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Adam Partington

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Ask the Expert: Am I employed as a temp or a perm?

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The question

I started work for a company in January 2011 on a contract basis, working three days per week.

The contract ran out at the end of March 2012. I was then verbally offered the job on a permanent basis and I accepted. Although I asked several times, the situation was never confirmed in writing and I have not been given a contract of employment.

In August, a colleague left but, instead of replacing her, I was told that I would increase my days to four per week and take over her role as well as my own – on a temporary contract basis until 31 December.

I wasn’t even allowed to think it over, but was pressured to accept the role there and then – which I did verbally. It was made clear that, otherwise, I would be ‘surplus to requirements’.

I want to leave, but I’m not sure if I should resign (I wouldn’t be eligible for Jobseekers Allowance in that case) or if I can claim that my contract effectively ended back in March?

What is the legal position as to whether I am permanent or a temp? I have been given a temporary contract, but haven’t signed it yet…

The legal verdict

Esther Smith, partner at Thomas Eggar

If you have been working continuously since January 2011 as an employee, albeit on a temporary contract, then you will be deemed to have continuous service since that date.

Whilst the law does not regard your contract as permanent by default until you have completed four years’ continuous service on a series of fixed term contracts, the effect on your status is not really affected by whether you have a permanent or temporary label.

This is because you have protection against unfair dismissal if you are an employee with continuous service of over one year, even if you are on a temporary contract.

Therefore you have statutory protection against unfair dismissal should your employment be terminated at the end of the current temporary position.

In order to defend any claim are justify your dismissal as fair the employer would need to establish that they had a fair reason to dismiss (i.e. that they had no requirement for your services and it was a redundancy situation) and that they followed a fair procedure in terminating your employment for that reason.

If you were actually a self-employed contract for the first part of your time with the company, the position may be different but you should take specific advice on your position to be sure.

Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
 
 

Adam Partington, Solicitor, Speechly Bircham LLP

The difficulty with trying to argue that your employment ended back in March 2012 is that you verbally accepted the permanent role back then, and have presumably been paid for the work you have continued to do since then.

As to whether you are on a temporary contract now (by which I assume you mean a contract for a fixed period, rather than working for the business through a temping agency), this will depend on what you agreed with your employer.

Such terms can be agreed verbally or in writing. The terms of the “temporary contract” could help to shed light on what was agreed.

The fact that you have accepted the new arrangement and it has been running since August, will make it difficult for you to resign and claim that you were “constructively dismissed” when your employer pressured you to take on the additional duties.

In any event resigning seems not to be your preferred option because of how it might affect your entitlement to Jobseekers Allowance.

An option might be to raise a grievance about your discontent with the new arrangements and how they were forced on you, to try and engineer exit discussions. Incidentally, your employer appears to be in breach of its obligation to provide you with a statement of the terms of the permanent role you took on in March.

Furthermore, and depending on the terms and arrangements under your original contract back in January 2011, and whether there have been any subsequent breaks in your employment, even though the contract may be described as “temporary”, it could be that you have the necessary length of service to give you protection against unfair dismissal.

You may be able to make use of these factors in any negotiations. You should take specific legal advice first, however, as your approach will need to be informed by a more detailed understanding of the facts and circumstances.

Adam Partington is a solicitor at law firm, Speechly Bircham LLP.
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