Permanent contract to fixed term contract: Is it legal?

Hi,

My government employer (approx 700 employees) has had a recent restructuring, resulting in many of us having to internally re-apply for our existing jobs. We went through a consultation period and then interview process. The posts in our dept affected 6 permanent staff and 2 fixed-term staff.

As a result of the interview process i was told that I was unsucessful in securing my permanent (full-time) position (which i held for 9 years) and instead have been offered a 12 month fixed-term (full-time) contract instead, doing the same job. Basically, in a contractual sense, one of the fixed-term employees has been offered my position and I have been offered their position, even though I was the most experienced and qualified candidate on the interview shortlist. I have yet to receive official feedback from my employer as to why this has occured, but was told that during the selection was based purely on what was said at the interview and not on candidate qualifications or experience.

I have a few questions regarding the above, which I'd really appreciate having answered, to give me some guidance.

1) Is it legal for my employer to move me onto a fixed term contract when the post has not been made redundant?
2) Does this change qualify for a substantial change in contract, even if the nature of the post remains the same?
3) If i accept this fixed term contract, does it affect my pension....i.e, will my contributions be continual from my old contract.
4) Can I accept the fixed term position "under protest" if i wanted to claim unfair dismissal at the end of the fixed term contract?

Many thanks in advance.

Chris

1) Yes it is. You were unsuccessful in securing one of the "permanant" (not that the term exists in law) jobs.
2) No
3) It actually makes utterly no difference to anything. Your continuous service remains intact and you are in the same position as you would have been - there is no such thing as a permanant contract because all contracts can be terminated. It cannot therefore be permanant. Open-ended is more accurate - but employment rights etc vary little between the two these days.
4) No, you cannot - you would have to refuse the contract and I see no realistic grounds upon which you could do so and stand much of a chance at all, based on what you have said here. If you scored lower than another candidate then that is the fact, and you would only have a case if you could prove the selection unfair.

Fixed term employees have the same rights to not be made redundant on the basis that they have fixed term contracts as "permanant employees" do. Assuming that the scoring of this other employee was done fairly (and you would have to prove it wasn't) then to have done otherwise would have been unfair dismissal of the employee on the fixed term contract.

Ok, thanks for the quick response to my questions.

I just find it highly unususal that the "competence based" interview did not take into account candidate qualifications or experience, especially when some of these qualifications are a legal requirement to conduct the job. Doesn't this merely render the entire interview process scoring system subjective (believing whatever the candidate tells you at interview), rather than objective (based on the candidates proven skills and ability)?

With regards to the interview techniques used; Two of the interview candidates (neither of them previously fixed term employees) were interviewed in a completely different way to the rest of the candidates. One via video conferencing which I feel is acceptable, as the response to interview questioning is dynamic. However, the other candidate was allowed to complete a paper based interview as she was on long term sickness and about to enter maternity leave. Personally, is this not unfair as the candidate was unmonitored and given plenty to time to reflect on questioning before responding in writing?...hardly a level playing field I feel.

I really am sorry but you are on a hiding to nothing with that. Long term sickness and pregnant - that is screaming an employers responsibility to make reasonable adjustments. if the employer didn't it certainly wouldn't be a leval playing field. The test of objective is not what you think. The test is that the same criteria and process are adopted, all things being euqal. So all candidates are traeted the same way, except where there is a legal requirment to make adaptations. If you are alleging that somebody lied and gave false information at interview, then you should say so. But what you are describing here is far from "highly unusual" - it is in fact a common selection method.

But you keep faxating on the fixed term contracts. Fixed term contracts are entirely irrelevant - forget them. In law an employee on a fixed term contract must not be treated any differently from any other employee. So what kind of contract somebody was on does not matter.

You say that you have not got the official feedback on your scoring - that is the only thing that matters.

Hi SarEI,

I only mentioned the "Fixed-Term" point in the previous email to actually discount the relevance of it towards the points raised in that particular email, so I would assure you that it is not a fixation. I merely mentioned it in my first post as many people in my workplace are in the same position as myself and I've heard so many of them cry "Its illegal what they're doing! They can't replace permanent, with fixed term workers." I just wanted to ask the question to someone like yourself who was knowledgeable and unbaised and could provide a definitive answer from a legal perspective...like you have here and i thank you for that.

With regards to many employees in the dept have already raised objections about the afore mentioned employee lying about her qualifications. Unfortunately, the job description has the catch all '...or relevant industry experience' and that is a lot harder to prove as a falsification.

I would contest the "all things being equal" point. If one candidate absent from the workplace was able to conduct video conferencing (and he was halfway accross the world) as their method of interview, then why couldn't the other aforementioned member of staff do the same? She may have been off sick, but its never stopped her from being on Facebook every night (something that can be documented as factual). Hence, if she is able to sit in front of a computer, so why wasn't she made to conduct a video conference interview like the other candidate? Surely, an asynchronous written interview is not comparitive to a dynamic oral interview (video or physically based).

As a footnote, I really wish I could share your belief in the "scoring being the only thing that matters" as in an ideal world it would have made things much simpler and clearer for me in terms of fair selection. However, in this particular case, that scoring system is rendered subjective when parties on the interview panel have a vested personal interest in who stays and who goes within the dept. (apologies; personal but accurate gripe here).

I will receive my official feedback on tuesday, but given that the job decision has already been made, I don't feel that it will provide any me with clarity or valid justification as to the reasoning of the decision.

Thanks again for your help and advice....esp on a Saturday evening.

Chris.

I don't take that as a gripe. I am perfectly well aware that the outcome of any redundancy process will reflect what the employer wants to happen. The problem is proving it. And that is something you are discovering is not quite so easy to do.

Your colleague may be on facebook every night - but a social networking site is somewhat different from a formal interview. But the bottom line is - it is a brave employer who makes a woman who is prgeant and off on long term sickness, redundant. The fact is that things are not equal - she is pregnant and sick, and you are not. In law what they have done is a perfectly acceptable adjustment, and no tribunal would say otherwise.

I am sorry, but as I said, what you consider objective and what the law does, like fair and unfair, are very different things.

You've made the hard decision I have to make on Tuesday a lot simpler now and that has been a great help, so
I thank you for that.
Obviously the overall situation has been been far more complex (i.e, office politics, etc...) than what has been written here, but what I needed was an unbiased and factual (by the law) response concerning the facts provided and you have given that with great detail.....just wished life was fairer, but we can all dream. lol

Thanks again for our time and advice.

Chris.