BECTU response to Fixed Term Regulations final consultation

BECTU response to the UK DTI (Department of Trade and Industry) final consultation on Fixed Term Regulations.

1. BECTU's response to the Final Consultation is set out below. This remains broadly in line with our views as set out in our response to the earlier Public Consultation. The headings used correspond to those in the DTI Notes to the Consultation.

   Prohibiting less favourable treatment

2. BECTU welcomes the inclusion of pay and pensions within the scope of the Fixed Term (FT) Regulations.

   Comparators

3. We note that FT workers may be compared to permanent workers in different establishments if there is no such comparator in the same establishment. We would welcome a broader and more flexible approach to comparators, since a number of our members are FT workers who may have problems finding any comparators on this basis (eg front-of-house workers in theatres). We would prefer the possibility of seeking comparators working under the same Collective Agreement OR in the same industrial sector OR hypothetical comparators (as under the discrimination legislation).

   The Employment Package

4. We note the Government's preference for a 'package' approach. However, we continue to favour a term by term approach to comparators in order to prevent any pressure towards undesirable trade-offs. We have a particular fear that FT workers may be disadvantaged in terms of access to pensions under the package approach (eg by longer qualifying periods).

   Written Statements

5. We welcome the entitlement for workers to receive a written statement of the reason for any less favourable treatment.

   Preventing the abuse of successive FT contracts

6. We note the Government's preference for a maximum of 4 years for successive FT contracts. We continue to believe this is an excessively long period. We have significant numbers of members who have suffered from the abuse of rolling FT contracts and we have sought, by means of collective bargaining, to achieve a maximum period of 2 years. We believe this is the maximum time before permanent status should be awarded under any statutory fallback scheme and we further believe there should be a maximum of two renewals in this period.
7. On the issue of what counts as continuity between successive FT contracts, we continue to favour a flexible policy towards gaps in employment (eg the 8 week period allowed for SSP-purposes). We fear that if short gaps are held to breach continuity, employers will simply dismiss and rehire in order to avoid the FT Regulations, and we therefore additionally believe such dismissals should be automatically unfair.
8. We welcome the provision for flexibility by means of collective agreement - but with a strong preference that this be limited to agreements reached by independent trade unions rather than non-union associations whose genuine independence from the employer may be questionable.

   Amendments to primary legislation

   Redundancy Waivers

9. We welcome the abolition of redundancy waivers, which has remained a contractual problem for many of our members.

   Task Contracts

10. We note the provision on task contracts, which could affect some of our members.

    Who is affected?

11. The limitation of the FT Regulations to 'employees' remains our single greatest concern. As a trade union representing large numbers of freelance and casual workers, we have a very strong preference for the broader and more inclusive term of 'worker'.
12. We believe that the Fixed Term Work Directive is clearly meant to apply to a broad definition of 'fixed term worker'. We note that UK employment law already widely uses such a broader approach in, for example, discrimination legislation, the Working Time Regulations and the National Minimum Wage Act. We further believe that the ruling in the European Court of Justice on our own case on the Working Time Regulations gives further support to this approach. We therefore believe that the Government may be vulnerable in law in restricting the FT Regulations to 'employees'.
13. Our specific concerns for individual Schedule D freelance workers are set out in our response to the earlier Consultation. We think the case is particularly strong for workers who operate purely as individuals rather than through any service-company structure. We would simply reiterate that:
    • Such individuals operate in a casualised labour market in circumstances not of their making. Many have been made redundant from staff jobs.
    • They work side by side with other FT workers and staff on the same projects in the same locations for the same companies.
    • They are, by any commonsense interpretation, workers rather than small businesses. In fact they are classic atypical workers for whom the FT Directive is specifically meant to apply. Their exclusion would, in our view, be contrary to the whole thrust of the EU's programme of legislation to cover atypical workers.

    Conclusion

14. We hope you will take note of our concerns - above all on the need to broaden the scope of the Regulations from 'employees' to 'workers'. Without this we fear UK employment law will appear increasingly inconsistent in its treatment of atypical workers - with an increased likelihood of litigation and a reduction in employment protection for many of our most vulnerable workers.