IPPN

Published: 21 April 2010

Fixed-term, specific-purpose and contracts of indefinite duration (CIDs) can be a source of confusion when it comes to appointing temporary teachers. In May 2009, on behalf of IPPN, David Ruddy researched this issue in detail and formally sought a legal opinion. The purpose of this was to clarify once and for all what is best practice in relation to the appointment of temporary teachers.

It is without doubt a complicated area as it is subject to a number of different Acts of legislation. Bearing this in mind, the professional guidance that IPPN offers to Principal teachers is based on the knowledge and expertise provided by experts in both education and employment law: David Ruddy, Barrister, Principal Teacher and legal advisor to IPPN, Ian O’Herlihy, Solicitor at Mason Hayes & Curran along with Barristers Denise Brett, Emer Woodfull, and Tom Mallon.

The answers to the following frequently-asked questions have been compiled by David Ruddy as a quick reference guide.      

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Seán Cottrell & Pat Goff

Fixed-term and Specific Purpose Contracts in plain English

Q1. Why all the fuss about fixed-term/specific contracts?

Ans: In the past, teachers were employed by some Boards of Management (BoM) on a temporary basis to fill what were permanent posts. The idea was that the temporary teacher could be let go at the end of the school year, or indeed years, if the BoM were not happy with the temporary teacher’s performance. It was a matter of schools hedging their bets. In recent years, employment legislation has outlawed this practice and gives more protection to teachers. If a school employs a teacher on a temporary basis it must be explained in the contract why the post is temporary in nature and why the Unfair Dismissals Act does not apply to the teacher. Temporary posts are now referred to as ‘fixed-term’ or ‘specific purpose’ contracts.

Q2. What is a fixed-term contract?

Ans: A Fixed-term contract applies where a teacher is employed on a temporary basis to replace a teacher engaged in a job-sharing, career break or secondment arrangement. In each case, the date that the contract finishes is known to all in advance.
 
Q3. What is a specific purpose contract?
Ans: A specific purpose contract is usually for a shorter period of time than a fixed-term contract and the end date is not known or is uncertain. This type of contract covers maternity/adoptive leave, sick leave, parental leave and unpaid leave – the list is not exhaustive. In this case, it is the nature or purpose of the contract that gives rise to a vacancy that determines when the contract ends.

Q4. What is a ‘contract of indefinite duration’?

Ans: A contract of indefinite duration (CID) is similar to a permanent contract. If a teacher is employed for a period of four consecutive years by a school and there is no specific purpose for the employment given then he/she may be entitled to a CID.

Q5. What has unfair dismissal to do with all of this?

Ans: Unfair Dismissal legislation, subject to a few exceptions, will only apply to employees who have at least 52 weeks’ continuous teaching service. Claims for unfair dismissal do not apply where the only reason for the contract terminating is:
  
(a) The expiry of the temporary-contract of employment which might be, for example, the date a career break finishes
(b) The purpose of the temporary-contract no longer exists i.e. the teacher has returned from maternity leave. Contracts which are not subject to unfair dismissal legislation should state so and contain a waiver clause.

Q6. What is a waiver clause?

Ans: A waiver clause states that the Unfair Dismissal Act does not apply to the contract as, for example, the teacher on the fixed-term contract is replacing a teacher on authorised leave and the post cannot be filled on a permanent basis, or the post is, for example, a language support role which is allocated to the school on a temporary basis.

Q7. Why have a written contract?

Ans: A contract is an agreement reached between a teacher and the BoM. Each teacher employed for a month or more of continuous service must have a written contract. The contract must be signed by the teacher and the Chairperson of the BoM.

Q8. If a teacher on a fixed-term contract for one year is available for a subsequent year and, if it happens there are some new fixed-term posts available in the school for the subsequent year, is this teacher entitled to one of these posts?

Ans: No. There is nothing in the legislation which requires a BoM to offer this teacher a second or subsequent contract just because the BoM has an ongoing requirement for a fixed-term teacher. However, when a post is advertised, the teacher on the temporary contract should be made aware in writing that the post is advertised

Q9. In a situation where there are a number of teachers on fixed-term contracts and the BoM has fewer fixed-term posts to fill in the following year, what process should the BoM use to decide which teacher(s) should be offered the new fixed-term contracts?

Ans: It is open to the BoM to fill fixed-term contracts by whatever methodology it thinks appropriate. This includes public advertising, short-listing and interviewing and assessment of suitability based on pre-determined criteria. The school is entitled to appoint such teachers as it thinks appropriate for such posts. The mere fact that a teacher has been employed by the BoM under a fixed-term contract in the past, or is currently working under such a contract, gives him or her no rights whatsoever wider than the population as a whole.

Q10. Can a BoM advertise a new fixed-term vacancy even if there is a teacher currently employed on a fixed-term contract who is available to take up the new contract?

Ans: Yes, the BoM is fully entitled to advertise any vacancy that arises in the school. Other than short-term vacancies requiring a substitute teacher, recruitment best practice should be followed in all cases i.e. public advertising, agreed selection criteria, short-listing, interview and appointment on merit. It is important to note that in the event of the vacancy being advertised publicly, the advert should also be prominently displayed in the staffroom and imparted personally to any fixed-term teacher in the school, including those on leave.

Q11. Is there such a concept as ‘notional seniority’ in relation to teachers on fixed-term or specific purpose contracts?

Ans: No. The concept of seniority applies to permanent contracts only. There is nothing in legislation which gives rise to the concept of seniority, notional or otherwise, for fixed-term or specific purpose contracts.