In ensuring no less favourable treatment between fixed-term and comparable permanent employees can an employer balance a less favourable condition against a more favourable one?
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) state that fixed-term employees must not be treated less favourably, on grounds of their fixed-term status, than comparable permanent employees. Less favourable treatment in relation to particular contractual terms will be justified if the terms of a fixed-term employee's contract taken as a whole are at least as favourable as those of a comparable permanent employee's contract of employment. An employer will therefore be able to balance a less favourable term against a more favourable one, provided that it ensures that the fixed-termer's overall package is not less favourable than that of the permanent employee. For example, a fixed-term employee might be entitled to fewer days' holiday than the comparable permanent employee, but receive the value of this extra holiday entitlement as increased salary.