temporary, zero hours and probation - hr and employment law in education conference 2015, vicky...

Do’s and don’ts

Vicky Berry - HR Consultant

HR and employment conference for

school leaders 2015

Temporary, zero hours contracts and

probation periods

#BJHR15

Zero hours contracts

Fixed term contracts

Probation periods

secondment

agency

term

time

only

permanent fixed term

annualised

hours

apprentice

temporary

so many

choices..

zero

hours

rolling

minimum

hours

casual

part

time

full time

job share

secondment

agency

term

time

only

permanent fixed term

annualised

hours

apprentice

temporary

we shall

focus on

zero

hours

rolling

minimum

hours

casual

part

time

full time

job share

.

What do we mean?

• zero hours / casual contract

• fixed term contract / temporary.

Worker or employee?

Employee;

• a contract

• work must be done by that person

• mutuality

• control

• other terms consistent with employment.

It’s the reality of the relationship that determines

whether someone is a worker or an employee

Zero hours contracts

What is a zero hours contract?

• a contract for casual working

• employer does not guarantee to provide work

• worker is expected to be available for work if needed

• worker is paid for the actual work that is done.

Wise words

‘Life is like a box of

chocolates. You never know

what you're gonna get’

Zero hours

Four key areas for concern

• exclusivity clauses

• lack of transparency

• uncertainty of earnings

• balance of power.

Coming soon…

• Small Business, Enterprise and Employment Bill

2014-2015 (SBEEB)

• will prohibit exclusivity clauses.

To use or not to use?

• who uses casual staff?

• what types of role do you use them for?

• do you use zero hours contracts?

• do you expect the worker to accept the work you offer?

Getting it wrong

Getting it right

Do’s and don’ts

Do

• use them where there is a genuine need for a casual

arrangement

• be clear with workers that they can turn work down

• review the arrangements regularly.

Don’t

• use exclusivity clauses

• leave people on them for years and years

• assume that they can be ended without notice

• allow a mutuality of obligation to become established.

Fixed term contracts

What are they?

• contracts for employment that are for limited

periods of time

• end could be specified in the contract or be

triggered by a specified event.

Uses

• maternity cover

• sickness absence cover

• cover for other types of employee absence

• specific external funding which may not be renewed

(SEN)

• possibility or restructuring or redundancy in the near

future

• special project

• need for a particular post is not clear so trial period is

used before committing to a permanent position.

Successive use

Fixed term employees who have been continuously

employed for:

• two years have the right to not be unfairly dismissed

and will be entitled to a redundancy payment if made

redundant

• four years are deemed to be permanent employees.

Ending the contract

End date is;

a. specified in contract

b. triggered by a particular event

c. earlier than specified date

d. due to redundancy.

If contract is not renewed this is a dismissal.

Ending a fixed term contract

Capability

Conduct

Redundancy Statutory restriction

Some other substantial

reason

Saying goodbye

“So long, farewell, auf

Wiedersehen, goodbye”

What does a fair process look like?

invite meeting decision appeal contract

reason in writing

right to be

accompanied

employee

can present

information

make decision

after listening

confirm

in writing

give correct

notice

heard by

a different

person

(people)

Risks

• unfair dismissal

• breach of contract

• discrimination

• redundancy pay.

Dos and don’ts

Do

• think carefully at the outset when drafting the contract:

• why is it a fixed term?

• what is the notice period?

• if you are renewing it, consider why and confirm in writing.

Don’t

• let contracts drift

• use a fixed term contract if the need is a permanent one

• assume that the contract can just expire.

Probation periods

What is it?

A period at the start of an employment relationship

during which the employee is assessed by their employer

and following which time they are notified as to whether

their appointment will be made permanent.

What do I need?

• contract

• procedure

• review process.

Things to consider

• length of probation

• reviewer

• frequency of reviews

• standards and expectations

• information that you will use to assess.

Things to consider

• performance in role

• conduct, behaviour and attitude

• attendance.

Keeping the employee informed

• make sure employee knows that job is subject to

probation

• make sure you have communicated your expectations

• ensure that employee knows what the process is

• provide regular feedback during the probation period

• keep records of meetings and provide copies to

employee.

Confirm, extend or end?

The purpose of the probation period is to assess suitability for

the role. At some point you will need to decide whether to:

1. confirm employment

2. extend the probation period

3. end employment.

Confirm, extend or end?

Jeremy has been employed by you for three months as an Attendance

Officer.

He has had experience in a previous school. Jeremy is very enthusiastic,

but does not carry out his role in the way you would like him to. He

doesn’t follow the systems that are in place in the school and his

colleagues have complained that this is causing problems. To date

Jeremy has made little impact on improving the attendance figures. In

addition he is often late for work and has had two weeks absence

already.

You are due to review his probation, how would you approach this and

would you confirm, extend or end?

Absence during probation

This could be due to:

• sickness

• disability

• maternity or adoption leave.

Consider each case on its facts. Don’t automatically

regard the attendance as unsatisfactory

Consider an extension to the probation period.

Dos and don’ts

Do

• use probation periods

• have relevant clause in the contract

• give regular and constructive feedback

• ensure that you make a decision before the end of the

period

• extend if necessary.

Don’t

• let period expire without a decision

• allow periods to extend over two years.

www.education-advisors.com

Talk to us…

Vicky Berry | 0115 976 6285

vicky.berry@brownejacobson.com

Please note

The information contained in these notes is based on the position at

October 2015. It does, of course, only represent a summary of the

subject matter covered and is not intended to be a substitute for

detailed advice. If you would like to discuss any of the matters

covered in further detail, our team would be happy to do so.

© Browne Jacobson LLP 2015. Browne Jacobson LLP is a limited

liability partnership.