This week, Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise on drawing up employment contracts for those staff who are employed on a temporary to permanent basis.

The question:

We have an unusual situation whereby we are employing someone on a temp to perm basis; she is joining us to cover maternity leave (expected to be six months) at the end of which time we hope (but have been certain not to promise) that we will have a permanent position for her, if all works out.

This means we have someone who is more committed to a temp position than we might otherwise expect, and we can therefore have more trust in her, whilst she has the opportunity to be trained up for, and gets first shout at, a role that she would not currently be offered based on her existing experience and qualifications.

I'm organising a six-month contract for her, but have never done this before and I'm not sure where to start. Shall I just do an amended version of my perm contract with an end date? I don't want the end date to mean, though, that the confidentiality agreement ends at that point. What should I do about holidays for her, or a probationary period?

Beth Orford

Legal advice:

Esther Smith, partner, Thomas Eggar

I would use your standard permanent contract as the basis and insert a provision, probably where the start date is confirmed, along the following lines: "It is intended that your employment will last for the period of six months, or until the employee whose maternity leave you are covering returns from work, if that is earlier. However we hope at the end of this fixed term contract to be able to offer you a permanent position, but obviously we are not in a position to confirm the situation at this time, and will discuss matters as the situation becomes clearer."

In terms of the confidentiality, this will only cease on the 'end date' if that end date is indeed the termination date. If the temporary contract is extended beyond the initial period of six months, then subject to anything different being agreed, the terms and conditions will continue to apply as set out in the original contract.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

This individual will be employed on a limited term (what we used to call a fixed term) contract. But the key point is that she is an employee, so yes you do need to give her a version of your standard terms. But there will be a difference.

The difference is that you must make it clear that it is a contract for a limited term, that it is to cover maternity leave, and that the contract will therefore end when the maternity leaver returns.

Holidays and all other benefits must be the same as for permanent staff otherwise you will be in breach of the Fixed Term Workers Regulations (a form of anti-discrimination law designed to prevent you from disadvantaging fixed term workers). Confidentiality clauses (either implied or express) usually survive the termination of employment but I would need to see the clause to comment further.

You can of course give her a probationary period but inevitably it will be quite short!

I hope that helps.

Martin can be contacted at: martin.brewer@mills-reeve.com

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