fixed-term agreements & probation periods

There are extra rules employers and employees need to know for fixed-term agreements and if they agree to an initial probationary period.

Fixed-term employment

Sometimes employers and employees agree that employment will be for a set period of time (e.g. for six months) or until a certain event occurs (e.g. until a particular project ends) or until work is completed (e.g. until the fruit is picked).

Employers and employees can agree to fixed-term employment where:

• there is a genuine reason for doing so (such as seasonal work, project work, temping work, or where the fixed-term employee is filling in for a permanent employee on leave), and
• the employer advises the employee of those reasons and how or when the employment will end, and does so prior to employing the employee.

In other words, the employer must make these things clear to the employee at the outset. The employer must also set out in writing, in the employment agreement, the reasons for the fixed term and how the employment will end (we provide you examples of wording that might be included in a letter).

Failure to record the fixed-term arrangement in writing means that the employer will be unable to enforce the fixed-term if the employee chooses to contest it.

An employer may not employ someone on a fixed-term agreement where the job is really a permanent one and the employer really wants to avoid having to go through a fair disciplinary or dismissal procedure if there are problems.

Special provisions can apply for the provision of annual holidays, sick and bereavement leave to fixed-term employees. These are outlined in the holidays section, or you can phone the Department on 0800 20 90 20 for information.

Examples of wording to be included in fixed-term agreements

Example 1

"The position is for a fixed-term.

This is because your job will be to prune trees in the west block, and your job will cease when all of the trees are pruned. I estimate that this pruning job will take you and your co-workers two months from start date on Monday 23 November 2009."

Example 2

"The position is for a fixed-term.

The reason for this is that you will be covering for an existing employee who has taken four months' leave. That employee will return to work on 27 April 2009, and will need to be brought up-to-date by you in the week ending 8 May 2009. As a consequence, your employment will cease on 8 May 2009."

Example 3

The position is for a fixed term.

The reason for your employment is to develop a web strategy and build a new website. The project plan for developing this strategy and the site build is attached. Note that the project will end on 28 November 2009. At that time, your employment will cease."

Probation periods

Employers and employees may agree to an initial probationary period. This must be recorded in writing in the employment agreement. Failure to record the probationary arrangement in writing means that the probationary period will be unenforceable if the employee chooses to contest it. If the employer thinks there are problems, the employer still needs to follow a fair disciplinary or dismissal procedure. The employer cannot merely tell the employee to go at the end of the probation period.

Sometimes an employer may ask job applicants to demonstrate their skills prior to making a decision on whether to employ them. Such arrangements may be permissible where the duration and tasks are limited and designed to give the employer a fair opportunity to assess the skills. Employers may not use such an arrangement to get work done without having to pay for it. Read more about probationary periods.

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