complications and should not be done casually. In particular, after 52 weeks a range of statutory protections come into effect, including protection from unfair dismissal.

Breaks of service have sometimes been used to break up what has been in reality a long-term contract into many short-term ones. The assumption has been that this manoeuvre prevents the employee acquiring rights. Judgements have eroded this principle so take care, particularly if it is assumed on both sides that the employee will return. In any case, after four years' continuous service, a fixed-term worker is deemed permanent.

Two-tier situation

What about agency workers? Except where the agency simply introduces worker and employer, or where the arrangements are clearly a sham, agency workers are employed by the agency and the employer responsibilities reside with the agency. It is only in very rare circumstances that this will not apply. Both end user and worker can terminate the arrangement simply by informing the agency.

Agency workers may have different terms and conditions from the rest of the workforce. It is this 'two-tier' situation that a recent concordat between the government, the TUC and the CBI is intended to address.

Assuming that the agreement receives EU approval, it will probably take effect in 2010 and will guarantee similar terms and conditions to regular employees for any agency worker employed for longer than 12 weeks.

The flexibility that different modes of employment offer are needed as falling rolls, mergers and increased choice in 14-19 continue to affect schools and colleges. It will be important to select the right options to achieve the necessary combination of loyalty, efficiency and flexibility within the law.