Employees engaged under fixed term contracts have certain rights from the outset of their employment, as contained within the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (“FTER 2002”); for example, the right not to be treated less favourably than a comparable permanent employee.

Other rights accrue after a particular time period, for example, the right not to be unfairly dismissed will accrue after one year’s continuous service either via one fixed term contract or a series of back-to-back fixed term contracts.

Whilst not applicable in this case, it is worth noting that, after four years continuous employment with the relevant employer under fixed term contracts, fixed term employees will become permanent. In this case, the employer will need to advertise the permanent position in accordance with best recruitment practice. It is best equal opportunities practice to advertise the permanent position both internally and externally. Generally, it would only be deemed appropriate to advertise solely internally if there was a genuine reason for doing so e.g. a risk of redundancy. An employer should consider whether there is a good reason for only advertising internally. If a workforce is comprised of people with a particular protected characteristic, internal advertising alone would not help diversify this.

However, under the FTER 2002, fixed term employees have the right to be informed of any permanent vacancies in the establishment at which they work. Information about permanent vacancies should be provided to all staff in a similar way.

In this instance, the employer cannot automatically offer the permanent role to the fixed term employee because they have not met the four year service requirement. The employer could assess if there is a good reason to only advertise the post internally, but in all likelihood this would be difficult to demonstrate. Further, it is possible that other individuals were deterred from applying for the role before because of its temporary nature, but will now be keen because it is a permanent position. Therefore, it would be prudent to advertise both internally and externally in these circumstances.