If a fixed-term position becomes permanent, should it be offered to the current post-holder, or should the position be advertised first?

There is no legal obligation on employers to offer the current post-holder the permanent position if a fixed-term role becomes permanent. However, employers are required, under reg.3 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034), to give all fixed-term employees the same opportunity to secure permanent positions in the business as they give to permanent employees. Any difference between the availability of internal vacancies to fixed-term staff and their availability to permanent staff would need to be objectively justified.

Regulation 3 also provides that fixed-term employees have the right to be informed by the employer of available vacancies in the business. For these purposes, an employee is "informed" of a vacancy if it is contained in an advertisement that the employee has a reasonable opportunity of reading in the course of their employment, or the employee is given reasonable notification of the vacancy in some other way.

It is therefore advisable for employers to inform fixed-term employees of vacancies in the same way and at the same time as they inform permanent employees, whether this means displaying a vacancy notice in a place where all employees would be expected to see it, or emailing the vacancy list to all members of staff. In particular, where there is a permanent vacancy in the role that a fixed-term employee is currently occupying, it is good practice for the employer to inform them directly.

If there are no other fixed-term employees in the organisation, the employer could offer the permanent post to the current post-holder without advertising it first (although it should be aware of the potential risk of discrimination claims where a position is not advertised externally).