Having worked in HR for over 10yrs, I have recently established my own HR Consultancy under the trade name Instant HR. I am also working on developing some HR software aimed at the SME sector.
Once you have been at an employer 4yrs, Fixed Term Contracts do not matter, you have the same rights as anyone else. If you apply for a 2yr role they have only a few options:
1. Decline you for the role. They could justify this on the basis you're permanent and they want a FTC.
2. Accept you to the role. At the end of the role they would have to manage you as per someone with 12yrs service. Because you optionally moved to the role it is likely they could justify a redundancy and justify not using a selection pool (there is an argument that you have opted into a selection pool by taking the role). The law on redundancy etc... is grey and there can be many variables. What is clear is that you have the rights of someone with the accumulated service (e.g. you cannot sign away your statutory rights).
That's the legal bit, but the better approach is to suggest to your manager that it should make no difference to them if they fill this role for 2yrs, or find a backfill for your role for 2yrs. Of course if they are discouraging your application, it might be that they are trying to politely suggest you're not suitable for the job (few companies hold back suitable candidates). To test if they don't think you're suitable, appear approachable and open to feedback.
She does not have to declare a disability - this is to prevent employers evading the hiring of disabled workers. In fact, I would be very wary of even asking about disabilities before hiring someone, as the question may look discriminatory. Being registered disabled is not an employment issue, if you are registered disabled it indicates you are more likely to be considered disabled for employment purposes, if you're not registered disabled it doesn't indicate anything as many disabilities are unseen. You should consider does she have a "long-term physical or mental impairment that might have an adverse effect on her ability to carry out day to day activities"? Your answer to this will tell you if she is disabled. What you need from either her, her disability advisor, or her GP is not a statement of whether she's disabled (they might use the wrong disability test - use the one above), but a statement of what effect her condition has on her ability to work. If she is disabled, then you need to consider reasonable adjustments to enable her to do her job. Your judgement on what reasonable is, is what Tribunals are fought over. She should be an expert in her disability, so the easiest starting point is to ask her what adjustments are needed? (particularly if you're a smaller organisation with less expert resources). Make the reasonable adjustments requested, do not make unreasonable adjustments (again, the word "reasonable" is Tribunal worthy). If reasonable adjustments are not possible to enable her to perform the job, and she has started employment, the usual course would be to look at redeployment opportunities. In your particular circumstances, if reasonable adjustments are not possible to enable her to start the job, then I would assume she had no intention of fulfilling the contract of employment. An implied term of any contract of employment is that you intend on fulfilling your side of it. On this basis, I would write to her and say "on the basis reasonable adjustments that would enable you to fulfil your contract of employment were not possible, we have to assume that you had no intention of fulfilling your contract of employment. On this basis I consider the contract null and void." Its worth taking employment law advice on the last part. If she's signed the contract, then usually there is a contract so you would need to give contractual notice, however I believe that if she never intended to fulfill the contract, signature or no signature the contract was never valid (a contract of employment is more than just a piece of paper).
I am having a similar dilemma. I'm rewriting a maternity policy, and I want to write "you" instead of "the employee" in the policy, so it becomes a more engaging read (its pretty dry material to start off with). I'm not sure if there is a legal hole I'm dropping into, or if this is just a stylistic issue?
i.e. If you meet the qualifying criteria you will be entitled to... rather than Qualifying employees are entitled to...
My discussion replies
Once you have been at an employer 4yrs, Fixed Term Contracts do not matter, you have the same rights as anyone else. If you apply for a 2yr role they have only a few options:
1. Decline you for the role. They could justify this on the basis you're permanent and they want a FTC.
2. Accept you to the role. At the end of the role they would have to manage you as per someone with 12yrs service. Because you optionally moved to the role it is likely they could justify a redundancy and justify not using a selection pool (there is an argument that you have opted into a selection pool by taking the role). The law on redundancy etc... is grey and there can be many variables. What is clear is that you have the rights of someone with the accumulated service (e.g. you cannot sign away your statutory rights).
That's the legal bit, but the better approach is to suggest to your manager that it should make no difference to them if they fill this role for 2yrs, or find a backfill for your role for 2yrs. Of course if they are discouraging your application, it might be that they are trying to politely suggest you're not suitable for the job (few companies hold back suitable candidates). To test if they don't think you're suitable, appear approachable and open to feedback.
I hope the above helps.
I have an appraisal form you can have. Message me your email and I'll send it.
She does not have to declare a disability - this is to prevent employers evading the hiring of disabled workers. In fact, I would be very wary of even asking about disabilities before hiring someone, as the question may look discriminatory.
Being registered disabled is not an employment issue, if you are registered disabled it indicates you are more likely to be considered disabled for employment purposes, if you're not registered disabled it doesn't indicate anything as many disabilities are unseen.
You should consider does she have a "long-term physical or mental impairment that might have an adverse effect on her ability to carry out day to day activities"?
Your answer to this will tell you if she is disabled. What you need from either her, her disability advisor, or her GP is not a statement of whether she's disabled (they might use the wrong disability test - use the one above), but a statement of what effect her condition has on her ability to work.
If she is disabled, then you need to consider reasonable adjustments to enable her to do her job. Your judgement on what reasonable is, is what Tribunals are fought over. She should be an expert in her disability, so the easiest starting point is to ask her what adjustments are needed? (particularly if you're a smaller organisation with less expert resources). Make the reasonable adjustments requested, do not make unreasonable adjustments (again, the word "reasonable" is Tribunal worthy).
If reasonable adjustments are not possible to enable her to perform the job, and she has started employment, the usual course would be to look at redeployment opportunities. In your particular circumstances, if reasonable adjustments are not possible to enable her to start the job, then I would assume she had no intention of fulfilling the contract of employment. An implied term of any contract of employment is that you intend on fulfilling your side of it.
On this basis, I would write to her and say "on the basis reasonable adjustments that would enable you to fulfil your contract of employment were not possible, we have to assume that you had no intention of fulfilling your contract of employment. On this basis I consider the contract null and void."
Its worth taking employment law advice on the last part. If she's signed the contract, then usually there is a contract so you would need to give contractual notice, however I believe that if she never intended to fulfill the contract, signature or no signature the contract was never valid (a contract of employment is more than just a piece of paper).
I am having a similar dilemma. I'm rewriting a maternity policy, and I want to write "you" instead of "the employee" in the policy, so it becomes a more engaging read (its pretty dry material to start off with). I'm not sure if there is a legal hole I'm dropping into, or if this is just a stylistic issue?
i.e. If you meet the qualifying criteria you will be entitled to... rather than Qualifying employees are entitled to...