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Was wondering if anybody could advise me on this. I have changed the particulars to try and remain anonymous.
Here is the copy of the email I sent to my division's NUT representative on 10th April 2012 explaining my situation:
Last July I applied for a job at Oakfield Academy advertised in the TES as a Teacher of History on a permanent contract due to start in September 2011. At the time of applying I had two terms’ worth of NQT Induction to complete as I finished my PGCE in July 2010 but could only find a one term maternity cover back home in Cheshire between September 2010 and December 2010 as my first job.
I had an interview at Oakfield Academy on 4th July 2011 and was the successful candidate. However, when offering me the job the then Principal (Sarah Smith) informed me that rather than being a permanent contract as was advertised, the job would be a fixed-term contract initially for one year. She said that the reasons for this were that the job would involve some A Level Teaching and that the school was not sure what Sixth Form numbers would be like in a year’s time or how much money they would have in the ‘current climate’ and that it gave ‘both of us the opportunity to see if we were right for one another’ (which I obviously took to mean that I would be on a trial.) When I asked if the contract would likely be extended after that she gave the impression that it would. Whilst she did not say that I would not have to be re-interviewed, neither did she make any suggestion that this would be what would happen and I was left with the impression that the contract would likely be renewed assuming that in a year’s time there were still sufficient Sixth Form numbers and that I had proved myself competent. Keen to secure a position after 6 months of unemployment I did not hesitate to accept.
In hindsight I now realise that I was being offered a fixed-term contract for the two main reasons that the NUT considers to be unacceptable reasons to issue a fixed-term contract: ‘Where schools anticipate falling rolls or budgetary restrictions and wish to use fixed-term contracts as a means of achieving staffing reduction by not renewing these at a future date’, and, ‘Where schools wish to impose a probationary period upon a teacher before confirming their appointment on a permanent basis’.
I then expected my contract to arrive over the summer holidays but it did not. Therefore after a couple of weeks of starting the job in September 2011 I told the Principal’s PA, that I had not received a contract yet and her reply was ‘No, you won’t have’. I thought that this was rather strange but did not question it further and she did not elaborate so I said ‘Okay’ and left the office. I did not receive a contract until this Thursday 5th April 2012 just gone as will be explained later.
Between September 2011 and January 2012 nothing whatsoever was mentioned to me by anybody at Oakfield Academy about the fixed-term nature of my contract. Then on 24th January I received a letter from the new Principal, Peter Brown (who took over in September 2011) inviting me to a meeting with him on 9th February 2011 to discuss my fixed-term contract which “as I knew was set to terminate on 31st August 2012.
At the meeting with Peter Brown on 9th February 2011 he informed me that the reason for my fixed-term contract had been because I was ‘covering an RE maternity absence’. This came as a great surprise to me because I knew that this was not what I was employed for. There is indeed an RE Teacher at Oakfield Academy who is currently on maternity leave and my original timetable consisted of 3 hours of Y7 RE teaching (this was subsequently reduced to, (and currently stands at) one hour of Y7 RE teaching at the beginning of January) but I was definitely not employed to cover an RE maternity absence. The job was advertised as a ‘Teacher of History’, I taught a GCSE history lesson at interview and the vast majority of my teaching timetable has always been history. The RE teacher who is currently on maternity leave was also working at the school for most of September 2011 at the same time as me and I was not given any of her timetable when she left.
I obviously did not feel comfortable in telling Peter Brown that this was not the reason why I was employed but to try and add some truth to the situation I also told him that Sarah Smith had mentioned Sixth Form numbers, which he agreed was something which the school could not be sure about. He then informed me that my contract was due to terminate on 31st August 2012 and that unless an alternative role could be found by then my contract would end. However, he informed me that he was due to have a Governors’ meeting that same evening at which he hoped to be given authorisation to advertise for several new posts at Oakfield Academy, one of which was likely to be a history teaching job. The position would be advertised externally but I was welcome to apply for it.
The meeting with Peter Brown on the 9th February was confirmed in a letter which I received the next day. The letter stated that; ‘The contract was temporary because of an RE absence and maternity cover. You also suggested that it was temporary due to the issue linked to extra Sixth Form numbers’.
At a whole staff meeting on an INSET Day on 10th February it was announced by the Vice-Principal that the school was to advertise for several new posts including ‘2 history teachers’. (As well as ‘my job’ needing filling, a member of SLT who teaches around half a history timetable has just retired at Easter). A job for a ‘Teacher of History’ (No mention of 2 jobs) was advertised in the TES and I applied for it and was invited to an interview last Monday 2nd April. Unfortunately I was unsuccessful in the interview and the job was offered to one of the external candidates. Whilst the Vice-Principal announced on the INSET Day that they were advertising for 2 history teachers and the Principal said when he met all the candidates last Monday that they were minded to appoint 2 candidates, I know that they actually only appointed one but do not know the reason for this.
I was given my interview feedback on Tuesday by my Head of Department and she explained that I was unsuccessful because the other candidates taught better lessons and I was not the strongest candidate on the day. Now I fully accept the outcome of the interview. I know that I was treated the same as all the other candidates and assessed on the same basis and if I was not the best candidate for the job on Monday then I accept that. I do not wish to question or challenge the interview process.
What I would like some advice on is as to why the position that I have been employed in since September has been on a fixed term contract when it appears to me that there was no justification for this and why it was necessary for me to be re-interviewed for it in the first place. I spoke to my school's NUT rep on Wednesday and explained everything to her including that it is complicated by the fact that I never received a contract. She said that with regards to the fixed-term issue I should contact you but that on an immediate school level she would find out why I had never received a contract and try to get one to me. My school's NUT rep therefore spoke to the Principal’s PA who seemed very surprised that I had not received a contract and promised to get me a copy straight away.
I then received a copy of my contract in my pigeon hole on Thursday. It is dated 13th January 2012 and as well as confirming that I am indeed employed as a ‘Teacher of History’ states that “This is a temporary appointment to cover temporary absences in the department”. It therefore makes no reference to RE or maternity cover. There are to my knowledge no temporary absences in the history department. I was clearly not employed to cover any temporary history absence. I know from conversations with other members of the department that when I started in September I replaced two history teachers who had both permanently left and nobody is ‘returning’ in September to take over my job. I am not sure when the RE teacher who is currently on maternity leave is returning but if I was employed to cover her then why has the school just appointed a new Teacher of History on Monday? The RE teacher when she returns, and the new Teacher of History will clearly be working at the school at the same time and History and RE are seperate departments anyway. There is no Humanities Faculty.
I asked a member of my department if she knew why they only appointed one new teacher on Monday and how they were therefore going to cover the full timetable next year. (As well as the member of SLT on the half timetable retiring, another history teacher has in the last couple of weeks received an internal promotion to SENCO and will have his teaching timetable halved. It seems quite likely therefore that there is going to be a shortfall in the available hours of history teachers). My colleague said she did not know but that they might re-advertise as they have been known to do that in the past. Of course this is purely speculation and they might be able to manage the history timetable without making any further appointments but this seems very unlikely to me. The reason I mention it is because along with the appointment that they did make on Monday (which was a ‘Teacher of History’ it clearly shows that there is a continuing need for history teachers within the school. This further adds to my confusion as to why it is acceptable for me to be dismissed as I have also read Union guidance which says that “If the Induction process has been applied properly and fairly and an NQT fails their Induction, that NQT will not be able to continue to teach in a state-funded school. This is the only reason that an NQT should be denied the opportunity to continue in their post if that post continues to exist.”
Having already completed one term’s worth of NQT Induction between September and December 2010 I only had to complete 2 terms of Induction at Oakfield Academy. I had my final NQT observation at Oakfield Academy last Wednesday (the last day of term) and will therefore be officially ‘signed off’ as an NQT as soon as we return after Easter. I have therefore to all intents and purposes passed Induction so I am being dismissed from my current position on 31st August not only when I have proved myself competent but also when the role is clearly continuing to exist.
As I’m sure you can tell from the length of this Email this has been a very confusing episode for me and I have no idea where I stand with regards to my rights. I know for example that the Union’s disapproval of and guidance against, the use of fixed-term contracts for NQTs is probably just that - disapproval of – and the school probably hasn’t broken the law in doing this. Morally I feel that I have been treated appallingly but legally I don’t know. I do know that when my contract ends on 31st August 2012 this will be ‘a dismissal in law’ and that a dismissal is either fair or unfair. I suppose at the moment the question I most want answering is whether or not this could be unfair dismissal? I certainly do not feel that given all the circumstances described above that I have actually been given a fair reason for this dismissal but most of all I really need some independent and impartial advice.
And here is the reply that I got from the regional NUT office on 8th May 2012 after my divisional representative had passed it on to them:
'Mr Green has been treated rather shabbily. However, in legal termshe has no redress, because:1. He knew in advance that it was a fixed term contract.2. It was a fixed term contract.3. Whether it was cover for RE or a History vacancy is irrelevant.4. NUT guidance is, alas, not the law.5. It is not a dismissal. His contract of employment will expireon 31.08.12.6. He cannot claim unfair dismissal because:(a) There is no dismissal(b) Moreover, he has not worked there for the statutory one yearqualifying period. (His previous employment was between September andDecember 2010, so almost certainly no continuity of employment; andOakfield Academy is an academy anyway.)(c) The academy has not treated him, as a fixed-term employee, lessfavourably than permanent employees doing the same, or largely the same,job. So he does not have protection under the Fixed-term Employees(Prevention of Less Favourable Treatment) Regulations 2002.In trade union terms, understandably Mr Green wants an explanationfrom the academy, regarding RE, maternity cover, why the academy is notfollowing best practice regarding the avoidance of fixed term contracts,and why his employment is going to finish even though the academy isconsidering hiring another History teacher (or even two more, because ofthe SENCO promotion).As an initial step, he should write to the Head asking those sorts ofquestions. If there be no satisfactory response, then perhaps you couldarrange to meet the Head, with Mr Green, to seek answers.'This is supported by the letter dated 13th January which states a temporary appointment. However, as you can see from the last paragraph of Regional's advice they do suggest an intial step.I hope this is of help to you and would want to assure you of our continuing support should you choose to write to the Head as suggested.
I have three queries about this response:
Firstly, why has the regional office suggested in their reply that:
5. It is not a dismissal. His contract of employment will expireon 31.08.12.6. He cannot claim unfair dismissal because:(a) There is no dismissal
When guidance on the NUT website says: "The non-renewal of a fixed-term contract is in law a dismissal for all employment protection purposes. Providing you have one year’s continuous employment (or two years' continuous employment from April 2012), you have the right not to be unfairly dismissed and to make a complaint of unfair dismissal if your employer fails to renew your contract without giving you a fair reason."
Secondly, why have the regional office suggsted in their reply that:
3. Whether it was cover for RE or a History vacancy is irrelevant.
When this is to me the strongest part of my case given that what position I was appointed is fundamental to whether it was justifiable in firstly issuing the fixed-term contract and secondly, providing the grounds to for termination.
Union guidance states:
“If the Induction process has been applied properly and fairly and an NQT fails their Induction, that NQT will not be able to continue to teach in a state-funded school. This is the only reason that an NQT should be denied the opportunity to continue in their post if that post continues to exist.” (Permanent History positions are continuing to exist. RE maternity positions are not)
And thirdly, why have they suggested that:
(b) Moreover, he has not worked there for the statutory one yearqualifying period. (His previous employment was between September andDecember 2010, so almost certainly no continuity of employment; andOakfield Academy is an academy anyway.)
When I will have worked at Oakfield Academy for one year between September 2011 and August 2012
You are not supposed to mention school names on here, let alone names of individual staff, so this thread is likely to be pulled fairly quickly.
These are questions you should be asking your union as they are the ones who have given a legal opinion.
frustum - OP says he has changed the names to keep it anonymous.
Whilst I have nothing but sympathy for the OP, the moral of this tale is 'make sure you get a contract before, or at the very least, as soon as you start working somewhere'.
Ah - missed that bit! It was a long post...
Sorry to say I concur with the NUT advice: you have a fixed-term contract. 'Dismissal' according to the ERA 1996 is one of 3 things: the employer ends a contract (by sacking, early retirement, erdundancy etc); the end of a fixed-term contract; constructive dismissal. The fact that the end of a fixed-term contract amounts to 'dismissal' in law does not imply that you have been unfairly dismissed.
You do have the statutory right to be given a reason for the dismissal. In your case it will say: "End of fixed-term contract".
I don't think that the fixed term contract makes any difference; you are still being dismissed when it ends, and the fact that you are being replaced means that there is no redundancy argument. Sadly, the fact that you have worked for less than a year means that you cannot claim for unfair dismissal, unless you can show that you are being discriminated against. There is nothing in your original post to suggest this.BTW, the time you need to have been employed for to claim unfair dismissal is now 2 years for anybody employed after 5 April this year.
Unfair Dismissal - Only 5 fair reasons for dismissal!
JiceUnfair Dismissal - Only 5 fair reasons for dismissal!
True, but you can't claim for it if you have worked there for less than a year.
See under "Going to an Employment Tribunal"
I hope you resolve your situation.
How kind of you to dredge up threads that have been resting peacefully.
It's ok to dredge up old threads if the situation is applicable to you also. This is an archive. Someone else may find the information useful. Someon e else may be in the same situation.
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