Unfair redundancy treatment of Fixed term vs permanent staff

Is this unfair selection of Fixed term employees for being placed at tisk of redundany?:

- 2 people started on a 1 year Fixed term - (Full time) contract that had an end date of 31st May 2011. The employer has given contractual notice and extended the FTC end date to July 2011.

- These 2 people are doing the same job as 4 other Full time permanent staff.(we have it it writing that the jobs were exactly the same)

- Organisation started restructure of the team in February and included the 2 Fixed Term Contract employees in the consultation process.

- Restructure resulted in the loss of 1 Full time post.

- the 4 permanent employees were "slotted in" with no requirment to be interviewed.

- the 2 FTC employees are having to be interviewed for the one FT remaining job.

- HR have been asked in writing (over 21 days ago) for the scoring criteria and the individual score for one of the FTC employees.

- HR only said in response that they "were told that the 4 staff were slotted in because their Job descriptions match to greater than 70% of the new Job description". No details of how the JD's were objectively compared.

- HR also said " it is not true to say that there has been any difference in treatment"
but provided no details of the scoring mechanism nor the individual's score that was requested.


Questions:

Technically speaking, as the Fixed term contract initially was for exactly 1 calendar year only, would they be considered as having been employed for more than a year and therefore are entitled not to be treated differently during the redundancy process compared to permanent staff?

As HR have not responded adequately, ie have not provided the details of the scoring mechanism or the individual score as requested.... what happens next?
HR have been asked again to provide the information but have not yet indicated that they will entertain the request.

Is it a case of bringing a grievance or appeal to the employer against unfair selection?

Will the FTC employee who is not appointed after interview, have a case for unfair dismissal on the grounds that they were treated less favourably in the selection for the at risk of redundancy? Based on the fact that the employer has not provided the detail of how they objectively assessed the posts?

Presumeably and equally they could not now change their side of the case and say that they decided only to consider the Fixed term employees , eg Last In First out?

Hope that makes sense?

Many thanks in advance

Hmmm. I had to give this one some thought. The right not to be treated less favourably is not absolute, and I believe that the employer can use an objective justification to explain their actions. In the first instance, I see no evidence from the post that there was a redundancy situation. There was a restructure and the FTC staff were included in the consultations about this. But no staff members were put at risk and there were no proposals to make anyone redundant. Quite the contrary - there was a proposal to increase the number of staff employed. If nobody was put at risk of redundancy then the 4 permanant staff members must be slotted into the new structure because to do otherwise would be an unfair dismissal. In other words, in effect, as far as their positions are concerned, nothing at all has changed because there was never any risk of redundancy. Which would still leave the two FTC's employed on the same basis as previously, except for the fact that there is another post now and so they have the right not to be made redundant (which the ending of a FTC is) if it is avoidable, so the employer has renewed the contracts for a short period to allow them to compete for the new post. The employer must also try to identify a suitable alternative vacancy for the unsuccessful candidate because they are otherwise going to be redundant. But there was never a "right" to be considered for the 4 posts because there was no redundancy scenario at all except for the ending of the FTC's - these are the only posts that are being made redundant, and only one of them will actually be made redundant. The fact that there was never any intention of making anyone redundant as a result of the restructure means that you are not being treated less favourably. Your circumstances arise from the fact that you are both on FTC's which are subject to an end date - and the contracts are being terminated for that reason, not because there was ever any right to compete against permanant members of staff for their existing jobs.

Thank you for your time and the swift reply.
If I could just ask a supplementary question to be sure I understand what you have explained.

Yes, my understanding is that the employer can (and probably does have an objective justification), and my query is surrounding how far they can be required to let the employees know how they arrived at their decision and provide the evidence that the Objective assessment took place.


The proposal was and is to reduce the number of staff employed. They are going down from 6.0 Full Time Equivalent down to 5.0 FTE. Thus one of the existing posts is being deleted. They have confirmed that this is the case. The management have dictated that where there were 6 of us doing the same job, that has to be reduced to 5.

My question is, shouldn't all 6 of us have been subjected to the interview process and our FTC employment status should not have been a factor UNLESS they had clearly stated that they objectively justified the decision to only consider the Fixed term employees to be interviewed for the remaining 1.0 fte post.


The consultation and subsequent application document states:

"Depending on the outcome of the selection process some members of staff may be at risk of redundancy." The 2 Fixed term employees are the ones named in the document as being in the selection pool as having to apply for the remaining 1.0 fte post.

We know there is only 1 Job now left that 2 FTC employees are being asked to apply for. To me, that means that one of us will be made redundant from the job we are currently doing. And I can't get my head around why the permanent staff weren't subjected to the same interview process?

I am sorry if this more confusing than my first post, but would be very grateful if you have any further comment?

This one is complicated - so I can see why you are struggling with it. And to be fair, I am working on the details you are providing - for you to be sure it would require legal advice, because I cannot read all the documents or question you properly!

As I said initially - the devil is often in the detail and on line it is hard to know all the ins and outs. So I am having to guess what is happening in some instances by joining the dots, and this isn't ideal. Perhaps a better starting place would be to ask HR the correct question - because it would seem that you asked for scoring mechanisms when none were used because the other staff were never at risk! Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, Section 5, you have the right to ask for an explanation of the objective justification. So make your argument and ask for their explanation. Then come back with that and we will see what it says.

An update to this situation and any further advice would be hugely appreciated and gratefully received.

The Fixed term contract employees are now scheduled to attend interviews for the remaining vacant post.

1st question: One of these employees was on a higher salary point scale than the other. If the higher paid one is appointed to a permanent , open ended contract ( ie no longer on a fixed term basis)..is the employer obliged to pay the same rate of pay, ie salary protection?Considering that, we beleive the intention is that the new contract will start the day after the end date of the fixed term contract. ie no break in continuous service. (Continous paid service is now over 12 calendar months.).


2nd question
HR have repeatedly said that the" vacancy is 1.0 fte but this does not mean only one person". We are effectively going into an interview where we are not at all clear what the terms are. ie we dont know if we are being interviewed for a Full time post or part of a fulltime post. It just doesn't seem logical and is most unusual in my working experience that the interviews are being conducted on this basis.

For example, one of us is absoutley adamant that they would not take a part time postion. And had it been advertised as a part time role they would not have entered into the application process.

Your thoughts and any steering to what they may attemping to do would be most helpful.

Sorry, the word NECESSARILY is key.

I appreciate that you may not have come across this system before, but it is, as I said, common in the public sector and is excellent practice. It gets away from consdiering that posts can only be done on a full-time basis simply because full-time hours exist, and sends a message to candidates that they can apply based on their skills and experience and what they have to offer, rather than whether they can work full-time or not.

Thank you very very much!
That is very clear to me now and in many ways far more reasuring than I had anticipated!

Just a shame, that the employer and the HR dept couldn't have been as succinct and clear in their explanations to us as to what they meant.

Thanks again much appreciated