Advice to HE branches/LAs on negotiating on fixed-term and hourly-paid issues

Back in July 2006, the Higher Education Committee agreed the following policy objectives in relation to fixed-term and hourly-paid members:

• to secure the offer of conversion to permanent fractional (pro-rata) or full-time posts (on the national contract for post-92 academic staff and on the same conditions of service as salaried academic and related staff for pre-92 academic and related staff) for all hourly-paid staff
• to resist the imposition of zero hours and unfavourable 'variable hours' contracts
• to transfer fixed-term staff to permanent contracts and encourage the use of permanent contracts as the norm within the sector
• to recruit and organise fixed-term and hourly-paid staff.

These objectives also form a major part of the UCU's Stamp Out Casual Contracts anti-casualisation campaign.

There are two major initiatives which will assist the UCU in securing those objectives within Higher Education:

• the implementation of the Framework Agreement, and
• the full implementation of the Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations.

This briefing note sets out guidance to LAs and branches on achieving these objectives taking into account the different circumstances within different LAs and branches.

The Framework Agreement

The Framework Agreement does not mention fixed-term contracts per se but the application of the Framework Agreement to all staff (including hourly paid staff) and therefore the need to assimilate hourly paid staff to the new pay and grading structures, provides the opportunity to negotiate not only fractional (or full time), but permanent contracts for such staff.

In post-92 institutions the UCU will not ratify any agreement to implement the Framework Agreement until agreement has been reached on the assimilation of hourly-paid lecturers (HPLs). Such an agreement will include a guarantee that no HPLs are assimilated below the academic 2 grade and at a pay point below point 30. Incremental progression to the top of the grade must also be guaranteed subsequent to assimilation. Once HPL staff reach the maximum incremental point within grade Ac2 they should have equal progression entitlements to progress to the Ac3 grade in the same way as non hourly-paid lecturing staff.

In pre-92 institutions no agreement will be signed off until the situation of hourly-paid staff has been resolved i.e. all hourly paid staff must be transferred to the new pay and grading structures alongside other staff. This means there must be a commitment to place hourly-paid staff on the new grading structure by reference to the role analysis/job matching process that is applied to other, salaried, staff and for hourly-paid staff to benefit from the same effective date of implementation as other groups of staff. All hourly paid lecturers should assimilate to at least Ac2.

In all institutions, negotiations on the transfer of hourly-paid staff to the new pay and grading structures should include negotiations of the transfer to fractional or full-time permanent contracts.

The implementation of the Framework Agreement can therefore be used to negotiate for the transfer of hourly-paid staff to appropriate fractional or full-time permanent contracts.

It will not however address the issue of fixed-term contracts used for other groups of staff such as research and academic-related staff. For such staff, the full implementation of the Fixed-term regulations provides the opportunity to challenge current practices.

The fixed-term regulations

The fixed-term regulations which came into effect in October 2002, make less favourable treatment of fixed-term employees unlawful and restrict the successive use of fixed-term contracts after 4 years.

Since 10 July 2006 fixed-term staff who are on at least their second contract (or who have had their contract previously renewed) and who have at least 4 years' continuous service have been able to regard their post as permanent unless the employer can objectively justify the use of a fixed-term contract.

Submission of 'Regulation 9' letters

Although members do not need to take any action under the regulations for their contract to be regarded as permanent after 4 years, there is provision within the regulations for an employee to write to the employer asking for confirmation of permanence (regulation 9). The employers have 21 days in which to reply. Many members may have already submitted such letters or wish to do so in the future.

The use of regulation 9 letters will be least beneficial where individual members are left to submit letters and deal with responses individually.

As a branch you should be considering how you may be able to use the regulation 9 letters in a collective way to put pressure of the employer, eg to move staff to permanent contracts (or at least those with 4 years service). The threat of the mass submission of regulation 9 letters may force a reluctant employer to the negotiating table. LAs and branches should also be aware that such a threat could also provoke some employers into threatening to impose zero or minimum hours contracts (for hourly-paid staff). LAs/branches will need to decide, in consultation with their regional office, how best to use the legislative provisions to secure the desired objectives.

It is important that any submission of regulation 9 letters is co-ordinated through the LA/branch and employer responses fed through to the regional office so that we can keep up to date with employer reactions nationally and disseminate good, and highlight bad, practice.

A model regulation 9 letter can be downloaded here. [92kb]

If members receive responses back, denying permanence and giving reasons, these need to be fed back to the regional office with an indication of the member's views on how they wish to proceed.

There are a number of responses and reactions to such a reply from the employer:

• It may be appropriate to take up the matter collectively - especially if it affects more than one member of staff. You may be able to change the employer's position through negotiation or collective action.
• The member may disagree with the decision but not wish to pursue their case at the current time. In such cases advise the member to submit a follow-up letter to the employer reserving their right to:
  • regard their post as permanent and
  • seek a declaration from the employment tribunal to that effect.
  A model for this purpose can be downloaded here. [92kb]

• The member may wish to challenge the employer's response and pursue their case to an employment tribunal for a declaration. In such cases seek advice from your regional office.

Keeping members informed and involved

Of course, if you are undertaking any of these activities it is important to keep your fixed-term and hourly-paid members informed and involved. It is equally important to let potential members know what you are doing. Activity in this area is a powerful recruitment tool, so make sure you publicise your work as much as possible.

Please keep in contact with your regional office on any developments and let us know if there are other resources or materials that you would find useful.

HE HQ contact: Jane Thompson