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10 February 2012
Employment Appeal Tribunal (EAT)
Mr Recorder Luba QC
Unless the use of a fixed term contract can be objectively justified, once an employee has been employed on fixed term contracts for more than four years, the employee is treated as permanent (regulation 8 of the Fixed-Term Employees Regulations 2001). But regulation 18 excludes fixed-term employees on training or work experience schemes arranged by the Government. The EAT holds that fixed term contracts excluded by regulation 18 nevertheless count for the purposes of regulation 8.
H was employed on a series of fixed-term contracts. The first of those contracts was under a scheme whereby the Department of Work and Pensions provided work experience in the Civil Service to disabled people. That initial contract fell within the exemption in regulation 18. After 4 years (including that initial contract), H applied to the tribunal for a declaration that she was a permanent employee.
The EAT held that the exclusion in regulation 18 applied only to current contracts and did not exclude previous contracts from counting towards the four years for the purposes of regulation 8. She was therefore granted the declaration.
The status of employment rights on the transfer of an undertaking is an extremely complex area of...