S3 Fixed-term Employees -The Basis of Unfair Dismissal Law

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) (“the 2002 Regulations”) give fixed-term employees clear statutory protection.The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) (“the 2002 Regulations”) were introduced to make sure fixed-term workers are not treated as second-class citizens.

Regulation 3 – Less Favourable Treatment

The starting point is simple: you should not be treated less favourably than a comparable permanent employee. That means:

• Your pay and benefits should not be worse

• You should have the same access to training and promotion

• You should be allowed to apply for vacancies and internal transfers on equal terms

So, if a permanent colleague is moved into a role that you were refused, this can amount to “less favourable treatment”.

Regulation 5 – Using the Written Statement Tactically

Here’s where things become tactical. Proving that your contract wasn’t renewed because you asserted your rights is rarely straightforward. Employers don’t usually say, “we ended it because you complained”.

That is why Regulation 5 exists. If you think you’ve been treated less favourably, you can request a written statement from your employer, asking them to explain why.

If the employer:

• does not reply, or

• gives a vague or evasive response,

then the tribunal may draw any inference it thinks fair — including that the employer has breached your rights under Regulation 3.

By making this request while your contract is still live, you force the employer to explain themselves. If they dodge the question, that very silence or evasiveness can be used against them later.

Regulation 6 – Protection from Detriment and Dismissal

If your fixed-term contract is not renewed because you asked for equal treatment or made a Regulation 5 request, then Regulation 6 applies.

That makes the non-renewal an automatically unfair dismissal under the Employment Rights Act 1996. And unlike most unfair dismissal claims, you don’t need two years’ service to bring it.

Timing Really Matters

The timing of your actions is everything.

• If you make the request while you are still employed, the protections bite.

• If you wait until after the contract has already expired, the protection is much weaker.

That is why the safest approach is to act before the end date is reached.

Scenario Continued

Returning to our example:

1. You apply for a transfer.

2. A permanent colleague is accepted, you are refused.

3. You write to your employer under Regulation 5, asking why you were refused.

4. The employer either ignores you, or gives a half-hearted reply.

5. Your contract ends without renewal.

At this point:

• The refusal to transfer you is less favourable treatment (Regulation 3).

• Your written request is an assertion of rights (Regulation 5).

• The failure to renew your contract may now count as an automatically unfair dismissal (Regulation 6 + ERA 1996).

📌 Practical Tip
Don’t leave it too late. If you believe you are being treated less favourably, put it in writing before your contract expires. Keep a copy of your request. Even if your employer brushes it off, that lack of a proper answer can strengthen your case later.

Conclusion

Fixed-term employees have the same dignity and protection as permanent staff. The 2002 Regulations were designed to stop employers quietly shutting people out of opportunities because of the end date on their contract. By using the written statement procedure and asserting your rights before expiry, you place yourself firmly under the law’s protection. If your contract is not renewed for that reason, the dismissal will be automatically unfair.

Practical Checklist

📌 Assert your rights before the contract ends
📌 Use Regulation 5 to request a written statement if you suspect less favourable treatment
📌 If the employer fails to reply, or responds vaguely, the tribunal can infer a breach
📌 If your contract is then not renewed, you may claim:

• Less favourable treatment under Regulation 3

• Automatically unfair dismissal under Regulation 6 + ERA 1996