The legal status of contracts

The following distinctions are legally crucial with respect to the legal status of contracts:

‘Worker’ vs. Employment contracts

All employees are workers, but not all workers are employees. A worker (including the self-employed) merely performs a service in return for a payment. An employee is also expected to:

  1. submit to the control of management (perform duties at set times in set locations)
  2. provide the service themselves (they cannot substitute a friend)
  3. perform the service in an ongoing manner over time.

Following a decision in Carl vs. University of Sheffield 2007, anyone who teaches a series of lessons and engages in student support over time would likely be classed by an Employment Tribunal as an employee.

This is extremely important, because workers who are not employees have few legal rights. Non-employed workers are covered by the Working Time Regulations and the Part Time Workers Regulations, but are assumed not to build up service, be entitled to redundancy pay, or have a right to challenge redundancy.

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Fixed term vs. Permanent contracts (employment contracts)

As noted above, many of the disadvantages some staff face are the use of fixed term clauses in contracts. In the case of HPLs this may not be stated as a fixed term contract but any contract that varies from year to year (say) might be viewed as a series of fixed term contracts of 1 year duration. The presumption of any downwards variation is that it does not consist of ‘suitable alternative employment’ and could be turned down by the employee, with the employer either making the employee redundant or increasing the offer of work. Fair processes of consultation, including collective consultation if several employees are delivering comparable teaching are important here.

The key point about the Fixed Term Employees Regulations 2002  is that it is unlawful for a fixed term employee to suffer a detriment simply because they are fixed term, as against a permanent employee. This detriment would include any refusal to pool fixed term and permanent employees together in a situation where the employer wishes to reduce the salary of, or make redundant the fixed term employee.

Remember: any reduction in salary (e.g. due to loss of teaching hours) makes the contract not ‘suitable alternative employment’ and can be challenged.

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Part time vs. full time contracts

Part time staff face a number of disadvantages compared to full time colleagues in most cases. The Part Time Workers Regulations essentially say that part time staff who are doing work which is comparable with a full-time colleague should:

  1. be paid at the same rate or better
  2. should not suffer any other detriment (e.g. worse holiday entitlement, not offering training offered to full-timers) as a result of being part time
  3. – unless such treatment is ‘objectively justified’.

Note that the different types of frequently used lecturing contracts need to be considered in terms of these three questions.

Usually if the employer says that a contract is fixed term they won’t argue that the staff member is not an employee, but HPLs may be issued with ‘worker’ (‘as and when’) contracts for some or all of their employment.

Clarifying any legal ambiguity is important, because if the employer maintains that staff are workers but not employees then the first task to establish is whether some or all of the workers are in fact employees according to the criteria listed in 1(a)-(c) above. The link to the UCU Sheffield judgment in this case is very helpful in explaining in everyday language what this means for lecturers. Also see chapter 6 of the UCU Hourly Paid survival guide.

Finally, some rights do exist for ‘workers’ as well as employees.


Holiday pay

Very often, employers claim that holiday pay is ‘rolled up’ in the HPL hourly rate and do not itemise holiday pay on pay slips, contracts or letters of engagement.

The Working Time Regulations 1998 state clearly that holiday pay must be paid and must accounted for separately, irrespective of the type of contract. The legislation also states that all workers are entitled to the same annual leave as permanent staff. If it has not been distinguished in payslips or in a letter of contract then the employer is in breach. They are not allowed to argue that it has been “rolled up” into a total amount.

UCL colleagues report that one of the things that encouraged fractionalisation immensely at their institution was the discovery that the institution was failing to properly account for and pay holiday pay, which in their case worked out at more than an 18% deficit. Note that this is a simple case to make from payslips once you know the correct percentage (how to calculate holiday pay).

Once you know the ‘Holiday Uplift Factor’ you can take any salary payment where holiday has not been accounted for in the contract or payslip and simply multiply it by that amount, and send HR the bill! You can then point out to the employer that this expensive mistake would not have happened if the HPLs were given fractional contracts and paid on the payroll system.

Haringey Council’s Adult Learning Service was made to pay back-payments to staff on an identical argument. You can argue that the employer should back-date payments as far back as 6 years, which would be a popular demand amongst staff!

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