Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/2480_06.html
Cite as: [2007] NIIT 2480_6, [2007] NIIT 2480_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2480/06

CLAIMANT: Gerard McCauley

RESPONDENT: Northern Ireland Housing Executive

DECISION

The decision of the tribunal is that the claimant is a permanent employee of the respondent and so the tribunal does not have jurisdiction to consider the claimant's case under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.

Constitution of Tribunal:

Chairman: Miss E McCaffrey (sitting alone)

Appearances:

The claimant was represented by Mr P Henry, Barrister-at-Law, instructed by McDermott and McGurk Solicitors.

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by NIHE Legal Department.

DECISION

The Issue

The issue for the tribunal to decide was whether it had jurisdiction to consider the claim which was brought under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 ("the FTE Regulations"). Specifically the tribunal was asked to consider whether the claimant was employed on the series of fixed term contracts when appointed by his permanent employer to a number of year-long secondments within his employer's organisation or whether he was in fact employed on a full time permanent contract by his employer and therefore his employment fell outwith provisions of the FTE Regulations.

Facts

The facts in this case were not disputed and may briefly be set out as follows.

The claimant commenced employment with Northern Ireland Housing Executive in 1990 as a clerical officer. Over the years he progressed through different posts and different grades to achieve a level 6 grade as Assistant Programme Manager. He held this position for approximately 10 years.

In 2002 he successfully applied for a post as Regeneration Officer in the West Region. This was a level 7 post which carried increased pay. The claimant took up this post in August 2002 and he was advised by letter dated the 18^thof July 2002 from the respondent that his post would be for a period of 2 years initially. The letter continued "You will be required to relinquish your current post and future placement will be determined at the two year renewal period".

The claimant's post was in fact renewed in 2004 for a further period of twelve months and was again renewed annually until the most recent renewal for a further period of twelve months with effect from the 1^st of August 2006.

In September 2006 the claimant wrote to the Personnel Manager Mr Smyth. In the second paragraph of that letter he stated,

"As I have completed four years in the above post on 31^st July 2006 I would now request you to confirm my current post/rating (Regeneration Officer – Level 7 respectively) as permanent as required under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002."

7. The reply from Mr Smyth was as follows:-

"As previously advised the Fixed Term Employees Regulations do not apply. I cannot change the position of your permanency as an employee or your secondee status. Regrettably I am unable to assist further in relation to your request."

The claimant asked for this to be reviewed and then sought an appeal, which was unsuccessful. The claimant lodged proceedings in the Industrial Tribunal on the 25^th of October 2006 alleging that he had been discriminated against on grounds of his fixed term status.

The claimant made reference to the position of other secondees and indicated that he had been unfairly treated in comparison to them. The tribunal however must take account primarily of the claimant's position and in particular, the question of whether or not he was a fixed term employee. The evidence of Mrs McCrory, of the respondent's Human Resources Department was that secondments were commonly used within the NIHE and that secondments were often extended. On appointment to a secondment, a secondee may or may not be asked to relinquish their current post, but there was no question of a permanent employee, such as the claimant, having his employment terminated at the end of his secondment. As previously indicated in the correspondence between the parties about the secondment, Mrs McCrory had been in contact with the claimant to arrange for his assignment to a vacant Level 6 post when his secondment ended.

Relevant Law

The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 were introduced to give effect to Council Directive 1999 EC (OJ 175/43, 10^th of July 1999).

The preamble to that Directive makes it clear that it is intended to give effect to the Framework Agreement on fixed term work, such as open ended contracts, fixed term contracts, part time working, temporary work and seasonal work (see para. 3 of the Preamble).

There is presently a dearth of case law in relation to the application in the FTE Regulations however some helpful guidance is to be found in the case of Adeneler and Others -v- Ellinikos Organismos Galaktos (ECR) [2006] IRLR 716. That was a case involving Greek legislation designed to protect the abuse of successive fixed term contracts. At paragraph 64 of its judgment the European Court of Justice states as follows:-

"The concept of succession is one of the main legal concepts in the Framework Agreement. Of course the Framework Agreement and by extension, Directive 1999/70 are not intended primarily to obstruct the conclusion of individual fixed term employment relationships; on the contrary, they are focused above all on the possibility for pursuing abusive practices by concluding such contracts in succession (successive employment relationships) as well as on improving the quality of such fixed term employment relationships. In particular where a number of fixed term employment relationship have been concluded in succession, there is a danger that the employment relationship of indefinite duration, the employment relationship model defined by management and labour, will be circumvented thus giving rise to the problem of abuse. That is why clause 5 (1) of the Framework Agreement expressly requires that measures be introduced to prevent abuse arising from the use of successive fixed-term employment relationships."

The judgment goes on to point out that the framework agreement does not itself contain a definition of the term "successive" and leaves a detailed definition to the member states. In the FTE Regulations, fixed term contract is defined as follows:-

"Regulation 1 (1):-

"Fixed term contract" means a contract of employment that, under its provisions determine how it will terminate a normal course will terminate –

(a) and the expiry of a specific term, on the completion of a particular task or

(b) on the occurrence or non-occurrence of any other specific event other than attainment by the employee of any normal bona fide retiring age in the establishment for an employee holding the position held by him,

and any reference to "fixed term" shall be construed accordingly;"

Regulation 8 of the FTE Regulations provides that where an employee is employed under a contract purporting to be a fixed term contract and has been employed under successive contracts for four years or more, then he/she shall be a permanent employee unless his/her employment on a fixed term contract is justified on objective grounds.

Decision

The issue for the tribunal to decide therefore is whether the successive renewal of the claimant's secondment to his level 7 post constituted a series of successive fixed term contracts and if so whether he is therefore entitled under Regulation 8 of the 2002 Regulations to be treated as a permanent employee and permanently engaged at level 7.

The submissions made by both representatives in this case were extremely helpful. The respondent argued that the application was misconceived, Mr Dunlop for the respondent indicated that the contract of employment for the claimant in this case was not a fixed term contract. He pointed out that the claimant was not saying that he was re-engaged on a fixed term contract in July 2002. The claimant currently had 27 years' continuous employment with the respondent in a number of different posts and his terms and conditions have been adjusted at various times along the way without objection form the claimant or any suggestion that his employment was under a fixed term contract. It was not suggested that the claimant's employment would terminate at the end of his secondment and so the respondent argued that the claimant's assignment to a seconded Level 7 post could not constitute a fixed term contract within the meaning of the FTE Regulations.

Mr Henry for the claimant made the case that the claimant's contract with the respondent became a completely new contract in July 2002 when he was appointed to the seconded post of Regeneration Officer. It was argued that, under the definition in Regulation 8 (1)(a) of the Regulations, the claimant's contract as a secondee would expire at the end of a fixed term and therefore that it was in fact a fixed term contract within the definition in Regulation 1(ii). The claimant had been employed on the basis of successive secondments for a period of more than 4 years from August 2002 and that ending the secondment was to his detriment because he would have to revert to his previous grade and pay at grade 6. It was argued that it was an advantage to the respondent to say that the claimant could be employed on a number of fixed term contracts and then "demote" him by obliging him to return to his original grade.

It is clear from the initial letter sent to the claimant in July 2002 when he was advised to his appointment to the post of Regeneration Officer that it was a secondment. He was advised in that letter, "You will be required to relinquish your current post and future placement will be determined at the 2 year review period".

The 2 year review period did not actually occur as the secondment was renewed, but it was always made clear that at the end of the secondment the claimant would be reassigned to another post within the respondent's organisation. There was no question that his employment would end at the end of the secondment, which would have been the case had be been employed on a fixed term contract.

The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 were introduced to prevent specific abuse of successive fixed term contracts which would prevent employees obtaining employment rights from which they would have benefited under a permanent contract of employment. Hence Regulation 8 requires an employee who has been employed for more than 4 years under a series of fixed term contacts and whose employment under a fixed term contract "was not justified on objective grounds" to be treated as a permanent employee. Going by the wording of Directive 1999/70/EC, and considering the judgment in Adeneler, the FTE Regulations were not intended to prevent the use of fixed term contracts where they were appropriate or to restrict flexibility in employment relationships between employer and employee where it was to be mutual benefit of both parties. They were however intended to prevent abuse of successive fixed term employment contracts or relationships. It is perhaps relevant to consider the use of the term "relationships" in this context. There is no suggestion in any of the documentation nor did the claimant argue that at the end of his secondment his employment relationship with NIHE would end: on the contrary, he was assured that he would be offered a post at his permanent grade of Level 6 when the secondment came to an end.

The use of secondment allows employers to offer employees opportunities to work in different areas, at different grades and to gain more experience and expertise. It would be quite inappropriate if the flexibility afforded by such opportunities to the benefit of both employer and employee, was constricted by legislation which was put in place to cure quite a different problem.

Having considered the submissions, I believe that the claimant is not employed on a fixed-term contract but is rather employed on a permanent contract which commenced in 1980 when he was first engaged by NIHE, continues today and will continue into the future after the end of his secondment. Accordingly I find that the claimant is not a fixed term employee, his claim does not fall within the ambit of the FTE Regulations and accordingly the tribunal does not have jurisdiction to deal with his claim. I order that the claim shall be dismissed.

Chairman:

Date and place of hearing: Strabane, 27^th April 2007.

Date decision recorded in register and issued to parties: