1. This
is an appeal by way of case stated from the decision of an industrial tribunal
given on 7 September 1999, whereby it found that the respondent Miss Victoria
Patefield had been discriminated against by the appellant Belfast City Council
under Article 12 of the Sex Discrimination (Northern Ireland) Order 1976 (the
1976 Order), by failing to make her former post available to her on her return
from absence on account of maternity, and made an award of compensation in her
favour. The appeal raises issues relating to the rights and remedies of
temporary contract workers against the persons or bodies for whom they carry
out work when sent by their agencies.
2. The
respondent commenced work with an agency called Grafton Recruitment in or prior
to 1995. She was sent by them in February 1995 to a post with Belfast City
Council, where she worked as a clerical officer in the Cemeteries Department in
an office located in the City Hall. She appears to have been very satisfactory
in this post, and when Grafton Recruitment lost their contract to supply the
Council with temporary staff in the summer of 1997 to another firm named
Diamond Recruitment her line manager asked Diamond Recruitment to take her on
to their books and keep her in the post. She stayed on in the Cemeteries
Office of the Council and by March 1998 she was the longest serving person
working in that office. The tribunal found that if she had not gone off work
she would undoubtedly have remained in that post.
3. We
were furnished by agreement with copies of the contract into which the
respondent entered with the firm Diamond Recruitment. This is described in the
text as a contract for services, but the tribunal held that the description was
not conclusive and that it should look at the realities of the relationship
between the parties. The essence of the arrangement was that the firm would
endeavour to obtain suitable assignments for the respondent as a "temporary
clerical officer/WPO" and would pay her at the rate of £4.00 per hour for
all work done by her. She was entitled to that payment only when actually
working and by clause 4 the respondent acknowledged that it was in the nature
of temporary work that there would be periods when no suitable work was
available and that the firm would not be liable to her if it failed to offer
her work opportunities. Clause 6 provided that she was not entitled to any sick
pay
or holiday pay. Under clause 8 the respondent was not obliged to accept any
assignment offered, though clause 9 gave the firm the option of terminating the
contract if she declined to accept any offer of work. If she did accept an
assignment, the respondent was obliged to accept the direct supervision and
instruction of any responsible person in the client's organisation.
4. The
tribunal held, relying on
McMeechan
v Secretary of State for Employment
[1997] ICR 549, that the respondent's contract with Diamond Recruitment was a contract
of service and not a contract for services, notwithstanding the terms in which
it was framed, and therefore she was an employee of that firm. We do not need
in this appeal to express a view on that difficult issue, which is replete with
fine distinctions. Diamond Recruitment did not appeal against the small award
made against them by the tribunal for failure to pay the
respondent
during her absence for pre-natal check-ups. Counsel for the respondent, while
contending as part of her case that the respondent was employed by the Council,
did not seek to argue that her relationship with Diamond Recruitment was a
contract for services, nor did the respondent ask the tribunal to include any
question about that relationship in the case stated. The Council did not seek
to challenge the tribunal's finding about the relationship by asking the
tribunal to include a question about that, nor did it present any argument on
those lines to this court. We shall therefore proceed on the assumption that
the respondent was at all material times an employee of Diamond Recruitment.
5. The
respondent discovered in September 1997 that she was pregnant. She informed
her supervisor that she was expecting the birth of a baby in May 1998 and
proposed to work on until March 1998. The Council brought in a permanent
member of their staff to replace her when she went off, and the respondent
assisted in training this person from January 1998. By a letter dated 16
February 1998 the respondent wrote to the Council giving formal notice of her
intention to be absent for the birth of her baby and stating that she intended
to return to work thereafter. She then asked for written confirmation that she
might return to "my own job" following the birth. The Council's Head of Human
Resources replied some time later, by a letter dated 19 May 1998, in which he
stated:
6. After
initially refusing to accept that the respondent was entitled to statutory
maternity pay, Diamond Recruitment eventually agreed in March 1998 to make such
payments to her. These ran until 14 August, and shortly before that the
respondent wrote to the Council stating that she would be available to return
to work on 17 August. She received a reply dated 14 August in which the writer
stated:
7. The
respondent was then offered a post at the City Cemetery in Falls Road, Belfast.
She was unwilling to accept this post, because she considered that the
conditions were materially inferior to those in which she had worked in the
Cemeteries Office, and she sought and obtained a job with a different body.
The tribunal found that on the facts the post offered was not suitable
alternative employment, and the appellant Council did not attempt to challenge
that finding in this court.
8. The
1976 Order was passed in order to fulfil the Government's obligations under the
Directive 76/207, commonly known as the Equal Treatment Directive. Other
provisions designed to protect the health of workers who are pregnant, have
recently given birth or are breast-feeding were subsequently enacted in
Directive 92/85. A considerable part of the argument before us centred round
the applicability of these provisions contained in these Directives and the way
in which the national legislation should be construed in order to fulfil their
objects. In view of the conclusions which we have reached upon the meaning and
application of Article 12 of the 1976 Order, however, it is not necessary for
us to deal in any detail with the Directives or the arguments based upon them.
10. Article
3(1) provides that a person discriminates against a woman in any circumstances
relevant for the purposes of any provision of the Order if –
11. Article
8 goes on to prohibit discrimination by an employer in a number of ways. For
present purposes the material portion is Article 8(2)(
b):
12. Part
IX of the Employment Rights (Northern Ireland) Order 1996 confers specific
rights upon an employee in respect of maternity leave and returning to work,
Article 111(2) requiring the employer to secure that the terms and conditions
of her resumed employment are not less favourable than those which she would
have enjoyed had she not been absent on maternity leave. Again, however, this
only applies to a woman who is employed under a contract of service.
13. Article
12 of the 1976 Order makes provision for contract workers, giving them specific
rights against the principals in whose establishment they are engaged. Article
12(1) and (2) provide:
14. The
arguments presented on appeal centred round the applicability of Article 12 of
the 1976 Order, though Miss Higgins for the respondent submitted in the
alternative that the respondent was properly to be regarded as an employee of
the Council (and so entitled to return to her old job), or had a remedy under
the European Directives to which we have referred. In view of our conclusions
under Article 12, we shall not require to deal with these alternative
submissions.
15. The
tribunal based its decision on the similarity between the instant case and that
reported in
BP
Chemicals Ltd v Gillick and Roevin Management Services Ltd
[1995]
IRLR 128, which it regarded as indistinguishable. In that case Ms Gillick was
a contract worker on the books of Roevin, an employment agency which had a
contract to provide BP Chemicals Ltd (BP) with staff for consideration. In
accordance with the usual arrangement in such cases, the staff taken on were
paid by the agency, which invoiced BP for their pay plus a commission. Ms
Gillick worked for three years in BP's offices as a project accountant, then
went off for a few weeks for the birth of a baby. She approached BP with a
view to resuming her old work, but was told that she could not take up her old
job, and was offered another post at a lower rate of pay. She declined this
offer, but Roevin did not offer her any further work and in due course
dismissed her.
16. The
industrial tribunal held that Ms Gillick was not employed by either Roevin or
BP but was in an "employment" relationship with both because of the definition
of "employment" in section 82 of the Sex Discrimination Act 1975 (in the same
wording as Article 2(2) of the 1976 Order). On an appeal by BP the Employment
Appeal Tribunal held that the industrial tribunal's conclusion on section 82
was incorrect, but that the case could fall within section 9 of the 1975 Act,
the same provision as Article 12 of the 1976 Order. Mr Hanna pointed out,
however, that it was specifically found by the EAT that BP had work available
to be done by individuals employed by Roevin, which was sufficient to
distinguish the case from the present one.
17. We
are not clear ourselves on what basis the EAT found that Ms Gillick was
employed by Roevin, a necessary condition to trigger the operation of section
9, notwithstanding the contrary finding of the industrial tribunal. Be that as
it may, Mr Hanna submitted that the
Gillick
case could be distinguished on the ground that in the present case there was no
work "available for doing" by contract workers when the respondent asked for
her old job back in August 1998. He pointed out that the Council would have
been able quite lawfully at any time when the respondent was occupying her post
in the Cemeteries Department to replace her with a permanent employee of the
Council, and the respondent would have had no redress in such circumstances.
He then put forward his proposition in the form of a syllogism which he
submitted formed a conclusive argument against the respondent:
18. We
agree that the availability of work for contract workers in
Gillick's
case
is a possible distinguishing feature and that the tribunal may have assumed too
readily that the situation in the two cases was identical and that
Gillick's
case
could not be distinguished. The argument for the appellant hinges on the case
being governed by Article 12(2)(
b),
whereas in our opinion it can come within Article 12(2)(
d).
We accept that the Council could have lawfully replaced the respondent with a
permanent employee at any time while she was in post, and that it might appear
somewhat paradoxical to hold that it was unlawful to do so when she went off
for maternity reasons. We consider, however, that we are compelled so to hold
by the decision of the European Court of Justice in
Webb
v EMO Air Cargo (UK) Ltd
[1994] IRLR 482.
19. It
seems to us that the following propositions are established on the particular
facts of this case:
20. We
referred above to the particular facts of this case, for it should be
emphasised that the facts were somewhat unusual particularly in respect of the
tribunal's finding that the respondent would have remained in her post if she
had not been off work for maternity reasons. Replacement of a contract worker
may well be within the law in many other circumstances.
21. We
accordingly answer the first question, posed in paragraph 9.3.1 of the case,
and the third question, posed in paragraph 9.4, in the negative. The second
question, set out in paragraph 9.4, is a step in the reasoning leading to the
conclusion on the first question, rather than a separate issue, and we do not
find it necessary to answer it. The appeal will be dismissed.