Replacing an employee with another

haz

If an employer has a post occupied by an individual on a fixed-term contract, is there any law preventing the employer from letting that person go at the end of the fixed term in order to employ someone else in the same post?

Even in the Protection of Employees (Fixed-term Workers) Act 2003 I cannot find a specific prohibition on continuously replacing employees within what is effectively the same post. At the end of the third contract / year, the employee appears to have no right to continue in the post, whereas the employer is free to employ someone else.

twogunkid

Call into the office of a union that represent the trade -profession in which you are engaged.They are generally very helpful and if they cant be of direct help they will at least give you good advice.Bring along any and all relevant documentation notification of termination--original advertising the post --re advertising the post when your agreement ended etc Contracts signed etc Good luck

Tom Young

My take is that there is a very fine line on this question. Making someone redundant generally means that the title, job and functions is no longer a requirement for the business. While it is not something that may appear as a specific law, on the face of things a redundancy that results in a replacement of a function identical to that of the post made redundant could, in my view, and depending on the terms of the termination settlement be actionable.

One would need to look at constructive dismissal cased etc.

haz

Tom Young wrote:

One would need to look at constructive dismissal cased etc.

As far as I read the Unfair Dismissals Acts and Protection of Employees (Fixed Term Workers) Act, the employer could let an existing employee go and find a replacement in the exact same post / title / function / duties. The only way I can read this differently is if the expiry of a fixed term contract, where the post continues, could be construed as a dismissal. If the termination was a dismissal then there would be a burden on the employer to justify its fairness.

Obviously any employer would be wise not to renew a substantially similar post in these circumstances because litigation could be messy, but I can't find a clear cut prohibition. There are a couple of weakly unionised employment areas where this practice is very common.

johnnyskeleton

The Aer Lingus Cabin Crew, Henderson and Prasad cases deal with this issue.

Basically, my understanding is that there is no obligation to renew a contract, even if there is lots of work there. However, the employer must inform the outgoing fixted term employee that there is a new post available, he must allow that employee to apply, and as is always the case, the most qualified applicant must get the job. There are also some circumstances where non renewal is not appropriate. The Labour court likes to look at the purpose behind the legislation. In relation to the fixed term work legislation, the purpose is to prevent employers from denying their staff the rights they would have if they were permanent. It might be the case that if the LC was satisfied that an employer was doing this to circumvent the legislation (rather than because of objective grounds for so doing) they may award compensation to a group of such employees. That said, I don't think that where a person's contract is not renewed they are entitled to compensation. An award for such a breach would be more to punish the employer than to compensate the employee. If you want to read more fixed time work cases you can see most of them here. If there are any interesting cases there let us know.

There is also a crazy (IMO) case to the effect that, even though the Unfair dismissals act (as amended) states that it doesn't apply to fixed term contracts, unless this is expressly stated in the contract that UD doesn't apply, then it might apply. So an employer can exclude UD, but they must specifically do so.

haz

johnnyskeleton wrote:

there is no obligation to renew a contract, even if there is lots of work there

What about the instance where the employee is not renewed and another person is contracted to fill the same post (same title / function / duties), with the former employee prevented from continuing in the post?

As I read the Unfair Dismissals Acts, termination by expiry of a fixed term is a dismissal ("dismissal", in relation to an employee, means .... ( c ) the expiration of a contract of employment for a fixed term without its being renewed under the same contract....) and the employer must be capable of providing one of the four justifications for dismissal given in section 6(4). If the post is refilled then surely redundancy can not be offered in justification? It is surely not possible to continually recruit new staff into the same post?

johnnyskeleton

haz wrote:

What about the instance where the employee is not renewed and another person is contracted to fill the same post (same title / function / duties), with the former employee prevented from continuing in the post?

johnnyskeleton wrote:

the employer must inform the outgoing fixted term employee that there is a new post available, he must allow that employee to apply, and as is always the case, the most qualified applicant must get the job. There are also some circumstances where non renewal is not appropriate.

haz wrote:

As I read the Unfair Dismissals Acts, termination by expiry of a fixed term is a dismissal ("dismissal", in relation to an employee, means .... ( c ) the expiration of a contract of employment for a fixed term without its being renewed under the same contract....) and the employer must be capable of providing one of the four justifications for dismissal given in section 6(4).

johnnyskeleton wrote:

the Unfair dismissals act (as amended) states that it doesn't apply to fixed term contracts

s2(2)(b) as amended by s.3 of the 1993 act. it's more subtle than simply not applying, but provided the written contract states that UD legislation is exculded from the fixed term it is.

haz wrote:

If the post is refilled then surely redundancy can not be offered in justification? It is surely not possible to continually recruit new staff into the same post?

johnnyskeleton wrote:

the employer must inform the outgoing fixted term employee that there is a new post available, he must allow that employee to apply, and as is always the case, the most qualified applicant must get the job. There are also some circumstances where non renewal is not appropriate.

Victor

Isn't their an EU case about systemattic fixed-term contracts? Essentially if you constantly employee the same people on short (up to one year) contracts, they gain rights.

haz

Victor wrote:

Isn't their an EU case about systematic fixed-term contracts? Essentially if you constantly employee the same people on short (up to one year) contracts, they gain rights.

There is a raft of related cases going to the ECJ (including a very relevant specific instance) that may be heard within the decade....

In the meantime, if the employer was employing the same person on successive fixed terms in full accordance with the provisions of the Fixed Term Workers legislation, but at the expiry of their third term allowed their contract to expire and took on a new employee in their first year? Is the employer's provision (or denial) of information about posts and access (or obstruction) to application procedures the most pertinent event?

johnnyskeleton wrote:

the Unfair dismissals act (as amended) states that it doesn't apply to fixed term contracts

s2(2)(b) as amended by s.3 of the 1993 act. it's more subtle than simply not applying, but provided the written contract states that UD legislation is exculded from the fixed term it is.

I imagine the view would be formed that the exclusion of UD was for the purpose of evading obligations under UD legislation and for no other purpose.

It seems to me that the Fixed Term Workers Act was intended to specifically prevent this sort of limitation on continued employment, but there is a gaping hole that can only be plugged with strong unionisation or expensive legal representation.

johnnyskeleton

haz wrote:

I imagine the view would be formed that the exclusion of UD was for the purpose of evading obligations under UD legislation and for no other purpose.

It seems to me that the Fixed Term Workers Act was intended to specifically prevent this sort of limitation on continued employment, but there is a gaping hole that can only be plugged with strong unionisation or expensive legal representation.

It is a new area, and as such there is a large element of uncertainty. If you want a certain answer, you must seek legal advice.

The exclusion of UD is to avoid a person being employed on a fixed term contract and then claiming it is an unfair dismissal when it is not renewed.

Basically it is not always easy to get rid of a FT employee. However, being hired on one FT contract does not guarantee a further one.

If I am a FT employee and am no good at my job, my employer can allow the term to lapse, advertise a new post, inform me of the new post, and if a more qualified person comes along, then that other person gets the job and that's fine.

If a less qualified person is chosen purely so that the employer can avoid the legislation, then that is a problem, and at that stage I might have a case under the Employment Equality Act or the Unfair Dismissals Act.

I think that if it were not possible for a FT contract to lapse normally, it would basically be impossible for an employer to take someone on as a FT employee.

haz

johnnyskeleton wrote:

I think that if it were not possible for a FT contract to lapse normally, it would basically be impossible for an employer to take someone on as a FT employee.

Yes, of course, and the whole issue of the Protection of Fixed Term Workers is to define reasonable and unreasonable uses of fixed term contracts. Fully accepting that a fixed term is appropriate, the issue I am asking about is replacing one person with another in a continuing post, i.e. using expiry of fixed terms to reselect staff without open competition. To use an entirely hypothetical circumstance, in which the plaintiff would certainly have legal representation:

An employee performs satisfactorily in successive fixed terms and is assured verbally of continued employment and probable permanency (which would in any case be a requirement under the new Act). However the employer does not renew that employee, but does employ another person in the same capacity on a permanent basis. At no point is the existing employee advised of the possibility of, or invited to apply for, further employment.

I recall many years ago that it became effectively impossible to repeatedly hire new staff in the retail industries, where supermarkets had routinely restaffed with school leavers each summer in order to evade normal employment obligations. I assume that I am recalling the introduction of the Unfair Dismissals Act 1977, defining the expiry of a fixed term as a "dismissal". Such a dismissal could not be a redundancy if the same checkout was operated for the same purpose the very next day.

johnnyskeleton

haz wrote:

An employee performs satisfactorily in successive fixed terms and is assured verbally of continued employment and probable permanency (which would in any case be a requirement under the new Act). However the employer does not renew that employee, but does employ another person in the same capacity on a permanent basis. At no point is the existing employee advised of the possibility of, or invited to apply for, further employment.

see Henderson

If an employer verbally assures an employee of continued employment, such as to amount to an offer, and the employee expressly or implicitly accepts this offer, then I would imagine there is a new employment contract formed between the parties.

Notwithstanding that,

johnnyskeleton wrote:

the employer must inform the outgoing fixted term employee that there is a new post available, he must allow that employee to apply, and as is always the case, the most qualified applicant must get the job

johnnyskeleton wrote:

If a less qualified person is chosen purely so that the employer can avoid the legislation, then that is a problem

If you don't have access to www.irishstatutebook.ie, the relevant section is:

Protection of Employees (Fixed Term Work) Act, 2003 wrote:

10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

haz wrote:

I recall many years ago that it became effectively impossible to repeatedly hire new staff in the retail industries, where supermarkets had routinely restaffed with school leavers each summer in order to evade normal employment obligations. I assume that I am recalling the introduction of the Unfair Dismissals Act 1977, defining the expiry of a fixed term as a "dismissal". Such a dismissal could not be a redundancy if the same checkout was operated for the same purpose the very next day.

Please read the Unfair Dismissals Act, 1977 and the Unfair Dismissals (Amendment) Act 1993. The expiry of a fixed term is defined as a dismissal. However, s.2(2) of UD 1977 states:

(2) This Act shall not apply in relation to—

( a ) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or
( b ) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

s3 of the UD(A), 1993 inserts after (b) above:

Provided that where, following dismissal consisting only of the expiry of the term of a contract of employment such as aforesaid ('the prior contract') without the term being renewed under the contract or the cesser of the purpose of the contract—
(i) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment such as aforesaid made between the employer and the employee ('the subsequent contract') and the nature of the employment is the same as or similar to that of the employment under the prior contract,
(ii) the employee is dismissed from the employment,
(iii) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and
(iv) in the opinion of the rights commissioner, the Tribunal or the Circuit Court, as the case may be, the entry by the employer into the subsequent contract was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act—
then—
(I) this Act shall, subject to the other provisions thereof, apply to the dismissal, and
(II) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.

In your hypothetical example, it is not the case that "the dismissal consisted only of the expiry of the term without its being renewed under the said contract" (sec2(b)) because there was an express renewal of the fixed term, a suggestion of permanancy, and then the employer renaged on the contract. It would also be a different situation if it was not the first renewal. However, I don't think, in your example, it would be an unfair dismissal so much as a breach of contract.

In my experience, employers are not all that keen on a high turnover of staff. It involves expensive HR work, advertising, training, and new staff are generally not as good as old staff. At the same time, they would be unwilling to give people permanent positions in case that person turned out to be less than satisfactory without being incompetent enough to fairly dismiss. The new act was brought in to prevent employers from effectively having employees on fixed term contracts even though it is intended that they have the job indefinitely.

haz

johnnyskeleton wrote:

In my experience, employers are not all that keen on a high turnover of staff. It involves expensive HR work, advertising, training, and new staff are generally not as good as old staff.

Many thanks for that incredibly comprehensive response, and all the other helpful responses.

In the real world, meanwhile, these are the HR relations that operate within large parts of the health services. Employers appear to take the view that staff are ignorant of their rights and unable to afford the financial, career reputation and psychological costs of asserting rights.