Teachers’ Fixed Term Contracts-The Essentials

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Fixed term contracts are very common in the teaching profession in Ireland.

teacher-fixed-term-contract

This is due to a number of factors including

• The DES (Department of Education and Skills) sanctioning temporary teaching posts for a school year, rather than approving permanent posts or contracts of longer duration

• Teachers taking leave from the school on a career break, maternity leave, sick leave, carer’s leave, parental leave, job sharing, secondment etc. with the subsequent need for the school authority, such as the  Board of Management, to find a replacement.

This replacement will be given a fixed term contract.

The teacher’s contract of employment will be with the managerial authority of the school such as the VEC committee or Board of Management.

In the primary education sector the Board of Management of the school will be the employer, even though the teacher is paid by the DES.

For Boards of Management in the Primary education sector, all the normal rules and laws discussed elsewhere on this site apply when granting a fixed term contract. Additionally, there may be the requirement to make a job offer subject to certain conditions, eg

  • approval of the Patron (where necessary),
  • Garda vetting,
  • registration with the Teaching Council,
  • a certificate to teach Religious Education (if appropriate),
  • pre employment medical screening by Medmark,
  • and approval of the Minister for Education and Skills.

See also equality and discrimination in the workplace which sets out the legal grounds for schools to discriminate on religious grounds when taking on employees.

Fixed term contracts for teachers will fall into one of two categories:

• Fixed term where the duration of the contract is known or

• Specified purpose contract where the end date may be uncertain (such as maternity leave cover or illness cover).

Fixed term contracts for teachers will normally not exceed the school year, which runs from 1st September to 31st August.

Objective Grounds

It is critically important for the Board of Management to inform the teacher in the contract why they are being employed on a temporary basis, rather than being offered a permanent contract or a contract of indefinite duration, and how the contract will be determined/terminated.

Here is an example of a clause you may use when granting a contract to a teacher who will be covering for a teacher on a career break:

This contract is a Fixed-Term Contract of …. duration and is offered due to the absence of a permanent teacher in the school who is currently on career break. The contract will end on the termination of the career break. A career break can be sanctioned for a period of 1 year with annual application to renew up to 5 years.

In addition, where the Board decides to renew a fixed term contract, it is vital to inform the teacher in writing beforehand why it is not offering a permanent contract and to set out the objective justification for this.

This notice in writing should be given to the teacher at the latest by the date of renewal.

Renewal of Fixed Term Contracts

Renewal of a fixed term contract may lead to the entitlement to a contract of indefinite duration arising. (See below to see the circumstances where a CID may arise)

All of the other protections and obligations arising from the Protection of Employees (Fixed Term Work) Act 2003 will, naturally apply.

The Contract of Indefinite Duration (CID)

A contract of indefinite duration (CID) is similar to a permanent contract but is not defined in statute. It arises by operation of law under the Protection of Employees (Fixed Term Work) Act, 2003.

contract-of-indefinite-duration

The Protection of Employees (Fixed Term Work) Act, 2003 provides under section 9(3) that a contract of indefinite duration will arise by operation of law if a contract is awarded in breach of sections 9(1) or 9(2) of the act.

What this means as follows: If an employee is employed on 2 or more successive fixed term contracts in continuous employment for a period of 4 years then any attempt to give that employee a further fixed term contract is unlawful and void and the employees is entitled to a contract of indefinite duration.

There is one major caveat here though: if the employer can justify the award of a further fixed term contract on objective grounds then there is no breach of the Protection of Employees (Fixed Term Work) Act, 2003 and no entitlement to a contract of indefinite duration.

Objective Grounds

What are objective grounds justifying the renewal of a fixed term contract and not the granting of a contract of indefinite duration?

Objective grounds are grounds that are objectively justifiable by the employer:

1. They must correspond to a real need and legitimate objective of the employer
2. They must be appropriate to achieve this objective
3. They must be necessary to achieve this objective.

If an employer intends renewing a fixed term contract, and not granting a contract of indefinite duration, then the employer must state in writing to the employee the objective grounds for a further fixed term contract.

This written notice must be given to the employee at the date of renewal at the very latest.

Continuous Employment

Continuous employment is defined in the First Schedule to the Protection of Employees (Fixed Term Work) Act, 2003 and the issue of whether employment has been continuous is not entirely straightforward.

The Rights Commissioner service and the Labour Court have held that breaks of up to 3 months were not sufficient to break an employee’s continuous service.
Therefore it is strongly recommended that if you are an employer or employee you should obtain legal advice from a solicitor who is experienced in employment law matters.

(See Department of Education and Skills-employing a teacher )

For a more detailed look at fixed term contracts

If you spend too much time drafting contracts for your school employees, you may be interested in our contract drafting service.

By Terry Gorry Google+

Education Law Brochure

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