Full employment rights for temporary teachers

Teachers hired on short-term contracts may obtain full employment rights, according to a recent employment appeal tribunal case. Ben Stepney reports

Mr Hussain was employed on a temporary contract to cover for an ill teacher from 25 April 2008 until the summer break started on 8 July 2008. He left on the last day of term but when the school reconvened in September 2008, he commenced employed on a permanent basis.

Mr Hussain's employer, Acorn Independent College, had thought that his continuity of employment commenced when his permanent contract started in September. The appeal tribunal held that Mr Hussain's period of employment started back in April. This was despite the summer break in between, during which both Mr Hussain and the College assumed that his employment had ended and there was no expectation of any further work.

Schools need to be aware of all teachers' continuity of service as certain lengths of service are required to qualify for employment rights, such as protection from unfair dismissal, redundancy payments and entitlement to maternity pay.

Continuity of service was relevant in this case as the college dismissed Mr Hussain in June 2009. If his continuous employment started in September 2008, then he could not bring a claim for unfair dismissal as he did not have one year’s continuous service. If it started in April 2008, then he did have the necessary length of service for such a claim.

What this means
The outcome of this case means that teachers on short-term contracts, for example September to July, may be deemed to have been continuously employed throughout the summer break if they are taken on again at the start of the next school year, even if there was no expectation in July of further work.

It would still apply even if the reason for employing the teacher changed. If a teacher provides maternity cover for one academic year and is then re-employed the following September to, for example, cover a teacher who is absent due to long-term illness, the teacher may be deemed to have been continuously employed throughout the summer break.

According to legislation, a teacher's employment will continue where they are absent from work due to a "temporary cessation of work". Mr Hussain argued that the reason his employment ended in July was because there was no work for him to do during the summer holidays, which was a temporary break in the need for him to teach.

The appeal tribunal agreed. The only reason that the College let Mr Hussain go in July was due to the summer holidays, during which there was no work for him to do. The summer break was consistent with a temporary cessation of work. When the College reconvened in September, the break in the need for him to do work ceased and his continuity of employment was preserved.

This decision has implications for schools that employ teachers on temporary contracts. To re-employ the same teacher after a school holiday may lead to that teacher being able to claim that they have continuous service. Schools should consider this when using the same teacher for consecutive temporary positions. Schools may be able to avoid this risk if the break was primarily due to a reason other than a temporary drop in work. Otherwise, the likelihood is that the school will have inherited the obligations that come with longer terms of employment.

As a general rule, whenever you are calculating a teacher's continuous service, you must look back beyond what you consider to be their start date to see if there were any other arrangements which, taken into account, could give them extended continuous service.

Ben Stepney is an employment lawyer for Thomson Snell & Passmore. 

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