In reality, these workers will most likely be fixed term employees of your organisation because you will have arranged with them that you want them to work for you until, for example, the end of January, or until orders fall below a particular pre-designated number, along the lines of pre-Christmas rush amounts.
It is a well known fact that many employees employed to cover only a fixed period of time commonly use this type of engagement as a route into an organisation with the hope that potential full time work will be available at the end of the fixed term. This also works in the favour of the employer, who can essentially bypass any external recruitment exercise that he may usually carry out for a permanent position, and many employers do take on fixed term employees on a permanent, open ended basis at, or before, the end of the current fixed term.
Where there are more fixed term employees currently in your organisation than there are permanent positions available, you will have whittled them down until you find the most suitable one. To do this you should ensure that you adopt a fair and transparent internal recruitment procedure. The Fixed Term (Prevention of Less Favourable Treatment) Regulations 2002 provide that all of your fixed term employees are entitled to be notified of available permanent positions within your organisation. A circular email to all fixed term employees, or a notice placed somewhere where all employees have a reasonable opportunity to see it, e.g. on the staff notice board, would ensure compliance.
A transparent recruitment exercise would ideally include getting all of the fixed term employees to fill in an application form if they did not previously complete one when they joined you on the fixed term basis. Although you will have knowledge and experience of how the fixed term employees have performed in the job role for which you now require a permanent employee, there should be a conclusive paper trail for any recruitment process. There may be information on application forms previously filled in that you had forgotten about, or information on newly filled in ones that will help in your selection decision, so you should make sure that you receive one for each fixed term employee who has shown interest in a permanent position.
Short list the candidates you wish to interview on the basis of their applications, and then carry out interviews.
Having a documented selection process will help back up any disputes that may arise about your decision. It will show that you have given all candidates a fair chance and reduce the risk of claims of discrimination.
Once you have decided on your ideal applicant you will need to issue them with the correct employment documentation.
Such documentation must, by law, include information relating to the date on which employment began. Disputes can often arise with the date of commencement of employment when a period of employment was not permanent from the start – and in most cases a Tribunal would be likely to deem that the start date was the start of the fixed term period as long as there was no break in between the two periods where the employee did not work for you. Although, even in these circumstances, a Tribunal may find that there is continuous service.
The start date of employment is an extremely important factor because entitlement to a large number of employment rights is triggered upon specific periods of continuous service. For example, the right to claim unfair dismissal is available upon 1 year of service; the right to a redundancy payment becomes available after 2 years’ service; the right of an employee to take parental leave comes upon 1 year of service. Misunderstanding the start date of employment can land an employer in trouble if it leads you to not allowing an employee to take advantage of a right which is based on length of service, when they are in fact entitled to it.
It is important to remember that holiday entitlement will have begun to accrue from the time the fixed term period started and not from the time the ‘permanent’ part of the employment began. Therefore if you allow holidays to be taken only on the basis of what has been accrued at any given time during the first year of employment, as allowed by working time legislation, you must remember to include the amount that they accrued during the initial period.
In most cases, the transition from fixed term employee to permanent will not be difficult one because the basic terms and conditions of the employee’s employment, during the fixed term, should not have been any less favourable than those of a comparable permanent employee, although would have been offered on a pro rata basis.