Protection of Employees (Fixed-Term Work) Act*
In a case of Cork County Council and Sheehan FTD 193 a very usual issue arose. This is case which the employee lost.
In this case the employee was a permanent employee of the County Council. On a temporary basis the employee acted in an acting up position. The employee acted in the acting up position for a period which would, if they had not been a full-time employee of Cork County Council having entitled them to a contract of indefinite duration at that contract level.
The Court pointed out that the purposes of the Act is to offer certain protections to fixed-term workers who are by their status, possibly to be treated less favourably than permanent employees. The Court pointed out that is not a purpose of the Act to offer additional protection to permanent employees in respect of temporary arrangements within their contracts of employment.
The Court pointed out that the Court in Louth County Council and Paul Kelly FTD 1320 observed that a complainant who reverts to their substantive grade and who’s employment continues at the end of the Fixed-Term assignment does not enjoy the protection of the Act.
A number of cases were quoted in this regard.
The effect of the legislation is respect of protecting Fixed-Term workers is quite limited when the cases, referred to in this decision are looked at.
Take a position of a person who joins a company straight out of university at an entry grade. They become a permanent employee with the full protection of the Unfair Dismissal Legislation one year later. After two years they are promoted on a Fixed-Term Contract to a higher grade. Let us assume that their entry salary is €25,000 and at the time they get promoted that salary has risen to €27,000. The Fixed-Term Contract they receive is at a much higher grade and they are paid €35,000 per annum while acting up. Let us assume that thereafter every single year the employee is given a new Fixed-Term Contract and it is properly renewed annually for a further period of twelve months. Over a period of fifteen years the person may well rise to a post that is a very senior position in the organisation. If the employer then decides to cease the Fixed-Term Contract even though the person maybe working for ten years in a senior role they can revert them back down effectively to the level they were at as two year entry level employee with a substantial reduction in salary with the employee having no protection whatsoever.
The law on this issue is very clear and the Fixed-Term Legislation is certainly open to be abused by any employer who wishes to do so by putting in place the proper scheme to effectively means that all promotions are on the basis of acting up under Fixed-Term Contracts. This may not be possible in every employment but certainly there would be employments where this would be possible.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees as a proportion or percentage of any award or settlement.