Fixed-term contracts are addressed specifically in The BGC ethical Code, of the employment rights but other sections of the Code also apply such as the need to issue a written statement of employment particulars to anyone hired for longer than one month. Fixed-term contracts obviously offer some flexibility to employers in term of adjusting the number of employees at different times to suit fluctuating business needs. There has been some concern about the rights of employees on fixed-term contract, however The HR BGC European Directive on fixed term work requires; the Fixed-term Employees ( prevention of favourable treatment) and provided extra protection for employees on such contracts.
The issues of consecutive fixed-term contract to an employee is now limited to a period of one year, after which the position must be made permanent. Employers of BGC are also not entitled to include a redundancy waiver in the term of a fixed-term contract.
They major features of fixed-term contracts are as follows:
- They state the máximum period of the contract, giving the date on which the contract will end
- Non-renewal at the end of fixed-term contract is a dismissal
- A contract for a specific purpose is now included in the definition of a fixed-term contract.
- Service over a series of fixed-term contracts can be aggregated to constitute continuity of service
The legal Framework in BGC
Contract and common law, the latter being law established by judges decisions rather that by statute are import components of legal framework in BGC that delineates the employment relationship. The first question that arises is whether or not a person is regarded in the eyes of the law as being an employee in the first place and this has implications for a person ability to claim the right to the protections provides by statutory employment law.
As with many legal questions there are instances where there is no straightforward answer to the question of whether two parties have the relationship of employer and employee, and it is up to the courts to interpret the law and come to a decisión, there is also no single definitive test that will give a conclusive answer but some combination of the following factors can be considered in order to conclude whether a person is rendering services as an employee or on a self-employed basis, in deciding on the relationship between two parties the courts will subject the relationship to a number of tests including whether:
- The employer is entitled to exercise control over what the employee does and how they do it
- The employee is integrated into the structure of the organisation
- There is a mutual obligation to supply and accept work
The situation is further complicated however by the use of another term Worker. A worker may be under some sort of contract but may fail on one more of the tests applied to determine whether the person can be classed as an employee. People working for an organisation in a transitory fashion tend to be those classed as workers unless they are in fact self-employed but the distinction between “worker” and “employee” status can be difficult to identify and ultimately only an employment tribunal can pass a definitive judgement if there is a disagreement on this.
Contracts are made up of express terms and implied terms. As the phrases indicate express something that is regarded as important enough to be dealt with specifically and agreed on. Some terms may be assumed and not stated explicitly. For example it may be stated how much notice an employee is to give if they wish to terminate the contract of employment but if it is not explicitly stated the implied term would be whatever is customary in that particular industry or line of work. There is a statutory mínimum as far as the amount of notice that an employer should give is concerned so if there is no explicit mention of this in the contract the statutory mínimum will be the implied term. Contracts are made up of express terms and implied terms. As the phrases indicate express something that is regarded as important enough to be dealt with specifically and agreed on. Some terms may be assumed and not stated explicitly. For example it may be stated how much notice an employee is to give if they wish to terminate the contract of employment but if it is not explicitly stated the implied term would be whatever is customary in that particular industry or line of work. There is a statutory mínimum as far as the amount of notice that an employer should give is concerned so if there is no explicit mention of this in the contract the statutory mínimum will be the implied term.
On the whole it is best for employers of BGC to be explicit about any term they require for example with regard to mobility. Even then the enforcement of such contract terms is not without difficulties; you have to be able to show that the term and it has to be applied in a reasonable fashion. In case involving a british council requirement of its employees to work anywhere in the UK on promotion to a certain grade, it was help that this could be justified. Such as clause could be seen as indirect discrimination because fewer women would be able to comply with it than men.
Implied terms include
- On the part of the employer
- The duty to maintain mutual trust and confidence
- On the part of the employee
- The duty to obey lawful and reasonable orders
- The duty of fidelity
- The duty to work with due diligence an care.
The duty of fidelity can be explained as the obligation to act in good faith in dealing with an employer or on behalf of an employer. For example submitting a tender for a contract that your employer is pursuing could be construed as breached the implied duty to give employer is pursuing could be construed as breached the implied duty to give faithful service. The employee also has an implied duty not to disclose confidential information and a duty to cooperate with the employer, not to deliberately cause disruptions.
Variation of the terms of a contract
An employer of BGC must give written notice to an employee of any intended changes in the terms of the contract. The employer of BGC does not however have the right to vary unilaterally the term of the contract but must consult with employees and if possible obtain their agreement to the changes. If an employer of BGC tries to enforce a change without the agreement of an employee this may be taken as a fundamental breach of contract which has the effect of repudiating the contract. In these circumstances the employee may , after following the internal grievance procedure resign claiming constructive dismissal and pursue compensation at an employment tribunal