Fixed-term regulations: requesting confirmation of permanence

The right to a permanent contract - Regulation 8

Under Regulation 8 of the Regulations, employees have the right to regard their position as permanent if the following conditions are met:

• the employee is on at least their second contract with the same employer or the contract has been previously renewed; and
• the employee has at least four years' continuous service; and
• the use of a fixed-term contract was not justified on objective grounds.

The four years' service must be continuous with the same employer, it does not however affect your rights if you have worked in different departments or had changes to your contract in that period.

Some breaks in service may be regarded as a temporary cessation of service and not a break in contract. This will be determined on a case-by-case basis but seek advice from your LA/branch or regional office if you think this may apply to you (for example, if your contract terminates every June and a new one is issued every September).

Whether or not the use of the fixed-term contract is justified on objective grounds will be determined on a case by case basis. If UCU has made a collective agreement with your employer setting out objectively justified reasons for the use of fixed-term contracts then that will determine whether or not your post should be regarded as permanent or remain as fixed-term.

Whether or not your post is permanent after four years is a matter of fact in law - you do not have to do anything nor do the regulations require the employer to take any action.

However, if you believe that by virtue of Regulation 8 you are a permanent employee, you can request in writing from your employer a statement that your contract is no longer fixed-term and that you are now a permanent employee. Your employer must respond within 21 days of your request either:

• confirming that you are a permanent employee or
• providing a statement that your contract remains fixed-term including an explanation of any objective justification for such an assertion (Regulation 9).

If the employer asserts that your post remains fixed-term or does not reply you can apply to an employment tribunal (ET) for a declaration as to whether or not, by virtue of Regulation 8, your post is permanent. You must still be employed by the employer to apply to the ET.

The declaration from the tribunal will determine whether or not you are a permanent employee. However, the effect of such a declaration is to remove the clause in the contract that restricts the duration of the contract, eg the end date. It will not alter any other clauses in the contract and is not a legal protection against redundancy.

You should seek advice from your local UCU branch/LA before taking any action.

If, in consultation with your LA/branch, you decide to write to your employer requesting confirmation of permanence a model letter is provided below. You can also download this text of these letters here: requesting confirmation of permanence from your employer - draft letter [92kb]

Model Regulation 9 letter - requesting confirmation of permanence

Please ensure you have involved your local UCU representative before submitting this request.

To [The Director of Personnel/ Human Resources for your employer

Including full address]

From [Your full name, job title and workplace address]

Date [.........]

Dear [Insert name]

Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002

I have been employed by [name of employer] since [date employment commenced]. I am now on my [nth] contract/my contract was previously renewed on [insert date of last renewal]* (*delete as appropriate).

I do not believe that there are any objective justifications for my employment to be on a fixed-term basis.

I therefore believe that I have the right to regard my position as permanent in accordance with Regulation 8 of the above Regulations.

I am formally writing to request from my employer [name of employer] a written statement confirming that my contract is no longer fixed-term.

I would be grateful if you would provide the statement to me within the statutory 21 days defined in Regulation 9.

Yours sincerely

[...........]

cc [The UCU officer dealing with your case]

• If the employer responds setting out the objective justification for the retention of your fixed-term contract please seek advice from your LA/branch.
• If, in discussions with your local/regional representative you decide that you do not wish to pursue the case at the current time you may wish to submit a letter similar to the one below.
• It will not affect your legal position if you do, or do not, submit such a letter.

Letter rejecting objective justification provided by employer

To [The Director of Personnel/ Human Resources for your employer

Including full address]

From [Your full name, job title and workplace address]

Date [.........]

Dear [Insert name]

Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002

Thank you for your reply to my recent letter which I received on [insert date of receipt].

You stated in your letter that you believed that there was objective justification for the use of my fixed-term contract. You gave these reasons as [insert details provided by employer].

I do not accept that the reasons given amount to objective justification for the use of a fixed-term contract such that regulation 8(2)(b) is satisfied.

I hereby give notice that I reserve the right to regard the provisions in my contract that restricts the duration of my contract as having no effect and to regard my status as that of a permanent employee. I also reserve the right to apply to the Employment Tribunal for a declaration to that effect.

Yours sincerely,

[...............]

Cc UCU officer dealing with your case

• If your employer responds citing fixed-term funding as the reason for denying you a fixed-term contract, and following discussions with your local/regional representative, you may wish to refer your employer to the case of Ball v Aberdeen University in which the tribunal rejected the university's case that short term funding could automatically provide a justification for employment on a fixed term.
  
  A model letter is set out below.

Letter challenging objective justification of fixed-term funding provided by employer

To [The Director of Personnel/ Human Resources for your employer

Including full address]

From [Your full name, job title and workplace address]

Date [.........]

Dear [Insert name]

Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002

Thank you for your reply to my recent letter which I received on [insert date of receipt].

You state that the objective justification for the use of my fixed-term contract is that there is no guarantee of funding beyond the end date of my current contract.

However, I would like to draw to your attention the case of Ball v Aberdeen University taken under Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

In this case the University of Aberdeen refused Dr Ball a permanent contract under the Regulations on the grounds that his post was funded by a fixed-term research grant beyond which funding could not be guaranteed.

Dr Ball took his case to a tribunal who rejected the University of Aberdeen's case that short term funding could automatically provide a justification for employment on a fixed term.

On the facts of the case, the tribunal found that that the university could not establish objective grounds for continuing Dr Ball's employment on a fixed term basis and therefore gave a declaration that Dr Ball could consider his post as permanent.

I believe the facts of my case are very similar to those in the Ball v Aberdeen University case and I therefore do not accept that the reasons given amount to objective justification for the use of a fixed-term contract such that regulation 8(2)(b) is satisfied and I would ask you to reconsider your position in light of the Ball case.

I hope that you will be able to reconsider your position and provide confirmation that I can regard my post as permanent. In the absence of such confirmation I hereby give notice that I reserve the right to regard the provisions in my contract that restricts the duration of my contract as having no effect and to regard my status as that of a permanent employee. I also reserve the right to apply to the Employment Tribunal for a declaration to that effect. I hope such steps will not be necessary.

Yours sincerely,

[...............]

Cc UCU officer dealing with your case

• If you receive no response and following discussions with your local/regional representative, you may wish to acknowledge the employer's failure to reply by sending a further letter similar to the one below.

Letter following employer's failure to respond

To [The Director of Personnel/ Human Resources for your employer

Including full address]

From [Your full name, job title and workplace address]

Date [.........]

Dear [Insert name]

Fixed-term Employees [Prevention of Less Favourable Treatment] Regulations 2002

I have been employed by [name of employer] since [date employment commenced]. I am now on my [nth] contract/my contract was previously renewed on [insert date of last renewal]* (*delete as appropriate).

On [date] I submitted a regulation 9 letter under the above regulations requesting confirmation that my contract is no longer fixed-term .

The regulations require the employer to respond within 21 days of receipt of my letter and either

• Confirm that my post is permanent under the regulations; or
• Confirm that my post is not permanent under the regulations (i.e. objective justification).

In my case it has done neither. Therefore the university has failed to meet the requirements of regulation 9.

I therefore give notice that I reserve the right to apply to an Employment Tribunal who may consider the lack of response in any consideration of my case and infer facts from this.

Yours sincerely

[...........]

Cc UCU officer dealing with your case