Ireland: The Protection Of Employees (Fixed Term Work) Act 2003 – A Comment On Treatment Of Teachers

Last Updated: 27 July 2015
Article by Thomas Dowling

The purpose of the Protection of Employees (Fixed Term Work) Act according to the Department of Trade & Employment is:

  1. To provide for the improvement of the quality of fixed-term work by ensuring the application of the principle of non-discrimination (i.e. fixed term workers may not be treated less favourably than comparable permanent workers) and;
  1. To provide for the removal of discrimination against fixed term workers which such exists and the establishment of a framework to prevent abuse arising from the use of successive fixed term employment contracts.

The general rule under the Protection of Employees (Fixed Term Work) Act 2003 is that once an employee has completed 3 years continuous employment with his employer then the employer may renew the contract for a fixed term on one further occasion only and that renewal may be for a period of no longer than 1 year (though exceptions exist for "objective" grounds). 

This requirement has sometimes created difficulties in the public sector.  The reason for this would seem to be caps that have existed on the number of permanent staff that can be employed and budgetary restrictions.

It appears to be common practice in some schools, to employ a large number of teachers on part-time contracts.  In the fourth year it has been claimed that some schools renew these contracts for a reduced number of hours, which in the fourth year become CID contracts or "contracts of indefinite duration" thanks to Section 9 (3) of the Act.  It has been claimed that some schools give teachers less than 18 hours per week in the fourth year.  This may be because under a union agreement, these hours subsequently kick up to an entitlement to the maximum 22 hours that a teacher can work i.e. it becomes a permanent full-time contract.  The number of permanent full-time staff is also thereby kept down.

So is this legal? 

The obvious answer is that discrimination against part time workers is prohibited in law by the Protection of Employees (Fixed Term Work) Act 2001.  However, discrimination in these circumstances can be difficult to prove. 

Do the teachers have any recourse? 

Section 9 (1) says that where a fixed term employee complete his third year of continuous employment, his fixed term contract can only be renewed once more and for a period of no longer than one year.  So the part-time teacher's hours are limited to, say for example a 12, hours per week in the fourth year, which becomes a CID for 12 hours.

In the fifth year, some teachers experience a situation where the school is not concerned about limiting their hours, potentially due to a misinterpretation of the Act, so they often push the hours back up towards and even above 18 hours per week to suit the school's needs.  The school treats the surplus hours as a new contract.

In essence there is one contract in this theoretical example for 12 hours that is in its fifth year and a new contract for the balance hours that is in its first year, so they argue the Act does not apply to this second contract.

In the writer's view, this is not what the legislation says.  The employee has completed his/her third year and his fourth year, and Section 9(1) prohibits the additional contract from being limited in time to 12 months and therefore, in accordance with clause 9(3) the 12 month limit on the contract is deleted and it is deemed to be a contract of indefinite duration.  My interpretation of the Act is that the teacher therefore has a contract of indefinite duration for the hours contracted to him/her after the fourth year, unless there are stated objective grounds why this should not be the case.  It will be interesting to find out what the Labour Court says on the matter.

Section 9(3) of the Act states:

"Where any term of a fixed term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration".

Clause 9(2) states that the aggregate duration of two or more continuous fixed term contracts cannot exceed 4 years, so in the writer's view an attempt to extend it to 5 years, automatically transforms the contract into a contract for indefinite duration by virtue of Section 9(3).

So what does the caselaw say?

In the case Trinity College Dublin v. Elaine Moriarty, determination FTD125, the Labour Court considered the position of a part-time lecturer who had worked on the basis of four fixed term 12 month contracts from October 2003 to September 2007 for Trinity College Dublin.  Thereafter, the employee successfully applied for a research fellowship vacancy and was awarded a 3 year contract from November 2007 to September 2010.  An additional 1 year contract as a temporary lecturer was then issued in October 2010.  The employee claimed a contract of indefinite duration on the basis that Section 9(3) converted the 12 month fixed term contract commencing in October 2010 into one of indefinite duration.

The employer argued that these were separate and distinct contracts of employment, one being a part time lecturer, and the other a research fellowship and that the Act should not apply.

In rejecting this argument, the Labour Court commented that if the employer believed that these were separate contracts (and they were certainly separate roles) then it should have issued separate contracts and not rolled the jobs into one contract.  It seems that these comments have been interpreted by some schools with a view to attempting to give a legal basis to their approach.  It is the writer's view that these observations of the Labour Court do not alter the wording or intent of the legislation set out above.

In that case the Labour Court held that the provisions of Section 9(2) of the Act were met by the fixed term work contract of employment that was issued to the complainant by the respondent on 1st October 2007.  On that date the aggregate duration of the successive fixed term contracts of employment under which she worked for the respondent exceeded four years duration.  Section 9(3) therefore applied and transformed the fixed term contract into a contract of indefinite duration.  It would appear to the writer that the same argument should defeat the approach that has been adopted by some schools in some cases as set out above.  We look forward to clarification by the Labour Court when further cases come to hearing.

Employees should also be aware of the 6 month time limit within which to refer a complaint to a Rights Commissioner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.