Confusion over contract status: ask the expert

I was employed on a fixed-term contract which ended in January last year due to me going on maternity leave. However, the company kept the job open for me and said that my “contract of employment will continue to apply throughout OML and AML unless you or the company give notice of one month’s notice. Your contract will be extended until the company no longer requires the role”. I have since asked for part-time work in a job share capacity with the same job which they have agreed to, but want to cut my overall annual salary because they said it was a consultancy position before and a short-term role. They have also put a new director in charge of the department  and clarified that my fixed-term contract expired so I am no currently covered by any contract. However, they will offer me a new permenant part-time contract (on a much lower salary).  I am confused because I have in writing that my contract of employment will continue throughout maternity leave, but am now being told I don’t have a contract so they are keen to offer me an employed role. In addition the person who was doing my maternity cover and who is keen to do the job share was on a lower salary when she took my job.

Fixed-term contracts are contracts which are made for a specific term, or which terminate on the completion of a task or the occurrence/non-occurrence of a specified event. They are covered under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. This law includes giving fixed-term employees the right not to be treated less favourably than a comparable permanent employee with regards to terms and conditions of employment.

If an employer allows a fixed-term contract to expire and the employee continues working past the specified date then the law will imply continuation of the arrangement as an open-ended contract. This means that the employee’s contract has been extended without a fixed termination date. In the absence of any provision to the contrary this will be subject to the statutory minimum periods of notice. Pre-existing terms and conditions from the original fixed-term contract will form part of the on going implied agreement.

In your situation, it does sound confusing. You state that you were on a fixed-term contract that was ended when you went on maternity leave. However, your employers then stated that they would keep your employment contract “going” during your maternity leave and until further notice. However, you also then state that your employer later said that your fixed-term contract had come to an end, but that they are offering you a permanent position.

It is critical that you establish with your employer whether you are on another fixed-term contract or whether they are giving you a new contract as a permanent employee. This is because overall someone on a fixed-term contract will not have as many employment rights as a permanent employee. It sounds like your fixed-term contract expired when you started maternity leave, but they wanted to keep you on and so extended your fixed-term contract which legally is fine if you were happy with this arrangement. Now it sounds like they are offering you a permanent position in which case they need to clarity in writing that your fixed-term contract is being terminated and give you a new employment contract.

I have not seen a job description of the new role that they are offering you so it is hard to comment on whether it is being offered to you at an appropriate salary. Often fixed-term workers and also consultants do earn higher rates of salary since they do not have the long-term job security of permanent employees. Therefore offering you a permanent position on a lower salary might be on a par with other permanent positions in the company.

You need to understand what the employment contract is that they are offering you going forward – fixed-term or permanent – and then decide whether you want to accept the new permanent position. If you do not, you would need to give appropriate notice period to end the fixed-term contract. If you want to accept the permanent position, then it would be worth discussing the salary with your employer again to understand why it is a significant drop to what you are on now. If there are other permanent employees in the company doing that role on much higher salaries and they are male and all working it full time and you are being offered a lower salary to do it part time then you might have a claim for discrimination.

Might I also suggest that you contact ACAS helpline – it is free and confidential and then you could go through your situation in more detail with someone over the phone who can advice whether you need to seek legal support from a solicitor. Their number is 08457 474747.

Whilst every care has been taken in compiling this answer, WorkingMums cannot be held responsible for any errors or omissions. This information is not intended to be a substitute for specific legal advice.

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