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THE INDUSTRIAL TRIBUNALS

CASE REF: 1254/10

CLAIMANT: Peter John Pollock

RESPONDENT: Belfast Education and Library Board

DECISION

The unanimous decision of the tribunal is that the claimant is a fixed-term employee and it makes a declaration declaring him to be a permanent employee.

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 Advisor of the Education and Library Board Solicitors.

THE CLAIM

1. The claimant sought a declaration from the tribunal that he was an employee of the respondent employed under the provisions of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (“the Regulations”) and that he was a permanent employee in the post of Implementation Officer with the respondent. The respondent contended that, although the claimant was not a secondee, he was employed on a temporary basis in the form of a fixed-term contract with extensions, but not so as to be employed under the Regulations as he has a permanent full-time post to revert to once the temporary contractual arrangement ends. In the alternative, the respondent contended that there had been a consensual variation of the claimant’s contract.

THE ISSUE

2. The issue before the tribunal was whether the claimant was a fixed-term employee under the Regulations and, if so, whether the Tribunal should declare him a permanent employee in the post of Implementation Officer with the respondent, or, alternatively whether there had been a consensual variation of the claimant’s contract.

LEAD CASE

3. The representatives, on behalf of the parties concerned, agreed that the outcome on this case would be binding in the case of Ian McCullough (Case Ref: 1253/10).

SOURCES OF EVIDENCE

4. The Tribunal heard evidence from the claimant and from John Bowman, Project Manager, and David Megaughin, Chief Finance Officer, for the respondent. The tribunal was presented with bundles of documentation and took into account only the documents referred to it in the course of the hearing.

FINDINGS OF FACT

5. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) In August/September 2002 the claimant applied for one of 6 Implementation Officer posts with the respondent. The claimant already had a full-time contract with the respondent. The special internal trawl notice stated that the posts were available for a three year period by secondment or fixed-term contract. The remainder of the notice reads as follows:-

“The persons appointed will carry out the design and implementation of a payroll, expenses and human resource system. Applicants must have a minimum of three years experience in one or more of the following areas: payroll processing; human resource; ICT; travel and subsistence; cost accounting. Preference may be given to those applicants who have experience of management reporting tools and a working knowledge of Microsoft Office, ie, e-mail, excel, word and access.”

(ii) The claimant was successful in his application and was employed by the respondent as an Implementation Officer commencing on 1 January 2003.

(iii) The tribunal considered the contract of employment entered into by the claimant which states that the respondent recognises his service with previous employers and his continuous service would therefore date from 1 October 1981 (even though he was employed by the same employer). Having referred to salary, payment of salary, and hours, a note at the end of the contract states as follows:-

“3. This contract will end on completion of your role within the Project Team or the cessation of the project (for whatever reason). However, it is anticipated that the project will last approximately three years. You will be provided with a month’s notice of the end of your contract along with the reasons for it”.

(iv) A cross-board Project Board was established with John Bowman as Project Manager. The tribunal considered the project initiation documentation (PID) which envisaged closure of the project in January-April 2006. The project was established to consider the best option available to implement a new payroll/human resources, expenses and information system for the 5 existing Education and Library Boards. The PID documentation contains the key responsibilities for the Project Team including the provision of day-to- day operational support of the system and database. Soon after the project commenced, it became clear that the envisaged closure date would not be achieved. John Bowman had been seconded from the Northern Ireland Housing Executive for a period of eighteen months. As correspondence from the respondent to the claimant’s representative, dated 4 November 2009, made clear, the respondent was contacted by the Northern Ireland Housing Executive following a request to extend the period of secondment given that the project was at a critical stage. The respondent was advised that the Executive was not prepared to agree to an extension of the secondment. Mr Bowman then chose to tender his resignation rather than return to his permanent position under the secondment arrangements and became a permanent employee of the respondent with effect from 1 February 2004 without any open competition exercise being carried out. John Bowman gave detailed evidence to the tribunal regarding the difficulties experienced in completing the project. In 2005 the project team experienced difficulties and delays with 3 Boards in particular regarding the issue of commonality. The Southern Board refused to attend workshops, there were job evaluation disputes, and the SEELB raised resource issues. The effect of such delays meant that the respondent issued the claimant with a series of extensions to his fixed-term contract, the first of which was for the period 1 January 2006 -31 March 2007. In 2007 the project board was requested to include the teachers’ payroll and this effectively doubled the work for the project. The documentation granting the extensions for this period and subsequent periods, makes it clear that the terms of the contract are in accordance with the Regulations. On each occasion the claimant had to complete and return a reply slip and was also advised that it was his responsibility to seek approval for an extension of what was termed his “secondment” from his Line Manager in his substantive position with the SEELB.

(v) Up until he received a grievance outcome letter dated 24 June 2010 from Jonathan Adams, Head of Internal Audit, the claimant received a number of extensions to his initial contract as follows:- 1 January 2006 to 31 March 2007, 1 April 2007 to 31 March 2008, 1 April 2008 to 31 March 2009, 1 April 2009 to 31 March 2010 and 1 April 2010 to 31 August 2010. The claimant wrote to Mervyn Cooke, Human Resources Manager on 3 September 2008 in the following terms:-

“Mr Mervyn Cooke

Human Resources Manager

Human Resources Department

BELB

40 Academy Street

Belfast

Co Antrim

BT1 2NQ

3^rd September 2008

Ref: Payroll/HR Project Secondment

Dear Mr Cooke

I refer to a letter I received from Human Resources advising me that my temporary contract of employment has been extended until 31st March 2009. It quotes that the terms of this contract are in accordance with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 with effect from October 2002.

According to the above regulations, after 4 years of continuous employment, I have the right to ask for a written statement detailing my current contractual position within the Belfast Education and Library Board. I am therefore requesting such a statement and would be grateful if you could provide me with same within the designated timeframe.

Yours sincerely

Peter Pollock”

(vi) The respondent’s reply of 15 September 2008, whilst not addressing the issue in his correspondence directly, states, inter-alia:-

“As you will appreciate from previous correspondence this secondment from your permanent substantive position as a Team Leader in the Payroll Department within BELB is subject to continuing approval from the Board and has been extended until 31 March 2009”.

(vii) The grievance outcome letter referred to previously states inter-alia as follows:-

“Following careful consideration of the grounds of your grievance I have decided that it would not be appropriate to uphold your grievance and recognise your position on the HR/Payroll project team as a permanent position for the following reasons;

· Since you were already employed by BELB on a permanent basis at the time of taking up your position with the HR/Payroll project the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations do not apply to the position involved. The board do not consider you to be a fixed term worker under these regulations and the pro-forma letters issued to you in respect of the extension of your position within the project team should not have referred to this legislation;

· You are already employed in a permanent substantive post with the board and are effectively undertaking work as an Implementation Officer on the project team in a temporary acting up capacity from this substantive position. On completion of the project you will return to your substantive post;

· The position you have asked to be made permanent is a project limited post associated with the implementation of a HR/payroll project which will not be required when the implementation stage of the project has been completed;

· It is noted that the terms and conditions issued to you on 27 November 2002 clearly state that the contract will end on completion of your role within the project team or the cessation of the project (for whatever reason). You accepted these terms and conditions in writing on 28 November 2011;

· In any case the board would also wish to record the fact that the project is [discretely] funded and that funding will cease on completion of the project. The board could not therefore objectively justify making the post of Implementation Officer a permanent position.

· Such a decision would increase the board’s staffing compliment which the board is not in a position to do. I note that you are already aware of the constraints imposed by the board in respect of vacancy control and the Review of Public Administration.

As previously indicated to you under step 3 of the statutory grievance procedure you have the right to an appeal meeting if you feel that your grievance has not been satisfactorily resolved. If you wish to make such an appeal you should write to Mrs Linda McGowan, Human Resources Manager, outlining the grounds of appeal within 5 working days of receipt of this letter.

Yours sincerely

Jonathan Adams

Head of Internal Audit

Copy: Alison Millar – NIPSA”

(viii) The grievance appeal outcome letter dated 6 September 2010 to the claimant (at the bottom of the third page) states:-

“Your substantive post with the Board is a permanent position and that has remained intact during the period of secondment. Furthermore, you will continue to be employed on a permanent contract following the cessation of the project.

On this basis, I take the view that the arrangement was one of temporary secondment and is effectively an acting-up arrangement and any reference to fixed-term work or regulations was made in error and does not reflect the factual position. Notwithstanding this, if the fixed-term work or regulations did apply, I am of the view that the Board had objective justification not to confirm posts as permanent, including:-

§ There was additionality in terms of the project that warranted further

extensions including teacher’s payroll and pensions and the travel and subsistence module.

§ I am aware that the fixed term workers regulations are intended to prevent less favourable treatment as compared with permanent employees and in this respect that I note that there is a number of permanent staff currently covering vacancies caused by secondments, including those covering for staff seconded to the Resourcelink project. Furthermore, there are also permanent staff currently covering permanent vacant posts none of whom have been confirmed as permanent in those positions.

§ The discrete nature of the funding is an important issue in this case and I do not accept that the board negated its responsibilities in relation to reviewing the staffing position. The staffing position was reviewed on an ongoing basis and extensions were issued as a result of such reviews.

For all of the reasons previously outlined including the ongoing issue of vacancy control the posts were not confirmed as permanent. I also note that you have been made aware in correspondence as to the rationale for not confirming the posts as permanent.

As you are aware, the decision to offer the first extension was made in November 2005, this extension covered the period 1 January 2006 – 31 March 2007. Vacancy control was implemented in October 2006 and the board has complied with that procedure. Notwithstanding this, I am not of the view that the posts would have automatically been made permanent if the issue has been addressed prior to vacancy control coming into effect.

The board has been formally advised that the payroll and human resource project for non-teaching staff has now been completed and that work has commenced on the final stage of the implementation for teachers pay and pensions and the expenses module is scheduled to be operational in January 2011. As a result the process for initiating the formal closure stage of the project has commenced and is due to be completed by 31 January 2011.

In relation to the concerns you raised in respect of the skills you have gained whilst working on the project being very specific and that you would not have recent experience and skills to bring to payroll as before. As advised by the human resources manager, any training needs will be addressed in the normal manner. However, I also noted that you accepted that you had gained skills and experience during the course of secondment and I am sure these will be beneficial to you in the future.

Having carefully considered all of the information available to me, I have decided not to uphold the grounds of your appeal.

Yours sincerely

Patricia Mellon

Chief Administrative Officer”

(ix) As the respondent’s representative conceded during the hearing, the claimant was not on secondment. Furthermore, the Tribunal is satisfied that the claimant was not placed in an acting-up position. He was also led to believe until his grievance outcome letter of 24 June 2010, that he was on a fixed-term contract with extensions. The last extension for the period 1 April 2010 to 31 August 2010, in common with previous extensions, specifically states:-

“The terms of this contract are in accordance with the fixed-term employees (Prevention of Less Favourable Treatment) Regulations 2002 with effect from 1 October 2002.

It is your responsibility to ensure that you have sought approval to your extension of secondment from your employing authority prior to returning the acceptance reply slip.

In order to finalise the details of this extension, I shall be pleased if you will confirm to me whether or not you wish to accept, by completing and returning the attached reply slip.”

(x) Furthermore, in correspondence to the claimant, dated 12 August 2010, it is stated as follows:-

“The board has been formally advised that the payroll and human resource project for non teaching staff has now been completed and the mandate as stipulated in the project initiation document of June 2003 has been successfully fulfilled.

The board has also been made aware that work has commenced on the final staff of the implementation for teachers pay and pensions and the expenses module is scheduled to be operational in January 2011.

As a result the process for initiating the formal closure stage of the project in accordance with Prince 2 has commenced and it is envisaged that it will [be] completed by 31 January 2011.

Given this I am writing to confirm that your secondment to the post of implementation officer in the Resourcelink Project will cease on
31 January 2011. Please note approval to the extension of your secondment has been granted.

The board recognises there will be a need for ongoing support posts following the formal closure of the project and has asked the project board to assess those requirements. On completion of this exercise the board will take the necessary steps to recruit to those posts,

Yours sincerely

Linda McGowan

Assistant Senior Education Office

Human Resources/Administrative Services“

(xi) The position in January 2011 is summarised in correspondence from the respondent’s solicitor to the claimant’s representative as follows:-

“Dear Alison

Re Mairead McComb and Others – v – Belfast Education and Library Board (Case Ref Nos 1251-1254/10IT)

I refer to your letter of 17 January 2011 in respect of the above cases and can advise as follows based on information provided by the chairperson of the Project Board responsible for overseeing the implementation of the HR/payroll project.

I am informed that the Department of Education has approved the Project Board’s decision regarding the establishment of a Resourcelink support and development team in accordance with a business case which indicated that 6 posts would be required to provide the ongoing support required.

As previously advised and noted in your letter it has been agreed that the support and development team will be employed by SEELB and will report through the Inter-board Financial Systems (IFS) team. At present no decisions have been made by SEELB in respect of the grading or location of the posts involved. However as you will appreciate these matters will need to be addressed in the near future in order to trawl the posts concerned across the education sector. DE have also indicated their support for the new posts being advertised as permanent posts given the critical nature of the work and the requirement for ongoing support and development in the longer term. Clearly now that the proposed arrangements have been approved it will be a matter for SEELB to make the necessary arrangements to establish the support and development team.

I look forward to hearing further from you in respect of an agreed application for postponement of the forthcoming hearing as soon as possible. Subject to the Claimants’ agreement to this course of action, BELB will extend contracts for the existing implementation team members until such time as the new support and development function has been established. The board would hope that SEELB would be in a position to establish the new support and development team by the end of April 2011 – however this will be dependant on completion of the necessary job evaluation and recruitments processes.

I hope the above is of assistance.

Peter O’Rawe”

(xii) The decision to pursue the option of establishing a central support system within the SEELB was made at a Project Board meeting on 11 October 2010. Closure of the project is scheduled for 30 June 2011. In the 18 months preceding the hearing, the percentage of time spent by the Implementation Officers in support work had increased to over 90% after the system went live for the teachers at the end of November 2009. Further delays have been incurred in resolving travel and subsistence issues, and, although the system is ready, 4 of the 5 Boards have yet to activate their ownership of the system. It was clear to the tribunal that various Boards, for their own reasons, were not in favour of some aspects of the PID work and recommendations. Moreover, the Educational Skills Authority (ESA) has not yet been formed, although much of the project work was geared towards such an eventuality. The SEELB have agreed in principle with the option agreed at the Project Board in October 2010 and it seems likely, though not inevitable, that this option will be finally implemented, but the possibility remains of the support function reverting to the respondent.

(xiii) The future intentions regarding the new support and development team are articulated in correspondence to the claimant from the respondent dated

28 January 2011 as follows:-

“I can also advise you that it has been agreed that the new support and development team will be employed by SEELB and will report through the Inter-board Financial Systems (IFS) team. At present no decisions have been made by SEELB in respect of the grading or location of the posts involved however as you will appreciate these matters will be addressed in the near future in order to trawl the posts concerned across the education sector. DE have indicated their support for the new posts being trawled as permanent posts given the critical nature of the work and the requirement for ongoing support and development in the longer term”.

(xiv) The tribunal understands the frustrations of the claimant at having an intended three year contractual arrangement extended to some 8½ years. Furthermore, it will clearly be very difficult for the claimant to revert to his previous post. This was acknowledged by the respondent in evidence. There was no evidence placed before the tribunal that the claimant would be afforded the considerable training required to enable him to return to his previous post. The tribunal finds the correspondence relating to the claimant’s contractual status to be confusing and somewhat misleading in relation to the applicability of the Regulations and, in particular, the correspondence to the claimant of 24 June 2010. The tribunal is satisfied that the terminology referring to secondment and acting-up is clearly inappropriate and is further satisfied that the claimant was employed by the respondent on a fixed-term contract (with extensions) under the Regulations. This is also consistent with the trawl notice for the post which refers to “secondment or fixed-term contract”. It is also evident that there is a continuing need for a support function. The tribunal does not accept that the contractual arrangement was a consensual variation of a substantive contract.

THE LAW

6. (1) Regulation 1(2) of the Regulations contains the following:-

“contract of employment” means a contract of service or of apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

“employee” means an individual who has entered into or works under or where the employment has ceased, worked under a contract of employment;

“employer”, in relation to any employee, means the person by whom the employer is or where the employment has ceased, was employed;

“fixed-term contract” means a contract of employment that, under its provisions determining how it will terminate in the normal course, will terminate —

(a) on 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 that the attainment by the employee of any normal bona fide retiring age in the establishment for an employee holding the position held by him,

any reference to “fixed-term” shall be construed accordingly;

“fixed-term employee” means an employee who is employed under a fixed-term contract;

“permanent employee” means an employee who is not employed under a fixed-term contract, and any reference to “permanent employment” shall be construed accordingly”.

(2) Regulation 8 of the regulations provides as follows:-

“Successive fixed term contracts

8.—(1) This regulation applies where —

(a) an employee is employed under a contract purporting to be a fixed-term contract; and

(b) the contract mentioned in sub-paragraph (a) has previously been renewed, or the employee was employed by the same employer on fixed-term contract, or on a series of successive fixed-term contracts, before the start of the contract mentioned in sub-paragraph (a).

(2) Where this regulation applies then, with effect from the date specified in paragraph (3), the provision of the contract mentioned in paragraph (1)(a) that restricts the duration of the contract shall be of no effect, and the employee shall be a permanent employee, if —

(a) the employee has been continuously employed under the contract mentioned in paragraph 1(a), or under the contract taken with a previous fixed-term contract, for a period of four years or more, and

(b) the employment of the employee under a fixed-term contract was not justified on objective grounds —

(i) where the contract mentioned in paragraph (1)(a) has been renewed, at the time when it was last renewed;

(ii) where that contract has not been renewed, at the time when it was entered into.

(3) The date referred to in paragraph (2) is whichever is the later of —

(a) the date on which the contract mentioned in paragraph (1)(a) was entered into or last renewed, and

(b) the date on which the employee acquired four years’ continuous employment”.

(3) Regulation 9 of the regulations provides as follows:-

“Right to receive written statement of variation

9.—(1) If an employee who considers that he is to be regarded, by virtue of regulation 8, as a permanent employee requests in writing from his employer a written statement confirming that the contract is to be so regarded, he is entitled to be provided, within twenty-one days of his request, with either —

(a) such a statement, or

(b) a statement giving reasons why his contract remains fixed-term.

(2) If the reasons stated under paragraph (1)(b) include an assertion that there were objective grounds for the engagement of the employee under a fixed-term contract, or the renewal of such a contract, the statement shall include a statement of those grounds.

(3) A written statement under this regulation is admissible as evidence in any proceedings before a court, an industrial tribunal and the Commissioners of Inland Revenue.

(4) If it appears to the court or tribunal in any proceedings -

(a) that the employer deliberately, and without reasonable excuse, omitted to provide a written statement, or

(b) that the written statement is evasive or equivocal, it may draw any inference which is considers it just and equitable to draw.

(5) An employee who considers that, by virtue of regulation 8, he is a permanent employee may present an application to an industrial tribunal for a declaration to that effect.

(6) No application may be made under paragraph (5) unless -

(a) the employee in question has previously requested a statement under paragraph (1) and the employer has either failed to provide a statement or given a statement of reasons under paragraph (1)(b) and

(b) at the time the application is made the employee is employed by the employer.

(4) Harvey on Industrial Relations and Employment Law (“Harvey”) at R[1558] states as follows:-

“General

This provision transposes the second principal aim of Directive 99/70/EC, namely to place restrictions on the perceived abuse of fixed-term contracts by keeping an employee on them for long periods of time. The Directive sets out three possibilities and the government have adopted a hybrid of two of them, so that an employee kept on successive fixed-term contracts for four years is deemed to become a permanent employee from that point on, unless the employer can objectively justify keeping them on the fixed-term basis for longer than that period. However, it must be borne in mind that the purpose of this provision is to attack abuse of fixed-term contracts, not to attack such contracts as such: Duncombe v Secretary of State for Children, Schools and Families [2011] UKSC 14.

Whereas the regime of no discrimination in SI 2002/2034 reg 3 means that an employer may have to review the terms and conditions for fixed-term employees, this provision may mean that that employer may have to review its use of such contracts, certainly if on any long-term basis.

By virtue of para (4) the clock only started ticking on the four years on 10 July 2002 (the date by which the Directive should have been transposed). This regulation does not have retrospective effect before that date.

Para (1): Purporting to be a fixed term contract

This does not mean that the provisions of this regulation can only apply where the contract's true nature is a permanent one but it has been dressed up as a fixed-term one: Duncombe v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1355.

Renewed

One (minor) limitation on this regulation is that it only applies where there has been at least one renewal of the fixed-term contract, or there has been another such contract in existence prior to the instant one. Thus, if an employee was put on to, say, a five year fixed-term contract this regulation would then apply only if it was then renewed at the end of the fifth year.

Para (2): Justified on objective grounds

Justification is not further defined. The DTI 'Fixed-term Work: A guide to the regulations' (PL512) merely states that justification should be approached by applying a three-fold test, namely whether the employer can show that the further use of a fixed-term contract—

· is to achieve a legitimate objective, for example a genuine business objective;

· is necessary to achieve that objective;

· is an appropriate way to achieve that objective.

It further points out that it is open to employers and representatives of employers to agree objective reasons as part of a collective or workforce agreement (see para (5)(c)).

In Adeneler v Ellinikos Organismos Galaktos C-212/04 [2006] IRLR 716, the ECJ held that the use of successive fixed-term contracts is not justified merely because permitted by national legislation; instead, there must be specific factors relating in particular to the activity in question and conditions under which it is carried out. Although that appears to establish a wide approach, the subsequent decision of the Supreme Court in Duncombe v Secretary of State for Children, Schools and Families [2011] UKSC 14 showed one potential limitation. It concerned teachers at a European School who were subject to an EU rule limiting their time at the school to 9 years (achieved by contracts of 2 years, then 3 then 4); when a challenge was brought under this regulation, the tribunal held that the 9 year policy was not justified, but the Supreme Court held that they had considered the wrong question—the regulation considers whether the use of the last contract was justified, not any overall time limitation, and on that basis, taking the 9 year maximum as a given, the use of the fixed-term contracts to achieve it was justified. Further, it was held that the regulation does not establish a principle that a fixed-term contract must only be used if the work itself is only needed for a limited term”.

SUBMISSIONS

7. (i) The tribunal carefully considered the oral and written submissions from both parties’ representatives, together with the additional submissions relating to the Duncombe case. These written submissions are appended to this decision.

(ii) The tribunal met on 24 June 2011 and arrived at its decision, in anticipation of having it issued on or before 30 June 2011. Further correspondence received from the claimant’s representative was subsequently brought to the tribunal’s attention. It dealt mainly with matters arising after 30 June 2011. Having considered the correspondence together with the respondent’s written comments, the tribunal reconvened the hearing on 27 July 2011 to hear further submissions from the representatives and to decide whether to accede to the claimant’s representative’s application to have the case reopened and to adduce further evidence. The respondent’s counsel opposed the claimant’s application. The tribunal was unanimously of the view that it was in accordance with its overriding objective for the case not to be reopened.

CONCLUSIONS

8. The tribunal, having carefully considered the evidence together with the submissions and applied the principles of law to the findings of fact, concludes as follows:-

(1) The regulations define a permanent employee as being an employee who is not employed under a fixed-term contract, and any reference to permanent employment shall be construed accordingly. The tribunal has found that the claimant was employed on a fixed-term contract with extensions, under the regulations. As Lady Hale stated in paragraph 12 of her judgment in the Duncombe case:-

“Thus there is no need for objective justification for the current (that is, renewed or successive) contract unless and until the employee has been continuously employed for four years. But once he has, the latest renewal or successive contract has to be justified on objective grounds. Otherwise the contract will automatically be transformed into a contract of indefinite duration. As such it will still, of course, be terminable by whatever is the contractual notice period on either side”.

(2) In light of the findings of fact the tribunal is satisfied that the respondent does not have an objective justification for maintaining such a series of extensions to the original fixed-term contract. The project itself became unwieldy and unfocused. It had behind it the notion that the Educational Skills Authority (ESA) would be established. This has not happened. Furthermore, additions were made to the original project which elongated the process and this, combined with various degrees of difficulties within the 5 Boards, meant that the original objectives for the project became confused. The claimant who could not be considered as a secondee with the same employer, has been performing a predominantly support role for the past 18 months, and has, in effect, been left in the position of having to compete for a similar support function job in another Board, with no guarantee of being successful. The tribunal is satisfied that there has been an abuse of the fixed-term contract which the legislation is designed to prevent.

(3) The tribunal is therefore satisfied that the claimant is entitled to the declaration sought and does not accept that it is prevented from making such a declaration where an employee has a substantive post to return to.

Chairman:

Date and place of hearing: 3-5 May 2011, 26 May 2011 and 27 July 2011, Belfast.

Date decision recorded in register and issued to parties:

IN THE OFFICE OF INDUSTRIAL TRIBUNALS
CASE REF NOS 1251/10IT - 1254/10IT

McCOMB AND OTHERS -V- BELB

1. The issue for the tribunal is to decide whether the claimants are Fixed Term Employees under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. If that fact is established then the Claimants argue they should be made permanent in the role of Implementation Officer (Senior Administrative Officer grade) or any subsequent post which defacto is the primary role and duties they performed since 2003 and would continue to perform in any new role. The Claimants believe the case has been established that the support and development role they have performed since 2003 (25-30%) and more latterly 90%- 95% of the time since 2009 is the same ‘role that is required for the foreseeable future. This was not rebutted by Mr Bowman or Mr Megaughin. On that basis there is no objective justification for the claimants not to be made permanent and if necessary transfer to any new employer dependent on decisions which have yet to be decided. The current proposals would result in the delivery of the function either being delivered by the Respondent (the BELB) or the South Eastern, Education & Library Board (SEELB).

2. At the outset of the-case1twas agreed that the 4 Claimants could be divided into 2 groups. One group was McComb and McCaul and the second group was Pollock and McCullough. It was agreed that the evidence and decision in relation to the McComb and McCaul case would be deduced and binding from the evidence given by Ms McComb. Furthermore it was agreed that the evidence and decision in relation to Pollock and McCullough would be deduced and binding from the evidence given by Mr Pollock.

2. All Claimants were employed by the Belfast Education and Library Board (BELB) from 1st January 2003 in the role of Implementation Officer.

2. In respect of McComb and McCaul it was accepted by the Respondents they were fixed term employees as defined by the Fixed Term Employees/Prevention of Less Favourable Treatment) Regulations 2002.

4. However the Respondents sought to argue that the reason for not making them permanent in the post of Resourcelink Implementation Officer (Senior Administrative Officer) was objectively justified. This was denied by the Claimants.

5. In respect of Claimants Pollock and McCullough the Respondents contended they could not be deemed to be Fixed Term eas defined by the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 as they had a substantive post in the BELB.

The legal and factual issues were agreed as follows:-

Mairead McComb/Dermot McCauI

(a) It is agreed between the parties that both these Claimants are fixed
term employees as Implementation Officer for the purpose of Fixed
Term Employees (Prevention of Less Favourable Treatment)
Regulations (NI) 2002.

(b) Accordingly were both these Claimants entitled to be declared permanent employees of the BELB in the posts of Implementation Officer pursuant and Reg 8 (2) or were their employments under fixed term contracts in these posts justified on objective grounds?

Peter Pollock/lan McCullough

(a) Were these Claimants fixed term employees as Implementation Officers for the purposes of the Fixed Term Regulations were they full-time permanent employees of the BELB a change under a

consensual variation of their existing substantive contracts and therefore not entitled to rely on the Fixed Term Regulations.

(b) If, which is denied by the Respondent, these Claimants were fixed term employees for the purposes of the Fixed Term Regulations, were they entitled to be made permanent in the post of Implementation Officer or were these objectives justified for not declaring these posts permanent?

7. The Respondent accepted that the Claimants were not seconded to the posts of Implementation Officer.

8. The reason for this was established on the basis a “normal” secondment arrangement is where the employer of the secondee continues to pay the secondee and arrangements are put in place for the new or host employer to reimburse the secondees employer. Secondly the secondee would normally remain the employee of their original employer and obtain all relevant circulars, trawls etc of the seconding employer. This did not happen in the case of McComb and McCaul. Ms McComb gave evidence that she received a P45, Pay in Lieu of undertaken holidays and a termination form and therefore believed the SEELB had ceased to be her employer. Furthermore during her period with the BELB the BELB paid her, she received internal trawls relevant to the BELB and nothing from the SEELB. Mr Bowman the Project Manager was accepted as being a “true secondment” up to the point 18 months into his tenure when the Respondent employer decided to offer him a permanent contract of employment on the basis that his former employer refused to continue to offer the extension to his secondment for what was argued in respect of the Claimants for a time limited period. Mr Bowman was “slotted in” without further competition to a permanent post (not a seconded post).

9. Initially all Claimants applied for and were successful in a competition for Implementation Officers. The initial trawl indicated the posts would be for a 3 year period by secondment or fixed-term basis.

10. It is accepted that the Claimants initially advised that they did not give much thought to their legal contractual situation and believed they would return to their original substantive posts at the end of the 3 year period.

11. However the facts of the matter are clear the Respondent; the BELB issued 7 renewals of contract on 28th November 2005, 11^th April 2007, 11^th March 2008, February 2009, 12^th March 2010, 12^th August 2010 and 28^th January 2011.

12. The first 5 extensions to contract clearly stated “The terms of this contract are in accordance with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002”. All claimants therefore contend they are Fixed Term Employees as defined by Article 1(1) of the Fixed Term Employee Regulations. In addition the claimants contend that Article 8 applies.

13. Ms McComb wrote to Mr Cooke, Deputy Human Resources Manager, BELB on 2 occasions (i.e. September 2008 and 16^th February 2010). On both occasions Ms McComb asked for a written statement detailing her contractual position as she had been in post for more than 4 years. In the first response dated 7^th October 2008 Mr Cooke failed to address the issue and referred Ms McComb to the SEELB. In the second response dated 3^rd March 2010 Mr Cooke advised that the reason she could not be made permanent was that Projects are time limited and that vacancy control was in place because of the impending establishment of the Education and Skills Authority (ESA). This appears to be the objective justification argument submitted by the Respondent.

13. In respect of Mr Pollock, he also wrote an identical letter to that of Ms McComb’s first letter to Mr Cooke dated 3 September 2008. Mr Cooke responded on the 1 5th September 2008 advising that “this secondment from your permanent substantive position as Team Leader in the Payroll Department is subject to continuing approval from the Board and has been

extended to 31^st March 2009”. Mr Pollock gave evidence that he did not believe this answered or addressed his original query which sought a written statement detailing his contractual position.

14. Despite Ms McComb and Mr Pollock raising the matter of their contractual position with Mr Cooke the Claimants continued to be issued with identical letters extending their contracts advising them that the terms of their contract was under the Fixed Term Employees Regulations (Protection of Less Favourable Treatment) Regulations 2002.

15. When the initial grievance was heard by the BELB various reasons were given to Ms McComb for not acceding to her grievance and the key issue of her being a Fixed Term Employee. The key reasons were the project was time limited; that the contract wàuld end on the cessation of the project; the project (and by inference the post) was discreetly funded and the decision to make Ms McComb permanent would increase the Boards staffing compliment. It was only after the Claimants had been written to by Mrs McGowan the BELB, HR Manager on j2th August advising that their contracts would cease on 31st January 2011 that Mrs Patricia Mellon, Chief Administrative Officer, BELB wrote to the Claimant, Ms McComb and advised that she took the view that the arrangement was one of temporary secondment and any reference to fixed term worker regulations was made in error. She went on to say if the fixed term worker regulations did apply she was of the view that the board had objective justification not to confirm these posts as permanent. The objective justification she offered by way of an explanation was the extension of the project, other staff were being treated the same as Ms McComb and therefore neither she nor they could be made permanent and the nature of the funding. She also indicated that because of vacancy control this prevented the Respondent from filling any posts on a substantive basis.

16. Similarly when Mr Pollock received the outcome to his grievance various reasons were given for not acceding to his grievance and the key issue of him not being a Fixed Term Employee. The key reasons given, to Mr Pollock were

Since he was already employed by BELD on a permanent basis at the time of taking up his position of Implementation Officer meant the Fixed Term Employee Regulations did not apply; he was effectively undertaking work in an acting up capacity; the position was time limited and would not be required after the project was completed: the project is discreetly funded: and if acceded to would increase the Respondents staffing compliment. Again it was only after the Claimants had been written to by Mrs McGowan, the BELS HR Manager on 12^th August advising that their contracts would cease on
January 2011 that Mrs Patricia Mellon, Chief Administrative Officer, BELB wrote to the Claimant Mr Pollock and advised that she took the view that the arrangement was one of temporary secondment (and therefore not acting up as the reason previously given) and any reference to fixed term worker regulations was made in error. She went on to say if the fixed term worker regulations did apply she was off the view that the board had objective justification not to confirm these posts as permanent. The objective justification she offered by way of an explanation was the extension of the project had been brought about by additionality to the Project, other staff were being treated the same as Mr Pollock and therefore neither he nor they could be made permanent and the nature of the discreet funding meant they could not make Mr Pollock permanent in the post. Furthermore Ms Mellon also indicated that because of vacancy control this prevented the Respondent from filling any posts on a substantive basis.

17. Having accepted that Ms McComb is a Fixed Term Employer the issue for the tribunal to decide is are the objective justification arguments put forward by the BELB justified. Ms McComb would contend that they are not justified. The arguments submitted on behalf of Ms McComb are set out in paragraph 20 below.

18. In respect of Mr Pollock there are two issues for the tribunal to decide was Mr Pollock a Fixed Term Employee as defined by the relevant legislation and if he is then is there objective justification for not making him permanent.

19. In relation to the issue of Mr Pollock and the issue of Fixed Term Employee the post was only ever offered on the basis of a secondment or a fixed term appointment. As there is no secondment policy or secondment agreement then the claimant would contend there is no secondment. Therefore that only leaves one alternative on the basis of the trawl - ie Mr Pollock was a fixed term employee. This was reinforced to Mr Pollock on at least 5 occasions. At no time did the Respondent advise Mr Pollock that he was agreeing to a variation of his contract. What he was asked to sign and accept was a new contract of employment. A new contract cannot be categorised as a variation of contract — this is a totally separate issue and any variation of contract should clearly state that it is a variation of contract. The arguments submitted on behalf of Mr Pollock regarding objective justification are set out in paragraph 20.

20. In relation to the objective justification arguments put forward by the Respondent these are not sustainable for the following reasons:-

a) The role performed by the claimants have been in the support and development role from somewhere between 25-30% in 2005 to 90-95% since 2009. Therefore the issue of the work required going forward to support the HR & Payroll System has been the work that the claimants have been performing since 2005 and almost exclusively since 2009. Therefore it is absolutely appropriate and in line with the legislation to make the claimants permanent.

b) Other staff being treated what could be argued “equally poorly” does not stack up. Two wrongs do not make a right.

c) The issue of discrete funding is a “red herring” and does not set aside the respondents responsibility to consider the issue of permanency once someone has been employed under the Fixed Term Regulations for 4 or more years.

- 7

21. The Department of Education (DE) have agreed to make the Support and Development posts permanent. This is against a backdrop of no new or existing posts being filled on a permanent basis. It is clear therefore that DE recognise the importance for the foreseeable future of supporting the HR and Payroll Systems across both the 5 Education and Library Boards and DE. Given Mr Bowman indicated that the role the Claimants have been performing to some degree (25-30%) since 2005 and almost exclusively (90-95%) since 2009 has been in the support and development role we would contend mean there is an ongoing need for the role performed by all Claimants and therefore not to make them permanent and instead recruit others into a very similar role would be contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. It is therefore the Claimants view that this fully supports their view that the Tribunal should rule in their favour, make a declaration they are Fixed Term Employees in line with Article 8 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations and also confirm that the Respondents objective justification is not accepted and as a consequence the Tribunal rule that all 4 Claimants should be made permanent.

Relevant Law

22.There is little case law in relation to the application of the Fixed Term Employees Regulations at present. One such case is McCauley —v- Northern Ireland Housing Executive (Case Ref no 2480/06. In respect of Mr Pollock’s case we would suggest this case is not relevant. The facts of this case while there are some similarities are different in other respects. The Respondents have argued a number of points regarding exactly what Mr Pollock’s contractual position is. On some occasions they argued Mr Pollock was seconded, however it was established that he was not in fact seconded as he did not meet the normal test of a seconded employee; on another occasion it was. suggested Mr Pollock was acting up to the position of Implementation Officer, however again it was established that the post was trawled and acting up was not appropriate terminology or factual position; it was argued he was

not a Fixed Term Employee because he had a substantive post to return to with the Respondent. The issue of possible consideration of a “consensual variation to contract” was introduced by the Tribunal and the Respondent seemed to suggest that this was the appropriate contractual relationship. We would contend that the Respondent was absolutely at a loss to explain what the appropriate contractual relationship was. If that is the case, which we wàuld strongly contend is the position then no wonder the Claimant was unclear. He relied on the letters extending his initial contract which clearly stated “the terms of this contract (presumably referring to the initial contract) are in accordance with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 . It is therefore contended the case of McCauley v NIHE is totally different and therefore not relevant to support the Respondents case.

23. The Claimants would contend that the case of Ball v University of Aberdeen
2008 (Case No 8/101486/08) is relevant for consideration by the Tribunal. A tribunal ruled that Dr Andrew Ball, a research fellow in the department of Zoology, must be recognised as a permanent employee. Dr Ball was continuously employed at the university under three successive contracts which began in April 1999. Each contract had been linked to external short- term funding.

In finding for Dr Ball, the tribunal rejected the university’s case that short-term funding could automatically provide a justification for employment on a fixed term, and found that the university had failed to carry out any assessment as to whether Dr Ball could have been offered a permanent contract in 2002 when his third contract was offered.

The tribunal found that employment on fixed-term contracts gave rise to genuine disadvantage to the employee, particularly around the uncertainty of future employment, damage to career progression and professional development, and potential difficulties in obtaining credit. It found no objective grounds for continuing Dr Ball’s employment on a fixed term basis.

24. The tribunal heard from Mr Pollock and Ms McComb that they believed they had suffered detriment in that they would more likely than not, not be eligible to apply for their former posts given the likely criteria, in the case of Mr Pollock as Team Leader. He has not managed staff for 8% years and therefore would not be able to meet the essential criteria for the post he left. Given the uncertainty over the future of the Education & Library Boards, particularly in light of the Education Minister’s view that they would wish to pursue the establishment of the Education & Skills Authority - Mr Pollock gave evidence that a colleague had applied for a post in the new Library Authority and he had not been shortlisted for interview because he did not have the requisite ‘recent experience”. The claimants all feel that their career progression and professional development has been adversely affected because posts which they would have been eligible to apply for before taking up their current posts they now would not be in a position to apply for. They now have a specific skill set which restricts the types of posts for which they can apply.

24. This is similar to the Ball v University of Aberdeen case.

25. This case established that were posts were initially devised for a specific purpose but where the postholder has become integral to the objective of project/event’s success then that is a strong justification to make the postholder permanent. Therefore the discreet funding argument put forward by the Respondent is not justified. Furthermore an additional justification for making a post permanent is where the requirement for the post continues and is integral to the departments academic or business plans. The evidence deduced at tribunal supported the continuing need for the work to be performed.

Conclusion

26. The issue for the tribunal is to decide whether the claimants are Fixed Term Employees under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. If that fact is established then the Claimants argue they should be made permanent in the role of Implementation Officer

(Senior Administrative Officer grade) or any subsequent post which defacto is the primary role and duties they performed since 2003 and would continue to perform in any new role. The Claimants believe the case has been established that the support and development role they have performed since 2003 (25-30%) and more latterly 90% of the time since 2009 is the same role that is required for the foreseeable future. This was not rebuffed by Mr Bowman or Mr Megaughin. On that basis the tribunal should reject the Respondents objective justification claim.

27. In addition the Ball case found that Dr Ball suffered genuine disadvantage in being kept on fixed-term contracts, uncertainty of future employment, disadvantage in terms of career progression and professional development. We would contend this is very similar to the Claimants position.

19th May 2011

Case Nos: 1251/100IT,1252/ 10OlT,

1253/ 100IT,1254/100IT

IN THE INDUSTRIAL TRIBUNALS AND

FAIR EMPLOYMENT TRIBUNALS

BETWEEN:

MAIREAD McCOMB

DERMOT McCAUL

PETER POLLOCK

IAN MCCULLOUGH

CLAIMANTS

AND

BELFAST EDUCATION AND LIBRARY BOARD

RESPONDENT

SUBMISSIONS ON BEHALF OF THE RESPONDENT

The Claimants have brought tribunal proceedings against the Respondent (hereinafter “BELB”) seeking a declaration that they are employed as Implementation Officers under fixed term contracts of employment to which the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (hereinafter “the Regulations”) apply. They further seek a declaration that they are now permanent employees of the BELB pursuant to the provisions of Regulation 8.

Factual Background.

Mairead McComb held a substantive permanent full time post with the South Eastern Education and Library Board (SEELB) as an ICT manager.

Dermot McCaul held a substantive permanent full time post as a Senior Clerical Officer with the Southern Education and Library Board.

Peter Pollock held a full time substantive permanent post with BELB as a Team Leader in Salaries and Wages Department.

Ian McCullough held a substantive permanent full time post with BELB as a Team Leader in Payroll Department.

In August 2002 a special Internal Trawl notice (p37) advertised (up to 6) posts of Implementation Officer. The persons appointed were to carry out “the design and implementation of a payroll, expenses and human resource system.”

The posts were advertised as being “available for a three year period by secondment or fixed term contract.”

Each of the Claimants applied for the posts and was successful. Each Claimant was given a statement of terms and conditions of employment. In each case the terms and conditions stated: “This contract will end on completion of your role within the project team or the cessation of the project (for whatever reason). However it is anticipated that the project will last approximately three years.

In fact, for reasons given in evidence to the Tribunal by the Respondent’s witnesses, the project lasted considerably longer than the originally anticipated three year period and it became apparent reasonably early in the first three year term that this would be the case. The project has continued to date, but, as the Tribunal heard in evidence from Mr Bowman and Mr Megaughin it is now in its closure phase. The Timetable for the project (p127) had originally anticipated this as occurring between January and Aprril 2006. Mr Megaughin, the BELB’s Chief Finance Officer gave evidence that the project would close on 30^th June 2011 at latest.

In the period between the first initial three year period and the present the BELB offered and the Claimants accepted extensions to their original temporary contracts of employment. The letters sent to all four Claimants were identical on each occasion. In Ms McComb’s case the letters are at p44, 45, 46, 49, 60 and 81. In the case of the other Claimants the identical letters are contained in the supplementary bundle. In all of these letters with the exception of the last one a finite date was specified for each extension of contract. The last letter confirmed that secondment to the post of implementation Officer in the Resourcelink project would cease on 31 January. As the project did not in fact cease on 31 January 2011 a further letter was sent to Ms McComb and the other Claimants on 28 January 2011 (p325/6) indicating that “...it has been agreed that the board will extend the temporary contracts for the existing implementation team until such time as the new development and support function is established.”

In each of the extension letters the decision to extend the temporary contract of employment was confirmed. It was also stated “Please note that it is your responsibility to seek approval for an extension to your secondment from your line manager in your substantive position.” Both Mr Pollock and Ms McComb confirmed that they had sought approval from their line managers in their substantive posts and this was the same for the other two Claimants albeit that they did not give evidence. Additionally, in each letter it was stated that the terms of this contract “are in accordance with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002”. It was the evidence of Mr Megaughin that this was an error as far as the two BELB substantive employees Mr Pollock and Mr Mccullough were concerned and that this should not have been included

It had always been known that once the payroll, expenses and human resource system had been designed and implemented that there would be an on-going requirement for support for the system and indeed as the process was rolled out during the implementation project, the Claimants had an increasing support role as each new user of the system went “live” across the five Education and Library Boards and other users e.g. Teachers Branch, Waterside. It is accepted by the Respondent that as the project was coming towards closure that the bulk of the work being carried out by the Claimants was support albeit that there was still some implementation work being carried out.

The decision in relation to how on-going support should be provided after closure of the Implementation Project was taken after discussion of various options which are set out in the minutes of the Project Board meeting on Mon. 11th October 2010. (p 316). The minutes of the meeting of Thursday 21 October (@p316) indicate that the recommended option was Option 4 i.e. central support being provided from Inter-Board Financial Support (IFS) within SEELB. Members of the project Board acknowledged the need to

initiate discussions with SEELB on this topic and to take it forward.

It is the Respondent’s case through the evidence of Mr Megaughin that once the project closes that the BELB will no longer have any posts of Implementation Officer as the Implementation Project will have ceased. Indeed the Project Manager Mr Bowman was subject to a compulsory redundancy which will take effect at the end of June this year. In the event that the Claimants are declared to be permanent employees, it is almost certain that they too will be made redundant. It is the Respondent’s position in line with evidence given on its behalf that as things currently stand that all Claimants have permanent substantive posts to return to.

Legal Issues

It is conceded by the Respondent that the Claimants McComb and McCaul were employed on fixed term contracts to which the Regulations apply. The Respondent’s evidence is that both these Claimants have substantive posts to return to, albeit that in the case of Ms. McComb she alleges that she had terminated her employment with the SEELB at the time of her initial appointment as a temporary Implementation Officer. The Respondent submits that Ms McComb’s evidence that she sought the approval of her line manager in her substantive post with SEELB at the time of each extension to her temporary contract, does not sit comfortably alongside her assertion that she had terminated her substantive post back in 2003. Additionally the Tribunal has heard evidence from Mr Megaughin for the fact that her P45 was required by the BELB in order to place her on the payroll in this temporary contract of employment with BELB.

In the Respondent’s submission the issue to be determined by the Tribunal in their case is: whether or not, pursuant to the provisions of Regulation 8(2)(b) the continued employment of the Claimants on fixed term contracts was justified on objective grounds.

The Respondent submits:

The Implementation Project was always, and was always intended to be, a time limited project as is evidenced by the timetable at p127. The fact that the Project carried on for a substantially longer period than had been originally envisaged, for reasons for which the Tribunal has heard the evidence from Respondent’s witnesses, did not change that position. As per the evidence of Mr Megaughin, closure of the project is imminent.

Harvey on Industrial Relations and Employment Law states at Division AI

[170]

With regard to justification generally, the guidance by BIS (previously the DTI and BERR) suggests adoption of the EC law test that the employer must show that the less favourable treatment—

(1) is to achieve a legitimate objective, for example a genuine
business objective;

(2) is necessary to adhere that objective; and

(3) is an appropriate way to achieve that objective.

The Respondent submits that the legitimate objective in this instance was for the BELB to design and implement a payroll, expenses and human resource system, to be used across the Five Separate Education and Library Boards and Teachers payroll.

The ultimate issue as to how support would be provided after the Implementation Project was closed was a matter for the cross board Project Board and not a matter for the BELB. In those circumstances it was necessary to achieve the objective by the use of fixed term employees because the project would close once the implementation phase was complete and the BELB could not have known what arrangement the Project Board would make as part of the PRINCE 2 closure procedures.

Mr Megaughin in response to a question from the Tribunal Chair as to what might happen if the IFS arrangements within SEELB are not in place by 30 June of this year, could only speculate that there would have to be very senior discussions between the heads of the respective Education and Library Boards and the Department of Education as to how the matter of support could be carried forward and that this might possibly be a partnership between all five Boards or some other arrangement. In the Respondent’s submission this response underlines the fact that once the implementation phase was over the Implementation Project employees’ posts within the BELB would no longer exist, albeit that it is recognised that there was an on-going need for payroll support through some other medium such as that which actually envisaged and agreed under Option 4.

The Respondent submits that it was necessary to adhere to the objective of designing and implementing the system in order to bring the payroll and human resource systems up to date as per the evidence of Mr Bowman, and submits that for the purposes of this task limited project it was appropriate and objectively justifiable to use fixed term contracts to achieve the legitimate objective.

For the above reasons the Respondent submits that there was clear objective justification for the continued use of fixed term contracts in this situation, and that the claims of Ms McComb and Mr McCaul should be dismissed.

As regards the two BELB substantive employees the Respondent submits that they had entered into temporary contracts with the BELB which ran alongside their substantive contracts with the BELB and from which substantive posts the BELB had approved an absence for the duration of the temporary contracts and extensions thereof.

The Respondent submits that on the authority of the Northern Ireland Tribunal case of Williams and Foley v Department of the Environment (Environment and Heritage Service) Case Refs 216/07 and 880/07 it is clear that the Regulations preclude a permanent employee from being a fixed term employee. I refer the Tribunal in particular to paragraphs 3.1 to 3.5 and paragraphs 4.1 to 4.4 of that decision and adopt the reasoning of the panel in that case on this point for the purposes of this submission.

In those circumstances the Respondent submits that the Regulations do not apply to the latter two Claimants and that their claims should therefore be dismissed.

As regards the issue of whether or not in the event that the Claimants were declared to be permanent that their posts would be subject to the TUPE regulations the Respondent believes that this is not an issue to be determined by this Tribunal but I had indicated to the panel that I would address the matter in submissions at the request of the Chair. The Respondent would refer the panel to Harvey Division R which analyses the relevant analogous English provisions.

3 A relevant transfer

(1) These Regulations apply to—

(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;

(b) a service provision change, that is a situation in which—

(i) activities cease to be carried out by a person (‘a client’) on his own behalf and are carried out instead by another person on the client’s behalf (‘a contractor’);

(ii) activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (‘a subsequent contractor) on the client’s behalf; or

(iii) activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf,

and in which the conditions set out in paragraph (3) are satisfied.

(2) In this regulation ‘economic entity’ means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.

(3) The conditions referred to in paragraph (1)(b) are that—

(a) immediately before the service provision change—

(i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;

(ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and

(b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use.

(4) Subject to paragraph (1), these Regulations apply to—

(a) public and private undertakings engaged in economic activities whether or not they are operating for gain;

(b) a transfer or service provision change howsoever effected notwithstanding—

(i) that the transfer of an undertaking, business or part of an undertaking or business is governed or effected by the law of a country or territory outside the United Kingdom or that the service provision change is governed or effected by the law of a country or territory outside Great Britain;

(ii) that the employment of persons employed in the undertaking,
business or part transferred or, in the case of a service provision change, persons employed in the organised grouping of employees, is governed by any such law;

(c) a transfer of an undertaking, business or part of an undertaking or business (which may also be a service provision change) where persons employed in the undertaking, business or part transferred ordinarily work outside the United Kingdom.

(5) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a relevant transfer.

The Respondent submits that if the support function was to be transferred from one Board to another that this would not constitute a relevant transfer because it falls under 3(5). The function being transferred would be the support function which is an administrative function. It is not a transfer of an economic entity which retains its identity and neither is it a service provision change under 3(1) (a) or (b).

Please see Harvey Division F Transfer of Undertakings at paragraphs 28 and 29 which deals with administrative transfers.

I trust that these submissions are of assistance to the panel.

Anne Finegan

Counsel for the Respondent

IN THE OFFICE OF INDUSTRIAL TRIBUNALS

CASE REFERENCE NOS 1251/I0IT— 1254/10lT

McCOMB & OTHERS -v- BELB

SUPPLEMENTAL STATEMENT ON BEHALF OF THE CLAIMANTS

In the Respondents submission there are a number of points which are inaccurate or require further comment as follows:-

Page 2, Para 5: For clarification to the Tribunal the case made by all Claimants is
that the original contract issued to the claimants did not mention secondment, fixed term or any other contractual relationship. The first the issue became, at best muddled and confused by the Respondents was when the first extension letter was issued to all Claimants. In that letter (p44) the Respondent clearly indicated the terms of this contract (ie the original contract) are in accordance with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 with effect from 2002.

Page 4, Para 1: It is totally incorrect to state that Ms McComb alleges that she had terminated her employment with the SEELB in January 2003. The evidence that Ms McComb gave was that she was issued with a P45, Payment in Lieu of Holidays untaken and had been required by her employer to sign a termination form. The facts of the matter are that while a P45 may be required to ensure the correct tax is paid by an employee in their employment any employee on secondment is not required to be issued with a P45.

The Claimants reject the objective justification submitted by the Respondents, the work that has been performed, as given in evidence by Ms McComb and Mr Pollock is that they have not been involved in any implementation role since 2009. The role they have been performing since 2009 has solely been support. Therefore the Claimants would submit that the role they have performed up to 95% of the time, as given in evidence by Mr Bowman, is critical and that this shows clear evidence that

the role which has been per-formed over the currency of the Project and more latterly demonstrates unequivocally that the Respondents objective justification asset out in their submission is without foundation.

Claimants Pollock and McCullough also reject the Respondents submission in respect that the “temporary contract” effective from 1 January 2003 ran alongside their “substantive contract”. This is a unique and novel argument which brings into question the contractual relationship between an employee and an employer — can you have two separate and distinct contracts in operation at the one time? That will be a matter for the Tribunal to determine.
TUPE

In respect of the question as to whether TUPE would apply if the Tribunal determines that the posts are declared permanent. The Claimants reject the arguments submitted by the Respondents and contend the transfer, if it were to come about, would be a service provision change and would therefore fall within the scope of a relevant transfer at 1(b). In evidence submitted by both Mr Megaughin and Mr Bowman both indicated that the support moving to the SEELB was in their view a transfer of a service.

24^th May 2011

OFFICE OF INDUSTRIAL TRIBUNALS

McCOMB & OTHERS v BELB

CASE REF NOS — 1254/10IT - 1254/10IT

The following is the Claimants response to the relevance, or otherwise, of the Duncombe case referred to by the Chairman at the hearing on 26th May 2011.

It would be the contention of the Claimants that the Duncombe case supports their case as follows:

1. In the Duncombe case the work was for a defined period of time (the nine year rule) which came to an end at that point in time. The Respondents are arguing that the end of the Project is the end of the role of the Claimants. The Claimants would argue however that the end of the project is not the end of the role which has been undertaken by the Claimants almost exclusively for the last 18 months — 2 years which was confirmed in evidence by Mr Bowman. The support role, which it has been agreed by the Respondent’s Representatives in evidence, is required on an ongoing basis and therefore is not time or task limited. The support role undertaken by the Claimants could not be the “initial” support that was always envisaged at the start of the project because elements of the support were not in place at the time the initial roles and responsibilities were drawn up. Also if, as has been suggested by the Respondents, support was always required why was the necessary support arrangements not put in place after each board went live. Also the initial support after go live normally only lasts for 90 days (this is industry standard agreed with by Respondents project manager in evidence) the first board (BELB) has been live on the new system since 2005. The Claimants would argue that the support was put in the hands of a central unit as that was the best place to have support i.e. the Claimants. Also in the minutes of the project Board Mr Stan Mclvor stated that “it was never an option to wind up the project team (Page 312)”.

2. The Claimants would further contend that the support role they have been performing is integral to the continuing operation of the support function. This would continue to be the case whether the responsibility for the support function is moved from the current employer (BELB) or to another one of the organizations currently being supported – as is the case with the Respondents proposed move to SEELB.

3. The Respondents Representative stated in her summoning up that if the support role was always going to be performed within the BELB then the Claimants may well have had an argument – but went on to argue that that was never the case – she argued that it was always going to be a cross-board matter residing in one Board or another. The facts are as evidenced by Mr Bowman that his personal preferred option was Option 3 – A Central Support Team, but the Project Board chose Option 4 – Convergence with financial support team (Page 316). It was only at a late stage that the option of transferring the ongoing support role from the BELB to the SEELB became a feature. The Claimants would therefore contend that whether the role is performed in the BELB or the SEELB is a red herring – there is an ongoing need for the role, accepted by the Project Board and the Department of Education which has been performed between 90-95% of the time over the past two years and therefore the continuation of the work and the extension of the contracts confirm that these posts should be declared permanent.

4. The Duncombe case also supports the contention even if employees have a permanent post to return to they can still be considered to have the right to be protected by the fixed term legislation. It would be the Claimants’ contention that this should be the case for Mr Pollock and Mr McCullough.

5. In the Duncombe case it was argued that there was no work for the Mr Duncombe and therefore he could not be made permanent. It has been acknowledged that the support role (undertaken for 90-95 % of their time for the past 18 months) is required and will be required on an ongoing basis. The fact that the support role is being transferred, or may be transferred to the SEELB, is a red herring. It is immaterial whether responsibility for the support

function resides with BELB or any other board. As has been stated by the Respondents the support function is a 6 organisation (5 ELBs plus DE) and whichever board is responsible for the team are merely acting as paying agents on behalf of all the interested parties.

6. The Claimants would argue that as opposed to the Duncombe case where it was successfully argued that there was justification in using fixed term contracts this is not the justified in this case. In the Duncombe case it was argued that they could only be employed for 9 years and that there could be no role after that period. In this case there is no time limitation to the role which has been undertaken by the Claimants. The support role which has been the majority of the work undertaken by the Claimants for the last 2 years is not time limited and it has been acknowledged in evidence needs to continue. The Claimants would argue that the use of fixed term contracts for a role which is for an indefinite period (which the Respondents have argued they always knew about) is an abuse of the fixed term legislation. This is particularly highlighted by the most recent extension to contract which states that the Claimants will be in post until such time as the support function is set up by the SEELB. The Claimants contend that as this contract extension is for as indefinite period of time and the work is going to continue regardless of location their role should be made permanent.

7. In the Duncombe case it was argued that the Claimants had not been treated less favourably than permanent teachers and therefore they had not suffered detriment as a result of the use of fixed term contracts. The Claimants in this case would contend that they have suffered detriment in terms of career progression as a result of repeated fixed term contracts. Being employed for 8¹/₂ years in a role with a very specific skills set has placed all of the Claimants in a position where they have severely limited opportunities for career progression. This was evidenced by a member of the support team applying for a post, which at the time he would have been eminently qualified for, not being short listed for interview because of a lack of relevant recent experience.

1253/1O0IT,1254/100IT

IN THE INDUSTRIAL TRIBUNALS AND

FAIR EMPLOYMENT TRIBUNALS

BETWEEN:

MAIREAD McCOMB

DERMOT McCAUL

PETER POLLOCK

IAN McCULLOUGH

CLAIMANTS

AND

BELFAST EDUCATION AND LIBRARY BOARD

RESPONDENT

COMMENTS BY RESPONDENT ON APPLICANTS

RESPONSE TO DUNCOMBE CASE

These comments are on Paragraphs as numbered in applicant’s document:

1. The Respondent has not disputed that a support function would be
required at the end of the implementation function. The Respondent submits that the end of the project meant the end of the role for all implementation officers employed by the BELB. The project was to end on 30^th June. BELB had no further funding for such a project. The project was to conclude on that date. Thereafter support arrangements were to be determined by the cross board project board and their decision was that the support function would be carried out by the IFS service within SEELB.

2. The five education and library boards are separate and independent legal entities. There is no mechanism for transferring employees between boards. The Respondent submits that the TUPE issue is beyond the jurisdiction of this tribunal to consider in the circumstances of this claim.

3. Paragraph 3 — entirely disputed. The Respondent refers the Tribunal to its original submissions.

4. The Respondent disputes the assertion that the Duncombe case supports the contention that even if employees have a permanent post that they are entitled to the protection of the Regulations. Other than noting at paragraph S of the Judgment that in the UK teachers are employed by local education authorities or governing bodies of schools — the Judgment is entirely silent on the matter contended for by Ms Millar.

5. In the Duncombe case the work in the school that Mr. Duncombe had been teaching required to be undertaken by some other teacher. The fact was that he could not undertake it because of the operation of the 9 year rule. In this subject case, likewise, a support function would be required but outside the life of the implementation project for which these employees had been recruited specifically on time limited contracts.

6. The Respondent repeats 5. above. The Respondent further submits that the last extension was a limited extension as it specifically referred to the fact that the SEELB would be setting up the new support function.

7. The Respondent rejects the assertion that the Claimant’s ability to return to their original posts had been damaged and refers the Tribunal to the evidence of Mr. Megaughin on this point.

8. The Respondent refers the Tribunal to the Respondent’s oral submissions on the Duncombe case and in particular to paragraphs 23, 24 and 25 of the Judgment. The Respondent submits that this case is largely on all fours with the Duncombe situation in principle.

Anne Finegan