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Updated Guidelines on the Protection of Employee (Fixed Term Work) Act 2003

Updated Guidelines on the Protection of Employee (Fixed Term Work) Act 2003

VERSION 1

OCTOBER 2006

HSE Employers Agency – Fixed Term Work October 2006

TABLE OF CONTENTS

TABLE OF CONTENTS 2

1. INTRODUCTION 3

2. PURPOSE OF THE LEGISLATION 3

3. NON-DISCRIMINATION IN TERMS AND CONDITIONS 4

4. REGULATING THE USE OF FIXED TERM CONTRACTS 7

5. INITIAL FIXED TERM CONTRACT 7

6. RENEWING A TEMPORARY CONTRACT 8

7. OBJECTIVE GROUNDS 9

8. CONTRACTS OF INDEFINITE DURATION 11

9. PERMANENT AND INDEFINITE DURATION - DIFFERENT? 12

10. ACTING UP 13

11. OBJECTIVE JUSTIFICATION 13

12. INFORMING RE PERMANENT VACANCIES 14

13. ANTI-AVOIDANCE PROVISIONS 14

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14. RELIEF STAFF 15

15. SUMMARY 17

16. APPENDIX 1 – TYPES OF CONTRACTS 18

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1. Introduction

The Protection of Employees (Fixed-Term Work) Act 2003 which came into force on

the 14th July 2003, has had major implications for the employment of temporary staff

in the health service. This document is intended to update the guidelines which were

issued by the Agency in April 2004, and to provide up-to-date information on the

most salient provisions of the legislation to date.

There is a lot of confusion in the health service about the definition of fixed term and

to whom the label applies. In health service parlance fixed term employees were

traditionally described as temporary and persons employed on contracts of indefinite

duration were traditionally described as permanent. There are a number of scenarios

for which the term “temporary” is used in the Health Services1. These scenarios

derive from the fact that traditionally employees who were not recruited as permanent

employees through open competition were described as temporary regardless of the

purpose or duration of their employment. Employees who fell into this category

include:

A. Employees employed to fill vacant posts pending their permanent approval

and filling.

B. Persons employed for a specific initiative.

C. Locums – i.e. persons who fall into this category include individuals employed

either on a once-off short-term basis or those employed intermittently on an “if

and when required” basis.

D. People employed as “temps”. Frequently such employees are issued with

“reminder” temporary contracts on a regular basis, e.g. every 6-months.

2. Purpose of the Legislation

The purpose of Fixed Term Work Act is:

(i) To improve the quality of fixed-term work through the application of

the principle of non-discrimination by ensuring that fixed term /

temporary workers are not treated less favourably than comparable

1 We are not suggesting that these are genuine fixed term scenarios.

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permanent workers; i.e. they must be provided with the same terms and

conditions of employment (other than tenure).

(ii) To prevent abuse arising from the use of successive fixed-term

employment contracts by regulating the use of fixed-term / temporary

employment contracts. The employer is required to provide information

relating to the purpose and duration of the employment when issuing

contracts of employment to temporary staff.

(iii) The law provides for a maximum duration of successive fixed term

contracts after which they are deemed to be permanent contracts. By

operation of the law the “offending” term (i.e. temporary or fixed term) is

severed from the contract thus altering its status from one of definite

duration to one of indefinite duration.

3. Non-Discrimination in relation to Terms and Conditions of Employment

Temporary employees are entitled to be treated in the same manner as comparable

permanent employees, unless the difference in treatment can be objectively justified.

Comparable permanent employees are persons who perform the same work as the

temporary employees under the same or similar conditions. Temporary / fixed term

employees are also entitled to be treated on an identical basis to the permanent

employees if the work performed is different but of equal or greater value to that of

the permanent employees.

Temporary employees may work part-time or whole-time hours of attendance. If

temporary employees work part-time, their comparable employees are equivalent

permanent part-time staff. If the temporary employees are whole time, then the

equivalent permanent whole-time employees are the comparators. It is up to the

temporary employee to choose their comparator.

All fixed term employees are entitled to the same terms and conditions of

employment as their permanent counterparts from the first day of their employment

unless there are objective reasons for a difference in treatment. The following are

some examples of conditions of employment which apply equally to fixed term staff.

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If the employer operates an induction programme it is important that

temporary staff would be provided with an opportunity to undergo a similar

programme. The purpose of a probationary period is to establish an

employee’s suitability for the position; this should be done in the time of entry

and not in the fourth year of employment.

Temporary employees are entitled to the same annual leave as permanent

employees on a pro-rata basis; e.g. employees on a six-month temporary

contract are entitled to half the annual leave entitlement of comparable

permanent employees. Service related annual leave entitlements may continue

to be granted but there should be no distinction between permanent and

temporary service for the purposes of accruing this entitlement; e.g. where an

extra annual leave day is granted to permanent employees on completion of 2

year’s service, this entitlement must also extend to temporary employees.

All temporary employees on maternity leave are entitled to receive maternity

pay. However should the temporary contract expire before the end of the

maternity leave, maternity pay will not be paid beyond the expiry date of the

contract (except in the cases of NCHDs).

Temporary employees are entitled to access to pension schemes on the same

basis as their permanent counterparts where they work at least 20% of the

hours of the comparable permanent employee.

Temporary employees are entitled to the same sick pay as permanent

employees on a pro-rata basis; e.g. where a permanent officer is entitled to six

months full pay and six months half pay in a four year period, a temporary

officer employed on a one year contract would be entitled to one quarter of

this entitlement. The local rules of sick pay schemes must apply equally to

both temporary and permanent staff e.g. rules relating to uncertified days

should be granted on a pro-rata basis.

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Temporary employees are entitled to the same treatment as permanent

employees in the workplace. This includes access to training, performance

review, personal development planning or any other treatment which

helps the employees to perform the job to the best of their ability.

All temporary service must now be reckoned the same as permanent service

for the purpose of access to permanent competitions. This means that there

can be no distinction between permanent or temporary service for access to

promotional posts.

The employer may be able to objectively justify different treatment of

temporary staff however the grounds for the different treatment must be based

on considerations other than the temporary status of the employees. For

example the non-grant of flexible working to a fixed term employee in a very

specialised area on the basis that there is no one available to cover the shortfall

in hours and the employer has clearly established that the employee in this

instance cannot be accommodated, this could be deemed to be an objective

ground as it could be argued that the requirement to work whole-time and it

would achieves a legitimate objective of the employer and is appropriate and

necessary for the purpose. E.g. the employer requires a project to be

completed by a specific time frame and it is necessary to have a whole-time

person.

Statutory leaves such as maternity leave, parental leave, adoptive leave,

Force Majeure leave, annual leave and public holidays all have their own

qualifying conditions and these conditions are not necessarily affected by this

legislation.

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4. Regulating the Use of Fixed Term Contracts – Section 8

Section 8 of the legislation is particularly important from the health service

perspective and requires employers to rethink the way they administer fixed term

contracts. The legislation is not intended at limiting the use of fixed-term contracts

per se. Rather it is intended to prevent the successive use of fixed-term contracts in a

manner which is deemed to constitute abuse. Recent decisions under the Fixed Term

Work legislation have reinforced the importance of the correct administration of fixed

term contracts, both at the initial stage and the renewal stage. The Act itself stipulates

certain information must be provided to all fixed term employees in their contracts of

employment. This aspect of the Act is one which employers must pay special

attention to. Local managers must be extremely vigilant to ensure that the temporary

contract reflects the specific circumstance of each individual’s temporary

employment. The information that must be stipulated in each contract is as follows:

Initial Fixed Term ContractAt the commencement of an employee’s temporary employment s/he should be

provided with a contract, which in addition to providing the standard information

relating to the terms and conditions of employment, should include information

relating to the employment circumstances and the objective reason which will bring

about the termination of their contract, i.e.

Reaching a specific date, e.g. 31st December 2006

Completing a specific task – until the research project has been completed

The occurrence of a specific event - the employee who you have replaced

returns from maternity leave

These conditions must be specified in writing in the contract of employment in a

timely manner.

NB –Specific Purpose Contracts

Many fixed term employees are employed for a specific purpose the length of time for

which they will be employed may not be capable of being determined at the initial

appointment stage, e.g. they are employed in a post pending it being filled in a

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permanent capacity through open competition. This type of fixed term employee

should be issued with a Specific Purpose contract, which outlines the specific purpose

for which they are employed clearly stipulated on the contract and the specific event

which will bring about the contract’s termination.

Example 1:You are employed pending the filling of the post on a permanent basis

through open competition (or the Public Appointments Service). Your employment

will terminate when the permanent employee takes up duty.

Example 2: You are employed to cover the career break of Mr John Smith. Your

employment will terminate upon Mr Smith returning to work at the termination of his

career break.

Example 3: You are employed under the Waiting List Initiative. This is a temporary

post and your employment will terminate when the Waiting List Initiative comes to an

end.

If the person’s employment is terminated at the cessar of the purpose specified in the

contract or on the expiry date of the initial fixed term contract, i.e. there is no renewal,

the employee has no further entitlements under this legislation and s/he will not

qualify for a contract of indefinite duration. Specific purpose contracts should not be

renewed except in very exceptional circumstances.

Renewing a Temporary Contract

Where it is intended to extend or renew a fixed term contract the employer must

specify in writing the grounds which will bring about the termination of the contract:

Arriving at a specific date, e.g. 1st July; or

Completing a specific task, e.g. finishing a research project; or

The occurrence of a specific event, e.g. the return of a permanent employee

following maternity leave.

The employer must also advise the employee in writing of the objective reasons (see

page 7 overleaf) for the renewal of the fixed term contract and the reason as to why

s/he is not being offered a permanent contract. This information must be set out in

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writing to the employee no later than the date of the renewal. Employers cannot

retrospectively supply this information to the employee. It is also not sufficient to

make assertions such as “All Consultants know that permanent posts as filled through

the PAS” or “the NCHD knew that they were participating on a training scheme”.

Objective Grounds

The purposes of Section 8 is not just to ensure that a fixed term employee is informed

about the reason that his /her contract is being renewed, the contract must also

stipulate an objective ground justifying its renewal which must be based on

considerations other than the temporary status of the employees. This means that the

practice of automatic renewal of the temporary contracts without real regard to the

circumstances which give rise to the renewal is no longer permitted. Employers

must examine the circumstances of all fixed term employees when they are drawing

up their contracts.

The purpose of this Section also extends to ensuring that the employer has clearly

established that it has no option but to renew the contract on a temporary basis.

Section 8 and Section 9 of the legislation are therefore linked as the rationale for the

renewal of the contract on a fixed term basis will frequently be the same rationale for

the denial of indefinite duration status where the criteria under the legislation is met.

Employers must be able to show that they gave proper consideration to granting the

employee a contract of indefinite duration, but real and objective reason exist for

continuing the employee on a fixed term basis and these reasons are outlined to the

employee in their renewal contract, i.e. the operational reality of the person’s

employment is outlined to the employee in the paperwork that is furnished to them.

The continuation of employees employed on a fixed term basis must correspond to a

real need on behalf of the organisation and reflect the reality of that need, i.e. the

contract renewal shouldn’t merely be a function of administration.

Example: A person has been employed on a fixed term basis to cover another

member of staff’s maternity leave. The permanent employee has now returned from

maternity leave so the purpose for which the fixed term employee was employed has

been fulfilled. However another member of staff has gone on sick leave and you wish

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to retain the person on a fixed term basis to cover the vacancy caused by the sick

leave. The following detail must be inserted in the renewed contract:

You are employed to cover for Ms Celia Murphy while she is on sick leave. Your

employment with the HSE will terminate when Ms Murphy returns from sick leave.

You are not being offered a contract of indefinite duration as Ms Murphy is the

permanent holder of this post.

Termination of Contracts

If the renewed contract terminates before the employee comes within the scope of S.

9(1) or (2) of the Act then the employee has no further entitlement under this

legislation (however there is anti-avoidance measures that the employer needs to be

aware of which are outlined in this document below).

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5. Contracts of Indefinite Duration – Section 9

Section 9(1) of the legislation states that existing temporary employees who were in

employment when the legislation came into force i.e. 14th July 2003; had completed

three or more year’s continuous service with their employer, may have had their

contracts renewed only once more by the employer for no longer than one year.

Following the next renewal the temporary contract would be deemed a contract of

indefinite duration.

Section 9(2) of the legislation states that where fixed term employees are recruited

after the passing of the Act and are employed on two or more continuous temporary

contracts the total duration of these contracts may not exceed four years or the

contract will be deemed to be permanent.

For example, an employee whose two year initial fixed-term / temporary contract is

subsequently renewed will be automatically deemed to have a contract of indefinite

duration when a four year aggregate has been exceeded.

When the timeframes provided in the legislation have been exceeded the fixed term

designation has no effect and the contract concerned shall be deemed to be a contract

of indefinite duration. Conversion from fixed term (temporary) designation to

indefinite duration status cannot be made dependent on certain conditions by the

employer, e.g. subject to satisfactory references or undergoing a medical assessment.

While it may be good practice to obtain references for all temporary staff and be

proactive with regard to their safety, health and welfare, the employee’s rights under

this legislation are not dependent on any particular conditions set down by the

employer. In FTL/05/11 Determination No. 063 the Labour Court state “The

expression “contract of indefinite duration” should be understood in

contradistinction of a contract of definite duration on a fixed term contract. The

terms and conditions of a contract of indefinite duration which comes into being by

operation of Section 9(3) must therefore be the same as those contained in the fixed

term contract from which it is derived as modified by Section 6 in all respects other

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than its fixed term duration.” This confirms that there is no offer and acceptance of a

contract of indefinite duration, it happens automatically by virtue of the legislation.

Where an employee acquires indefinite duration status as a result of Section 9(1) or

(2) of the Act they will be entitled to the same terms and conditions of employment

that they enjoyed heretofore, the only difference being the change in the tenure of

their contract. i.e. their contract alters from one of definite duration to one of

indefinite duration, their remaining terms and conditions of contract are unaffected.

An employee is only entitled to what they had before they became an indefinite

employee, e.g. a Locum employee would not be entitled to whole-time hours by virtue

of the fact that s/he acquire indefinite duration status. Instead s/he would acquire an

entitlement to locum work on the same basis as heretofore on an indefinite basis.

Distinction between permanent and indefinite duration?

The question has been asked as to whether or not there is a distinction between

permanent employees and employees who acquire indefinite duration status under the

Act. This issue was addressed in a decision under this legislation by the Rights

Commissioner, who defined a contract of indefinite duration as follows:

“A person who has an expectation that subject to the normal date of retirement in the employment, she will be retained in the employment and will not be dismissed without there being any good reason such as misconduct or unfitness for her position, or other compelling or unavoidable circumstances. Any dismissal shall be achieved by the application of the agreed termination arrangements for her employment or the application of the relevant Statute as the case may be by reference to the comparable employee, in this case, an established civil servant.

The Labour Court subsequently upheld this view.

There is no distinction therefore in practical terms between either category of

employee and the term indefinite duration could be used to describe all employees

who are not employed on a fixed term basis.

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It should be noted that indefinite duration/permanent status does not mean that the

employee’s employment cannot be terminated on grounds of misconduct, capability,

redundancy or any of the grounds set out in the Unfair Dismissals Act, 1977-2001.

Acting Up If a temporary employee is acting in a higher position their entitlement will merely be

to their substantive post. The acting up arrangement would continue to run its course

and the employee would revert to a substantive post when appropriate, i.e. the

indefinite duration status does not impact on the acting up arrangement one way or

another. This position was confirmed by the Labour Court in the Northern Area

Health Board and Christina Hughes case. However it is important that the temporary

nature of the acting up arrangement should be pointed out to the employee.

Objective Justification for the Non-Grant of Indefinite Duration Status

As outlined above, there may be objective grounds for continuing the employee on a

fixed term basis after they have exceeded the time limits as outlined in Section 9(1) or

9(2) of the Act. The Rights Commissioners and Labour Court to date have followed

the objective justification test which was set by the European Court of Justice (ECJ).

To prove that objective grounds for continuing an employee on a fixed-term basis the

employer must be able to demonstrate that there is:

A real need – must be essential

The means chosen are appropriate – must be proportionate

Necessary – Demonstrate no alternative ways of achieving the objective in

view.

As the entitlement to a contract of indefinite duration under this legislation derives

from a European Directive employers will find it extremely difficult to meet each of

the above criteria unless the reasons for not granting indefinite duration status to an

employee are extremely compelling. The requirement to satisfy domestic rules or

legislation so far has not satisfied the criteria in cases taken before third parties.

Additionally, following the rationale of the Rights Commissioners and the Labour

Court in recent decisions if the employer wishes to plead objective justification, the

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objective reason must have been identified to the employee at the time that the

contract is being drawn up. If the objective ground has not been officially outlined to

the employee in writing at the date of the contract renewal (as required by Section

8(2)) it would appear that the employer cannot rely on these objective grounds for the

non-grant of indefinite duration status to an employee, after they come within the

timeframes of Section 9(1) and (2) and the employer wishes to plead a defence under

Section 9(4).

6. Informing Fixed Term Employee About Permanent Vacancies – Section 10

This Section requires employers to formally notify all temporary employees of any

permanent vacancy that arises in the employment. It is, therefore, particularly

important temporary employees are informed when permanent posts are advertised.

This can by done by way of placing an advertisement in a suitable public location.

This obligation applied to promotional posts as well as posts at the same level of as

the fixed term employee.

7. Anti-avoidance provision – Section 13

Where the employer decides not to renew a fixed-term contract or offer a permanent

appointment, the decision for the termination must correspond with the information

provided in the contract, and the employment should not merely be terminated

because the timeframes as provided for in Section 9(1) or (2) are within sight. Section

13(i)(d) of the legislation prohibits an employer from dismissing an employee if the

dismissal is “wholly or partly for or connected with the purpose of the avoidance of a

fixed-term contract being deemed to be a contract of indefinite duration under section

9(3). A decision to terminate could also give rise to a claim under the Unfair

Dismissals Acts, 1977-2001 if the employee perceives that the employment did not

genuinely end i.e. there is still an ongoing requirement for the work performed by the

employee.

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8. Relief Staff

The Health Service employs locum staff on an “if and when” basis to ensure

continuity of services. The requirements for these staff vary from time to time. The

reason for their employment is to cover short-term sick leave, annual leave, maternity

leave, and other exigencies as they arise. There are no guaranteed minimum hours

provided in the contracts, as the HSE cannot predict what level of exigency might

arise. These employees do not have designated substantive posts but “fill in” for other

employees when required at any particular time. Traditionally these staff received

fixed term contracts for each stint of work that they undertook, without a commitment

for any future employment. However in reality these arrangements continue

indefinitely, and this contractual arrangement can be deemed one of indefinite

duration, i.e. Relief / ‘If and When’ contracts of indefinite duration. These contracts

do not confer an entitlement to guaranteed hours or continuous employment, however

it does confer an indefinite employment relationship based on a relief basis, i.e. there

is no termination of the employment relationship at the end of each stint of

employment.

NOTE:

At the outset it is important to note that the majority of temporary employees who

have twelve months continuous service come under the scope of the Unfair

Dismissals Act, 1977-1993, except where they are excluded contracts under the Act

where the contract comes to an end at the cessar of the purpose and the contract

specifically provides for this exclusion. The Act provides that temporary employees

cannot be “let go” merely because they do not have a “permanent” designation. The

legislation does not distinguish between “temporary” and “permanent employees”; it

is the employee’s length of service that determines whether or not s/he comes within

the scope of the Act.

The Unfair Dismissals Act provides that a dismissal is deemed to be unfair unless

there are substantial grounds to justify it. Substantial grounds in the main include:

capability, competence or conduct of the employee. Describing the contract as

temporary contract does not constitute substantial grounds to justify a dismissal.

Therefore where temporary employees who are “let go” after they have acquired

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twelve months service may claim unfair dismissal under the Unfair Dismissals Act

1977-1993. The employer would then have to prove that the termination was due to

the temporary purpose / work for which the employee was recruited ceasing to exist

and was fair in all the circumstances.

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9. Summary

The purpose of Fixed Term Work Act is:

(iv) To improve the quality of fixed-term work through the application of the

principle of non-discrimination by ensuring that fixed term / temporary

workers are not treated less favourably than comparable permanent

workers

(v) To prevent abuse arising from the use of successive fixed-term

employment contracts by regulating the use of fixed-term / temporary

employment contracts.

(vi) The law provides for a maximum duration of successive fixed term

contracts after which they are deemed to be permanent contracts.

All fixed term employees are entitled to the same terms and conditions of

employment as their permanent counterparts from the first day of their

employment unless there are objective reasons for a difference in treatment.

Employers should seek from the outset the reason the employee is being

recruited on a fixed-term basis and where possible issue a Specific Purpose

Contract. If this is not possible a fixed term contract should be issued. If

there is no renewal of these contracts the employee has no further entitlement

under this legislation.

Where it is intended to extend or renew a temporary / fixed term contract the

employer must specify in writing the grounds which will bring about the

termination of the contract. However the employer must also advise the

employee in writing of the objective reasons for the renewal of the fixed term

contract and the reason as to why s/he is not being offered a permanent

contract. This information must be set out in writing to the employee no later

than the date of the renewal.

When the timeframes provided in the legislation have been exceeded the

“temporary” designation has no effect and the contract concerned shall be

deemed to be a contract of indefinite duration.

There may be objective grounds for continuing the employee on a fixed term

basis after they have exceeded the time limits as outlined in Section 9(1) or

9(2) of the Act.

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Appendix 1

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10.Different Types of Contract

Introduction

The foregoing section has set out the terms and conditions of employment which

should be communicated to the employee. This section sets out information in

relation to the different forms of employment and includes model contracts which

cover the various types of employment relationships, for example:

- Fixed term employment – temporary,

- Specified purpose employment - temporary,

- Indefinite duration employment - permanent,

- Employment on a relief basis.

Guidance is offered to managers in relation to the proper use of these contracts.

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Fixed Term Employment - Temporary

Employees who are employed to cover short-term exigencies should be issued with

contracts of employment which reflect the specific circumstances for which they are

employed including all of the standard temporary exigencies such as annual leave,

sick leave, etc. A sample fixed term temporary contract is attached and this contract

maybe issued to cover all temporary requirements.

To ensure compliance with the Protection of Employees – Fixed Term Work Act

2003, the purpose / duration of the temporary contract should be identified. It is

important to determine at the outset which circumstance will be about the termination

of the contract:

Reaching a specific date, e.g. 31st December; or

Completing a specific task, e.g. building of a hospital wing; or

The occurrence of a specific event, e.g. the particular exigency comes to an

end such as the return of a person / persons from long term sick leave / annual

leave, or the filling of the particular post on a permanent basis.

It is important to note that there is no barrier in the legislation to the renewal of this

type of contract but the employer must have objective reasons for doing so. The

temporary contract may be deemed to be a contract of indefinite duration (i.e.

permanent) after certain time periods

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SAMPLE CONTRACT - Fixed Term Employment

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Name & address of Employer

Name of Employee: _____________________

Reference Number: _____________________

Address of Employee: _____________________

_____________________

_____________________

1. Title You are employed as _____________________________________.

2. Commencement Date Your employment with the _______________ (Employer) will commence on _____________ (date).

3. Purpose, Duration and Termination The _______________(Employer) requires short-term temporary staff for _____________________________________________ (e.g. summer period). Your employment duration will be for the fixed-term period from ____________ to _________________. Your employment with the _______________ (Employer) shall cease on _________. The Unfair Dismissals Act, 1977-2001 shall not apply to your dismissal consisting only of the expiry of your contract on this date.

4. Location You will be employed in __________________ (e.g. Hospital).Your initial assignment will be to _______________________________________ (e.g. service area, ward, etc.). You may be required to work in any service area within the vicinity as the need arises.

5. Reporting Relationship You will report to _____________________________ or other nominated manager (e.g. Director of Nursing, Head of Services, etc.).

6. Duties The main duties of your position are set out in the attached job description.In addition to your normal duties, you may be required to undertake other duties appropriate to your position as may be assigned to you, including deputising as appropriate.

7. Policies/Legislation You are required to comply with legislation /policies which have particular application to your position (e.g. Trust in Care, Children First, etc.). Details of these policies will be communicated to you by your manager.

8. Remuneration

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The approved salary scale (as at dd/mm/yyyy) for your post is __________________________________________________________________(list points on scale)You will be paid at the ___________ point of the scale, i.e. € ______________ per annum, with an increment date of _________________. This will be adjusted in line with any applicable nationally negotiated increases for your grade.Statutory deductions will be made in respect of PAYE and PRSI (Class A).You will be paid ____________ (e.g. fortnightly) in arrears by paypath. Should you work part-time you will be paid on a pro rata basis.

9. Required Hours of Attendance The standard weekly working hours of attendance for your grade are _________ hours per week. Your normal weekly working hours are ___________ hours. Contracted hours which are less than the standard weekly working hours for your grade will be paid pro rata to the full time equivalent.You will be rostered over seven days of the week, i.e. Monday through Sunday (insert if appropriate to the grade). Starting / finishing times and duty days will be notified to you by your manager.Where you are required to work unsocial hours and/or night duty you will be remunerated at the nationally approved rates for your grade.You may be required to work overtime, remuneration for which will be in line with nationally approved rates for your grade.

10. Annual leave Annual leave and public holidays are granted in accordance with the provisions of the Organisation of Working Time Act, 1997. The annual leave entitlement for your grade, based on the standard hours of attendance is __________ days per completed year of service. You are entitled to pro-rata of this amount for periods of employment of less than one year.

11. Superannuation / Pension You will be covered by the terms of the _____________ Superannuation Scheme. You will be required to contribute to the scheme. Details of the scheme are available from ________________________.

12. Performance Review Your performance will be regularly reviewed during your employment which will involve

discussions between you and your supervisor in relation to your performance and

conduct.

13. Code of Conduct You will be expected to abide by the staff rules, codes of conduct and dress as laid down by the _______________(Employer) from time to time.

14. Other employment To ensure compliance with Section 33 of the Organisation of Working Time Act 1997, in respect of double employment and the number of hours worked during a reference period, the _______________(Employer) requests that you advise of any outside employment for which you receive remuneration.You should not engage in any gainful occupation, other than as an employee of the _______________ (Employer), to such an extent as to impair the performance of your duties or which might be inconsistent with the discharge of your duties as an employee

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of the _______________ (Employer), or which conflicts with the interests of the _______________ (Employer).

15. Sick leave You are covered by the _______________ (Employer’s) sick leave scheme, applicable to your grade, details of which are set out in the staff handbook.

16. Grievance Procedure You have the right to seek redress in respect of any aspect of your terms and conditions of employment under the _______________( Employer’s) grievance procedure. Should you have a grievance you should follow the grievance procedure which will be issued to you on commencement of your employment.

17. Disciplinary Procedure The _______________ (Employer) requires that you conduct your duties in such a way as to achieve high standards of work practice and patient care. In the event of your failure to achieve these standards the disciplinary procedure will be invoked. A copy of the _______________( Employer’s) disciplinary procedure will be issued to you on commencement of your employment.

18. Health and Safety The _______________(Employer) is committed to ensuring the safety, health and welfare of its staff and, to this end, a safety statement has been prepared setting out all the safety arrangements which are in force. All staff at the _______________(Employer) also have a legal obligation in relation to safety, health and welfare at work and are required to follow the guidelines contained in the _______________ (Employer’s) safety regulations / safety statement. You are obliged to familiarise yourself with the _______________(Employer’s) safety regulations / safety statement arrangements in relation to your own employment and you have a responsibility to adhere to these at all times.

19. Confidentiality You shall not discuss or disclose any information of a confidential nature except in the proper course of your employment.

20. Records / Property You shall not remove any records belonging to the _______________ (Employer) from the _______________(Employer’s) premises at any time without proper advance authorisation.

You will return to the _______________(Employer) upon request, and in any event, upon termination of your employment, all records and property belonging to the _______________(Employer) which are in your possession and under your control.

21. Security The __________ (Employer) reserves the right to search your person and property while on or while departing from the __________ (Employer’s) premises.

22. Notice The _______________ (Employer) reserves the right to terminate this contract on the giving of the appropriate period of notice set down by the Minimum Notice and Terms of Employment Act, 1973-2001.

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You will be required to give the _______________ (Employer) at least two week’s notice in writing of your intention to terminate your employment.

23. Retirement The retirement age for staff employed by the _______________(Employer) is 65 years*.

24. Staff handbook A copy of the _______________ (Employer’s) staff handbook is enclosed and forms an integral part of your contract.

25. Agreement Your terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the _______________(Employer).

I accept and agree to be bound by the above terms and conditions.

SIGNED: ………………………………. (Employee)

DATE: ……………………………….

SIGNED: ………………………………. (for the _______________ Employer)

DATE: ……………………………….

* This provision is not appropriate for inclusion in a contract of employment for a staff member defined as a new entrant public servant (see page 7/8).

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Specified Purpose Employment - Temporary

A specified purpose contract should be issued where there is a clear need to employ

an individual on a once off basis, for example:

- to carry out a particular project. The contract will not necessarily be for a

specific period of time but rather it will be for the purpose of completing

the project; or

- to replace a staff member whose absence is clearly determined in advance,

e.g. a career break; or

- to provide service pending the filling of a particular vacancy on a

permanent basis through open competition.

The specified purpose contract can be issued for longer than four years without being

automatically deemed a permanent contract. What is important about this contract is

that it is issued for a specified purpose e.g. to provide cover for a career break, or

pending the filling of the post in a permanent capacity. Renewals of this type of

contract will be a rarity. The purpose for which the individual is engaged must be

clearly communicated to the temporary employee.

The specified purpose contracts should include the exclusion provision under the

Unfair Dismissals Acts 1977-2001.

Your employment with the __________ (employer) shall be for the purpose of filling a

Clerical Officer vacancy on a temporary basis pending the permanent filling of the post

through open competition. The Unfair Dismissals Acts, 1977-2001 shall not apply to

your dismissal, consisting only of the cesser of the said purpose.

What this means is that if the employee is let go immediately upon the filling of the

post by a person who has successfully competed in the open competition, the

termination should not be covered by the unfair dismissals legislation. It is vital

however that all aspects of the process are watertight if this exclusion provision is to

be relied upon.

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SAMPLE CONTRACT - Specified Purpose Employment (Temporary)

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Name of Employee: _____________________Reference Number: _____________________

Address of Employee: _______________________________________________________________

1. Title You are employed as _____________.

2. Commencement Date Your employment with the _______________(Employer) will commence on ____________ (date).

3. Purpose and Termination Your employment with the _______________(Employer) shall be for the purpose of ____________________________________________________________________________________________________________________________________ (e.g. filling a Clerical Officer vacancy on a temporary basis pending the permanent filling of the post through open competition). The Unfair Dismissals Act, 1977-2001 shall not apply to your dismissal consisting only of the cesser of the said purpose.

4. Location You will be employed in ________________ (e.g. Hospital).Your initial assignment will be to _______________________________________ (e.g. service area, ward, etc.). You may be required to work in any service area within the vicinity as the need arises.




8. Remuneration

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The approved salary scale (as at dd/mm/yyyy) for your post is __________________________________________________________________(list points on scale)You will be paid at the ___________ point of the scale, i.e. € ______________ per annum, with an increment date of _________________. This will be adjusted in line with any applicable nationally negotiated increases for your grade.Statutory deductions will be made in respect of PAYE and PRSI (Class A).You will be paid ____________ (e.g. fortnightly) in arrears by paypath. Should you work part-time you will be paid on a pro rata basis.



11. Superannuation / Pension You will be covered by the terms of the _______________ Superannuation Scheme. You will be required to contribute to the scheme. Details of the scheme are available from _____________________.


discussions between you and your supervisor in relation to your performance and conduct.

13. Code of Conduct You will be expected to abide by the staff rules, codes of conduct and dress as laid down by the ______________(Employer) from time to time.

14. Other employment To ensure compliance with Section 33 of the Organisation of Working Time Act 1997, in respect of double employment and the number of hours worked during a reference period, the ______________(Employer) requests that you advise of any outside employment for which you receive remuneration. You should not engage in any gainful occupation, other than as an employee of the _______________(Employer), to such an extent as to impair the performance of your duties or which might be inconsistent with the discharge of your duties as an employee of the ______________(Employer), or which conflicts with the interests of the ______________(Employer).

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15. Sick leave You are covered by the _______________(Employer’s) sick leave scheme, applicable to your grade, details of which are set out in the staff handbook.

16. Grievance Procedure You have the right to seek redress in respect of any aspect of your terms and conditions of employment under the _______________(Employer’s) grievance procedure. Should you have a grievance you should follow the grievance procedure which will be issued to you on commencement of your employment.

17. Disciplinary Procedure The _______________(Employer) requires that you conduct your duties in such a way as to achieve high standards of work practice and patient care. In the event of your failure to achieve these standards the disciplinary procedure will be invoked. A copy of the _______________(Employer’s) disciplinary procedure will be issued to you on commencement of your employment.

18. Health and Safety The _______________(Employer) is committed to ensuring the safety, health and welfare of its staff and, to this end, a safety statement has been prepared setting out all the safety arrangements which are in force. All staff at the ______________(Employer) also have a legal obligation in relation to safety, health and welfare at work and are required to follow the guidelines contained in the _______________(Employer’s) safety regulations / safety statement. You are obliged to familiarise yourself with the _______________(Employer’s) safety regulations / safety statement arrangements in relation to your own employment and you have a responsibility to adhere to these at all times.


20. Records / Property You shall not remove any records belonging to the _______________(Employer) from the ______________(Employer’s) premises at any time without proper advance authorisation.

You will return to the _______________(Employer) upon request, and, in any event, upon the termination of your employment, all records and property belonging to the _______________(Employer) which are in your possession or under your control.


22. Notice The ______________(Employer) reserves the right to terminate this contract on the giving of the appropriate period of notice set down by the Minimum Notice and Terms of Employment Act, 1973-2001.You will be required to give the _______________(Employer) at least two week’s notice in writing of your intention to terminate your employment.

23. Retirement

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The retirement age for staff employed by the _______________(Employer) is 65 years*.

24. Staff handbook A copy of the _______________(Employer’s) staff handbook is enclosed and forms an integral part of your contract.




DATE: ……………………………….

SIGNED: ………………………………. (for the _______________Employer)

DATE: ……………………………….


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Employment of Indefinite Duration - Permanent Contract

Employees who are not employed on contracts of fixed duration / specified purpose

(temporary) are employed on contracts of indefinite duration.

A contract of indefinite duration is ‘de facto’ a permanent contract and should only be

offered where it is envisaged that the requirement for the individual’s services will

continue indefinitely. A rigorous recruitment process usually precedes the offer of

such contracts and they are normally subject to the successful completion of a

probation period.

In certain circumstances such contracts may come to an end for reasons such as

redundancy, incapacity, incapability, retirement, etc.

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Name of Employee: _____________________Reference Number: _____________________

Address of Employee: _______________________________________________________________

1. Title

You are employed as _____________________________________


3. Probationary Period A probationary period of one year shall apply from commencement of employment, during which the contract may be terminated by either party in accordance with the Minimum Notice and Terms of Employment Act, 1973-2001. The probationary period may be extended at the discretion of management. Confirmation of your appointment as a permanent member of staff is subject to the successful completion of the probation period.

4. Location You will be employed in _____________________ (e.g. Hospital).Your initial assignment will be to _______________________________________ (e.g. service area, ward, etc.). You may be required to work in any service area within the vicinity as the need arises.




8. Remuneration The approved salary scale (as at dd/mm/yyyy) for your post is __________________________________________________________________(list points on scale)You will be paid at the ___________ point of the scale, i.e. € ______________ per annum, with an increment date of _________________. This will be adjusted in line with any applicable nationally negotiated increases for your grade.Statutory deductions will be made in respect of PAYE and PRSI (Class A).

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You will be paid ____________ (e.g. fortnightly) in arrears by paypath. Should you work part-time you will be paid on a pro rata basis.



11. Superannuation / Pension You will be covered by the terms of the ___________________ Superannuation Scheme. You will be required to contribute to the scheme. Details of the scheme are available from _____________________________.




14. Other employment To ensure compliance with Section 33 of the Organisation of Working Time Act 1997, in respect of double employment and the number of hours worked during a reference period, the ______________(Employer) requests that you advise of any outside employment for which you receive remuneration. You should not engage in any gainful occupation, other than as an employee of the ______________(Employer), to such an extent as to impair the performance of your duties or which might be inconsistent with the discharge of your duties as an employee of the ______________(Employer), or which conflicts with the interests of the _______________(Employer).

15. Sick leave You are covered by the ______________(Employer’s) sick leave scheme, applicable to your grade, details of which are set out in the staff handbook.

16. Grievance Procedure You have the right to seek redress in respect of any aspect of your terms and conditions of employment under the _______________(Employer’s) grievance procedure. Should you have

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a grievance you should follow the grievance procedure which will be issued to you on commencement of your employment.


18. Health and Safety The _______________(Employer) is committed to ensuring the safety, health and welfare of its staff and, to this end, a safety statement has been prepared setting out all the safety arrangements which are in force. All staff at the _______________(Employer) also have a legal obligation in relation to safety, health and welfare at work and are required to follow the guidelines contained in the _______________(Employer’s) safety regulations / safety statement. You are obliged to familiarise yourself with the _______________(Employer’s) safety regulations / safety statement arrangements in relation to your own employment and you have a responsibility to adhere to these at all times.


20. Records / Property You shall not remove any records belonging to the _______________(Employer) from the _______________(Employer’s) premises at any time without proper advance authorisation.



22. Notice The _______________(Employer) reserves the right to terminate this contract on the giving of the appropriate period of notice set down by the Minimum Notice and Terms of Employment Act, 1973-2001.You will be required to give the _______________(Employer) at least two week’s notice in writing of your intention to terminate your employment.



25. Agreement


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Your terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the _______________(Employer).



DATE: ……………………………….

SIGNED: ………………………………. (for the _______________Employer)

DATE: ……………………………….

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Relief Contract

Traditionally the hospital manager has a list of people available to provide services on

an intermittent basis. These people are called upon to provide services depending on

the particular exigencies of the service at any given time. At the initial stage this type

of arrangement is very informal. However when an attendance pattern becomes

established (i.e. the employee has being providing this type of service for a significant

period of time) it is good practice to formalise the arrangement by communicating the

nature and scope of the employment relationship to the employee. This can be done

by way of an overarching relief contract of employment, the main features of which

are as follows:

This contract of employment is not a temporary contract in the conventional sense. It

is a contract which would issue to individuals who agree to place their names on a list

of staff who are available in ongoing capacity to cover service needs which arise on

an ‘if and when’ required basis generally for short indeterminate periods.

While in the main these employees will respond positively to offers of periods of

employment, there is no obligation on the individual to make him/herself available all

the time.

It is important to note that while these individuals are only entitled to such work as is

available, there is no need for a formal termination of the employment relationship at

the end of each stint of employment.

The contract will not confer an entitlement to guaranteed hours / standard continuous

employment, but will confer a permanent employment relationship based on a relief

arrangement. It does not confer a right to a whole time permanent position.

As with any other employees, in the event of an employee’s performance being

unsatisfactory, such underperformance must be dealt with under the disciplinary

procedure and termination must be consistent with due process. The individual’s

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performance should be assessed regularly and if there are serious deficiencies his/her

employment should be terminated ideally before coming within the scope of the

Unfair Dismissals Act 1977-2001.

Sample letter to accompany each period of

employment:

Dear __________,

You are employed to provide locum cover under the terms of your substantive ‘relief contract with the __________ (employer). The requirement for this cover arises from a number of staff (or individual staff member) on sick / annual leave and is expected to last for ___ days / weeks. You will be kept appraised of the likely duration of this period of employment. You will report to _____________ (manager) in respect of this employment, who will advise you of your required hours of attendance / roster times.

Yours sincerely,

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Sample Contract for Relief Staff

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The ______________(Employer) requires staff from time to time to fill vacancies on a relief basis. You have indicated your availability for duty when the exigencies of the service so require e.g. to fill vacancies arising from sick leave, annual leave etc. This contract relates to any such vacancies that may arise. You are not obliged to accept any offer of employment.

Name and address of Employer

Name of Employee: _____________________________Reference Number: _____________________________

Address of Employee: _______________________________________________________________________________________

1. Title You are employed as a relief ____________________________________.


3. Scope of Employment On the termination of any period of employment with the ______________(Employer), any further employment offered to you shall be at the sole discretion of the _______________(Employer). Equally you will not be obliged to accept any offer of employment.

4. Location You will be employed in _____________________ (e.g. Hospital).Your initial assignment will be to _______________________________________ (e.g. service area, ward, etc.). You may be required to work in any service area within the vicinity as the need arises.

5. Reporting Relationship You will report to _____________________________ or other nominated manager. (e.g. Director of Nursing, Head of Services, etc.)

6. Duties An explanation of your assignment shall be communicated to you by your supervisor on commencement of each period of employment. You are required to be flexible and to carry out such duties as may be reasonably required of you within the scope of your employment.


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8. Remuneration The approved salary scale (as at dd/mm/yyyy) for your post is __________________________________________________________________(list points on scale)You will be paid at the ___________ point of the scale, i.e. € ______________ per annum, with an increment date of _________________. This will be adjusted in line with any applicable nationally negotiated increases for your grade.Statutory deductions will be made in respect of PAYE and PRSI (Class A).You will be paid ____________ (e.g. fortnightly) in arrears by paypath. Should you work part-time you will be paid on a pro rata basis.

9. Hours of Attendance You hours of attendance shall be communicated to you on the commencement of each period of employment. You may be rostered over seven days of the week, i.e. Monday through Sunday (insert if appropriate to the grade).Where you are required to work unsocial hours and/or night duty you will be remunerated at nationally approved rates for your grade.You may be required to work overtime, remuneration for which will be in line with nationally approved rates for your grade.

10. Annual leave Annual leave and public holidays are granted in accordance with the provisions of the Organisation of Working Time Act, 1997. The annual leave entitlement for your grade, based on the standard hours of attendance is __________ days per completed year of service. You will be entitled to pro-rata of this amount.

11. Superannuation You will be covered by the terms of the ___________________ Superannuation Scheme. You will be required to contribute to the scheme. Details of the scheme are available from _____________________________.




14. Other employment To ensure compliance with Section 33 of the Organisation of Working Time Act 1997, in respect of double employment and the number of hours worked during a reference period, the ______________(Employer) requests that you advise of any outside employment for which you receive remuneration.You should not engage in any gainful occupation, other than as an employee of the, to such an extent as to impair the performance of your duties or which might be inconsistent with the discharge of your duties as an employee of the _______________(Employer), or which conflicts with the interests of the _______________(Employer).

15. Sick leave

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Sick leave may only arise in respect of absences which occur during contracted periods of employment. The granting if sick leave is entirely at the discretion of the Chief Executive and is subject to compliance with the sick leave policy.

16. Grievance Procedure You have the right to seek redress in respect of any aspect of your terms and conditions of employment under the _______________(Employer’s) grievance procedure. Should you have a grievance you should follow the grievance procedure which will be issued to you on commencement of your employment.


18. Health and Safety The _______________(Employer) is committed to ensuring the safety, health and welfare of its staff and, to this end, a safety statement has been prepared setting out all the safety arrangements which are in force. All staff at the _______________(Employer) also have a legal obligation in relation to safety, health and welfare at work and are required to follow the guidelines contained in the ______________(Employer’s) safety regulations / safety statement. You are obliged to familiarise yourself with the ______________(Employer’s) safety regulations / safety statement arrangements in relation to your own employment and you have a responsibility to adhere to these at all times.


20. Records / Property You shall not remove any records belonging to the _______________(Employer) from the ______________(Employer’s) premises at any time without proper advance authorisation.



22. Notice The _______________(Employer) reserves the right to terminate this contract on the giving of the appropriate period of notice set down by the Minimum Notice and Terms of Employment Act, 1973-2001.You will be required to give the ______________(Employer) at least two week’s notice in writing of your intention to terminate your employment.



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DATE: ……………………………….

SIGNED: ………………………………. (for the _______________Employer )

DATE: ……………………………….

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