NHSScotland 'Once for Scotland' workforce policies: consultation

6. Fixed-Term Contract Policy

6.1. Aim

6.1.1. The Fixed-Term Contract policy aims to:

• Provide the framework for managing fixed-term contracts and making sure they are only used where necessary and appropriate.
• Provide employees on fixed-term contracts with equal access to development opportunities and the same or equivalent terms and conditions as employees on permanent contracts.

6.2. Scope

6.2.1. This policy applies to all employees on a fixed-term contract, including locum medical staff directly employed by NHSScotland organisations. The policy does not apply to agency workers and apprentices.

6.2.2. Employees on secondment into fixed-term posts are covered by the NHSScotland Secondment Policy [insert hyperlink NHSScotland Secondment Policy]. The Secondment Policy does not apply if a secondment has not been supported.

6.2.3. This policy complies with current legislation and meets the aims of the Public Sector Equality Duty of the Equality Act 2010.

6.3. Definitions

6.3.1. A fixed-term contract is a contract of employment where one of the following applies:

• It is for a specific period that is fixed in advance.
• It terminates on the completion of a particular task.
• It terminates upon the occurrence or non-occurrence of any other specified event.

6.3.2. Redeployment is the process of securing suitable alternative employment for an employee who is displaced or unable to continue in their current role.

6.3.3. Secondment is where an employee is transferred temporarily from their substantive post to another post. The employee is expected to return to their substantive post at the end of the agreed term of the secondment.

6.3.4. A substantive post is an employee’s main contractual post, which is normally permanent.

6.3.5. Suitable alternative employment describes the factors used to determine if a post is appropriate in a redeployment situation. The factors include the following:

• job role
• pay and benefits
• job location and hours of work
• Special Class or Mental Health Officer pension status
• employee’s skills and experience
• employee's circumstances

6.4. Roles and responsibilities

6.4.1. There is a range of standard expectations which underpin all policies. Read more about standard roles and responsibilities. In addition, the following specific responsibilities apply to this policy.

6.4.2. Manager

6.4.3. The manager should:

• Review the status of the contract on a timely basis.
• Keep the employee informed of the status of the fixed-term contract.
• Support the employee through the period of employment and signpost them to sources for permanent employment.
• Engage with the appropriate redeployment contact if the contract is not to be renewed.
• Make sure the employee receives the defined period on redeployment prior to the contract end date.

6.4.4. Employee

6.4.5. The employee should:

• Actively engage with the redeployment process where the contract is not to be renewed.
• Actively search for alternate employment opportunities where the contract is not to be renewed.

6.5. Procedure

6.5.1. NHSScotland should use permanent employment contracts wherever possible and fixed-term only where necessary and appropriate. The organisation should permanently appoint staff if permanent employment is highly likely at the end of the fixed-term period. Employees on fixed-term contracts are entitled to the same terms and conditions of employment as permanent staff. The employer should not treat them less favourably than permanent employees unless objectively justifiable.

6.5.2. Appropriate use of fixed-term contracts

6.5.3. Employers should only use fixed-term contracts as time-limited, short-term options. Employees should not usually be in non-permanent employment for more than 2 years or be subject to more than 2 renewals within one year. Fixed-term contracts may be appropriate in these situations:

• Cover for long-term sickness absence, maternity leave, extended study leave, secondments, or career breaks.
• To protect posts for permanent staff where services are being restructured or redesigned.
• Posts without permanent funding.
• Project or research posts.

6.5.4. Reviewing fixed-term contracts

6.5.5. The employer should review all fixed-term contracts mid-term and then as appropriate. The manager and employee should review the contract status, and the manager should confirm the outcome of the discussion in writing.

6.5.6. There are 3 options which may arise during such discussions:

• no change to the length of the contract, and it will end
• extend the length of the contract
• make the post permanent

6.5.7. Ending the fixed-term contract

6.5.8. When a fixed-term contract comes to an end, it will take one of two forms, dependent on the reason for the contract:

• Where the substantive postholder returns such as after sick leave or maternity, or is appointed and the fixed-term contract was to fulfil the role pending the appointment of the permanent postholder, it is a non-redundancy situation.
• Where the post no longer exists due to the end of the project or funding, it is a redundancy situation.

6.5.9. Should the employee become displaced from the role before its agreed expiry date, the employee should be provided with suitable alternative employment. It should be for the remainder of the fixed-term on the terms and conditions they were employed. This applies irrespective of the reason for the fixed-term contract.

6.5.10. When the contract is to end, the manager will meet with the employee. The meeting should occur with sufficient time to allow access to redeployment. The access period for employees displaced due to non-renewal of a fixed-term contract can be for up to three months but certainly no less than their contractual notice period.

6.5.11. The manager should confirm the discussion details in writing within 7 days of the meeting. As the fixed-term contract ends with a dismissal, the correspondence should confirm the employee's right of appeal. For more information on ending a fixed-term contract, please see the following guides:

• Guide for managers [insert hyperlink to Guide for managers]
• Guide for employees [insert hyperlink to Guide for employees]

6.5.12. The manager should grant the employee reasonable time off to attend interviews during the redeployment period.

6.5.13. Employees whose fixed-term contract ends in a redundancy situation may be eligible for a redundancy payment in line with the NHS Terms and Conditions of Service.

6.5.14. If redeployed into a suitable alternative post, the employee may be entitled to protection if the post has ended in a redundancy situation.

6.5.15. Protection of earnings and redundancy payment will not apply if the employee accepts a post which is not considered a suitable alternative. Similarly, employees who do not actively participate in the redeployment process or unreasonably reject suitable alternative employment may lose their entitlement to a redundancy payment.

6.5.16. Renewing fixed-term contracts

6.5.17. Employees with a succession of fixed-term contracts totaling over 4 years of continuous service have a legal right to permanent contractual status. However, there may be occasions where the employer can objectively justify continued fixed-term contracts.

6.5.18. If the post is made permanent, the employer should permanently appoint the employee to the role without advertising. If the post remains fixed-term, the employee should be made permanent and be redeployed when the fixed-term post ends.

6.5.19. NHSScotland is also committed to permanently appointing employees who have more than 2 years of continuous service and meet each of the following criteria:

6.5.20. The employee must have:

• Held continuous fixed-term contracts, which were used to protect posts for permanent staff due to planned organisational change, service reconfiguration, or redeployment.

6.5.21. The organisation must have:

• Recurring funds for the post beyond 2 years to retain the employee. Alternatively, it must carry out a positive risk assessment to establish the impact should recurring funding not exist.

6.5.22. If the above criteria are met, but it is known that the contract will not be renewed within 3 months of reaching 2 years’ service, the employee’s contract of employment will remain fixed-term.

6.5.23. Unless there are clear, objective, specified reasons, the employer should not renew the initial contract:

• more than 2 times within 12 months
• for less than 3 months

6.5.24. Where the employer needs to renew the fixed-term contract, the manager should extend it with agreement from the employee. The manager will then arrange for a variation to the contract of employment to be issued to the employee using existing organisational procedures.

6.5.25. Managers should avoid fixed-term contract employees working past the specified expiry date. If the employer does not renew the contract, there is a risk that it may be considered open-ended.

6.5.26. Making the post permanent

6.5.27. Where the manager decides to make the fixed-term post permanent, they should advertise it through the normal recruitment process. The employee currently undertaking the role on a fixed-term contract basis can apply. However, as the employee’s fixed-term contract is coming to an end, if they are on the redeployment register, they should be considered for the permanent post via redeployment.

6.5.28. Permanent employees in fixed-term contracts

6.5.29. Employees whose fixed-term contract ends in a redundancy situation may be eligible for a redundancy payment in line with NHS Terms and Conditions of Service. When individuals with continuous service within the NHS apply for a fixed-term contract, boards can refuse any such appointment because their previous service can count towards redundancy entitlement.

6.5.30. A permanent employee may be appointed to, and accept a fixed-term contract. This may be where the employer rejects a secondment request, but the employee still accepts the post. The employer must advise the employee in writing that their existing permanent contract has ended, and their new contract is fixed-term. The organisation should manage the employee's contract in the same way as that of other fixed-term employees.

6.5.31. Pregnant employees in fixed-term contracts

6.5.32. The employer must extend a fixed-term contract to allow pregnant employees to access their maternity entitlements. The employee may be entitled to access redeployment and redundancy provisions. For more information, please see the following guides:

• Guide for managers [insert hyperlink to Guide for managers]
• Guide for employees [insert hyperlink to Guide for employees]

6.5.33. Read more about support for pregnant employees on fixed-term contracts in the Maternity Policy.

6.6. Supporting documentation

It is proposed that the supporting documents listed below will be developed to support the policy. Supporting documents are not part of the consultation. These will be drafted following the consultation when responses have been analysed and the policy is developed in a final draft.

• Employee guide

Descriptor: guide to help employees use and understand the Fixed-Term Contract Policy. This will include information on the nature and entitlement of fixed-term contracts and the implications of accepting a post where secondment does not apply.

• Manager guide

Descriptor: guide to help managers use and understand the Fixed-Term Contracts Policy. This will include information on the nature and entitlement of fixed-term contracts and the implications of an employee accepting a post where secondment does not apply.

• Fixed-term contracts policy flowchart

Descriptor: visual and text alternative flowcharts outlining the key steps in the Fixed-Term Contract Policy.

6.7. Consultation questions

We are inviting responses to this consultation using the Scottish Government’s consultation hub. The following questions are set.

In your response, all questions have the option to answer yes or no. You are invited to provide further comment in a free text box. If you wish to make specific reference to a section of the policy, please quote the relevant numbered line in this consultation document.

1. Do you feel there are any gaps in the policy?

2. Do you feel there are any gaps in the proposed list of supporting documents?

3. Do you have any other comments to make on the policy?

4. Do you have any views on the potential impacts of this policy on equalities groups?

It is against the law to discriminate against someone because of: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. These are protected characteristics under the Equality Act, 2010.