Is your fixed term contract valid?
Recent case law places more obligations on employers offering fixed term contracts
A recent High Court case has set down criteria which must be considered by employers when offering a fixed term contract. The case arose from a much contested dispute between the Board of Management of Malahide Community School and a teacher. The teacher successfully brought an unfair dismissal claim against her employer. The school appealed the finding of the Labour Court that the teacher had not freely entered into a fixed term contract with full knowledge and informed consent of its implications. The High Court, in rejecting the appeal, set out a number of criteria which must be considered by employers when offering a fixed term contract.
A fixed term contract does not exist where contingencies are present
That prior informed consent is required for fixed term contracts
That section 2(2)(b) of the Unfair Dismissals Act 1997 (the Act), is a waiver and not an exclusion, and
That this waiver only applies at the commencement of an employment contract
Contingencies present equals no fixed term contract
It makes sense that if the renewal of the contract depended on contingencies, then it is not certain and therefore not a fixed term contract. Judge Simons held that a contract which could be renewed was was not certain and therefore was not of a fixed term.
If you are an employee on a “fixed term” contract containing contingencies, you should have it closely examined to see if it can be argued that it is not a fixed term contract. It could be claimed that any dismissal arising from that “fixed term” contract is an unfair dismissal. If in doubt, please contact us and we can review your contract.
Prior informed consent is required
For an employee to legally waive their rights under Irish employment law they must be adequately advised prior to signing the contract. The Judge emphasised that a waiver cannot be retrospective. It must be given after obtaining adequate advice at the commencement of employment.
For more on fixed term contract see
Does this affect me as an employee?
If you are in existing employment and have accepted the offer of a new fixed term contract by your employer this will be of interest to you. You should contact us to review your contract to see what your next step should be. We can all learn from this teacher.
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