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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Pollock v Belfast Education and Library ... [2011] NIIT 01254_10IT (07 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01254_10IT.html
Cite as: [2011] NIIT 1254_10IT, [2011] NIIT 01254_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1254/10
CLAIMANT: Peter John Pollock
RESPONDENT: Belfast Education and Library Board
DECISION ON AN APPLICATION FOR REVIEW
The unanimous decision of the tribunal is that the tribunal confirms the decision issued on 9 August 2011.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr A MacLaughlin
Mr P Archer
Appearances:
The claimant was represented by Ms A Millar, Deputy General Secretary of NIPSA.
The respondent was represented by Ms Finnegan, Barrister-at-Law, instructed by the Chief Legal Adviser of the Education and Library Board Solicitors.
BACKGROUND
1. The decision of the tribunal (“the decision”) (which was also binding in the case of Ian McCullough (Case Ref: 1253/10)), issued on 9 August 2001 was that the claimant was a fixed term employee under the provisions of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (“the Regulations”). The Tribunal also made a declaration declaring the claimant to be a permanent employee.
2. In correspondence to the tribunal dated 19 August 2011, the respondent’s Chief Legal Adviser made an application for a review of the tribunal’s decision as follows:-
“Dear Sirs,
RE: POLLOCK v BELFAST EDUCATION & LIBRARY BOARD CASE REF: 1254/10 APPLICATION FOR REVIEW OF DECISION OF INDUSTRIAL TRIBUNAL
I refer to the above application and in particular the decision of the Industrial Tribunal dated 9 August 2011. It is appreciated that the outcome of this case is also binding in the case of Ian McCullough v Belfast Education and Library Board (Case Ref: 1253/10).
I am instructed by the Respondent to apply to have one particular aspect of this decision reviewed under Rules 34-36 of Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 namely, its finding that the Claimant ’was employed on a Fixed Term Contract with extension, under the Regulations.’
It is the Respondent’s contention that this finding is flawed and that pursuant to Rule 34(3) of the 2005 Regulations the interests of justice require a review on the following grounds:-
1. The decision of the Tribunal does not appear to have taken cognisance of the decision of the Industrial Tribunal in the case of Brian Williams and Claire Foley v Department of the Environment (Case Reference 216/07 and 880/07). This earlier decision was referred to by the Respondent’s Counsel in her submissions. It was a matter of some surprise to the Respondent that this decision was not referred to (or even distinguished) in the Tribunal’s decision in this particular case. The Tribunal is also referred to the decision of the Industrial Tribunal in McCauley v Northern Ireland Housing Executive (Case Reference 24080/06) which is cited in the Foley and Williams decision.
2. In the Foley and Williams case, the Tribunal made clear that a fixed term employee and a permanent employee are defined by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 in such a way that a permanent employee cannot be a fixed term employee. Despite any confusion arising from the contents of some of the of the correspondence emanating from the Respondent, there does not appear to be any dispute in the current case that the Claimant has been a permanent employee of the Respondent since 1 October 1981 (with continuity of employment recognised from this date in his contract of employment dated November 2002 for the Implementation Officer post) and would have reverted to his substantive post as Team Leader on the conclusion of the Payroll Project. It is appreciated that the Tribunal did express some concern with regard to the training which may be required to facilitate a return to this substantive post. However at no stage did the Tribunal find that the Claimant’s employment with the Respondent would terminate on conclusion of the payroll project - such a finding in the Respondent’s view being an essential basis for any conclusion that he was a fixed term employee for the purpose of the 2002 Regulations. This being so, the Respondent will contend that there can be no doubt that this particular Claimant is not a fixed term employee for the purposes of the 2002 Regulations and that the Tribunal did not have jurisdiction to deal with his claim.
After careful consideration and with due regard to the overriding objective, the Respondent has decided not to request the Tribunal to review its decision with regard to its findings with regard to objective justification but asks that it merely focus on the discrete jurisdictional point raised above.
Yours faithfully”
THE ISSUE AND APPLICATION FOR REVIEW
3. The issue before the tribunal was whether its decision should be reviewed in the interests of justice in accordance with Rule 34(3)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) 2005 as amended, (“the Rules”).
4. The respondent’s application was that the decision should be revoked and that the tribunal must order the decision to be taken again in accordance with Rule 36(3) of the Rules.
5. The tribunal indicated to the parties at the outset of the review hearing that the reference in the decision to the oral and written submissions made by both parties’ representatives included a consideration of the relevance of the tribunal decisions referred to in the submissions and in the application for review.
SUBMISSIONS
6. (1) The tribunal carefully considered the oral submissions made by both parties’ representatives. Ms Finnegan referred specifically to paragraphs 20 and 21 of the Industrial Tribunal Decision in the case of Gerard McCauley v Northern Ireland Housing Executive (Case Ref: 2480/06), which states as follows:-
“20. 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.
21. 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.”
Ms Finnegan emphasised the need for the tribunal to consider the mischief which the Regulations were designed to prevent. She articulated this in terms of preventing abuse of fixed term contracts and preventing the acquisition of employment rights by fixed term employees. Ms Finnegan also emphasised that the tribunal had no jurisdiction to consider the case under the Regulations as the claimant had a substantive post with the respondent which pre-existed what the respondent had contended was employment on a temporary basis in the form of a fixed term contract with extensions, not governed by the Regulations. Ms Finnegan also submitted that, in effect, two contracts existed simultaneously with the same employer.
(2) Ms Millar submitted that the cases of Gerard McCauley v Northern Ireland Housing Executive and Brian Williams and Claire Foley v Department of Environment (Case Refs: 216/07 and 880/07), could be distinguished on the facts from the case before the tribunal. In the McCauley case she submitted that the claimant had never been issued with a new contract of employment whereas Peter Pollock had been issued with a new contract with extensions under the Regulations, and therefore the Regulations applied. Moreover, the McCauley case involved a two year secondment which was in fact renewed annually over a further five years. She also referred the tribunal to paragraph 18 of the tribunal’s decision in McCauley which reads as follows:-
“It is clear from the initial letter sent to the claimant in July 2002 when he was advised (of) 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 two year review period”.
Furthermore, she submitted that the Foley and Williams case was totally separate and different from the circumstances in Peter Pollock’s case and urged the tribunal, in terms, to confirm its original decision. She also referred the tribunal to its decision in the case of Mairead McComb v Belfast Education and Library Board (Case Ref: 1251/10), which was heard at the same time as the case now before the Tribunal, and submitted that identical contracts were issued in both cases and that there was a very close similarity between them.
REASONS AND CONCLUSIONS
7. The tribunal carefully considered the application for a review of the decision in the interests of justice, together with the submissions from both parties and the decisions referred to. It also considered the nature of the rights referred to in the Regulations. The Tribunal is not however persuaded, (as contended by the respondent), that it has no jurisdiction to consider the case under the Regulations, in light of the particular facts of the case, as found by the tribunal, its analysis of the relevant law, and its conclusions. The Tribunal therefore confirms the decision.
Chairman:
Date and place of hearing: 29 September 2011, Belfast.
Date decision recorded in register and issued to parties: