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Employment Law

Legal guidance - compliance - software

13 MAR 2012

Fixed term workers

By James Goudie QC

A fixed-term employment contract is converted into an employment contract of indefinite duration.  What amendments can then be made to the terms of the previous contract without infringing the Framework Agreement on fixed-term work annexed to Directive 99/70 ("the Directive")?

According to the Judgment of the ECJ on 8 March 2012 in Case C-251/11, Huet v Université de Bretagne Occidentale ("UBO"), in order not to undermine the practical effects of, or the objectives pursued by the Directive, Member States must ensure that such a conversion is not accompanied by material amendments to the clauses of the previous contract in a way that is, overall, unfavourable to the employee, when the subject-matter of his tasks and the nature of his functions remain unchanged.

Martial Huet ("MH") occupied the post of Researcher at UBO for 6 consecutive years.  He was employed there on a number of successive renewed fixed-term contracts for a continuous period from 1 March 2002 until 15 April 2008.  All the contracts mentioned his duties as a Researcher.

When the last of these fixed-term contracts expired, UBO offered MH an employment contract of indefinite duration.  However, his remuneration would be lower than that previously received by him.

The new contract described his post as Research Officer.  According to MH, however, his duties remained unchanged in practice.

The ECJ restated general principles in relation to fixed-term contracts.  Limits must be placed on successive recourse to such contracts.  They are a potential source of abuse to the detriment of workers.  Therefore there are a number of protective provisions designed to prevent the status of employees from being insecure.  The benefit of stable employment is viewed as a major element in the protection of workers.  It is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers.  The protection measures include that there must be objective reasons justifying the renewal of such contracts, and limits on the total duration of successive fixed-term contracts and on the number of renewals of such contracts.

There are, however, no specific conditions in relation to the conversion of fixed-term contracts into contracts of indefinite duration.  Nonetheless the ECJ considered that if a Member State were to permit the conversion of a fixed-term contract into an employment contract of indefinite duration to be accompanied by material amendments to the principal clauses of the previous contract in a way that is, overall, unfavourable to the employee under contract, when the subject-matter of that employee's tasks and the nature of his functions remain unchanged, it is not inconceivable that that employee might be deterred from entering into the new contract offered to him, thereby losing the benefit of stable employment, viewed as a major element in the protection of workers.

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