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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Knapp v Western Health and Social Care... [2012] NIIT 00237_11IT (18 January 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/00237_11IT.html
Cite as: [2012] NIIT 237_11IT, [2012] NIIT 00237_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 237/11
CLAIMANT: Dr Rolf Knapp
RESPONDENT: Western Health and Social Care Trust
DECISION
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent due to the respondent’s failure to comply with the statutory procedures and the tribunal awards the claimant £3,350.00.
(i) The claimant did not become a permanent employee of the respondent by virtue of Regulation 8 of the Fixed Term Regulations (Prevention of Less Favourable Treatment) Regulations (NI) 2002.
(ii) The termination of the claimant’s employment by the respondent amounted to a dismissal within the meaning of Article 127 of the 1996 Order.
(iii) The respondent fairly dismissed the claimant for a substantial reason namely the return of Dr O’Donohue to full duties.
(iv) The claimant was not dismissed by the respondent by reason of redundancy.
(v) The claimant is not entitled to a statutory redundancy payment under Article 170 of the 1996 Order.
(vi) The respondent did not follow a fair procedure in dismissing the claimant. In particular the respondent failed to follow Steps 1 and 2 of the statutory procedures.
(vii) The admitted breaches of Steps 1 and 2 of the Statutory Procedures render the dismissal automatically unfair pursuant to Article 130A of the Employment Rights (NI) Order 1996. However, the respondent has proved that it would have decided to dismiss the employee if it had followed the procedure.
(viii) While the claimant is entitled to a basic award of 5 weeks pay on the basis of automatic unfair dismissal. We do not consider that a compensatory award is warranted as we are satisfied that the respondent would have dismissed the claimant in any event. Accordingly, we make a 100% deduction in respect of the compensatory award.
Constitution of Tribunal:
Chairman: Mr I Wimpress
Members: Mr G Jones
Mr J Pollock
Appearances:
The claimant was represented by Ms Rachel Best, Barrister-at-Law, instructed by Gateley (Manchester) LLP.
The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by the Directorate of Legal Services, Business Services Organisation.
THE CLAIM AND THE RESPONSE
1. The claimant brought a claim of unfair dismissal and a redundancy payment arising from the termination of his employment with the respondent. The respondent denied that the claimant was unfairly dismissed or that he was made redundant.
2. The tribunal received an agreed bundle of documents and heard oral evidence from the claimant, Dr Mackin, Ann McConnell and Kate McDaid.
THE ISSUES
The following issues were agreed between the parties:-
3. (i) Was the claimant a permanent employee of the respondent by virtue of Regulation 8 of the Fixed Term Regulations (Prevention of Less Favourable Treatment) Regulations (NI) 2002;
(ii) Did the termination of the claimant’s employment by the respondent amount to a dismissal within the meaning of Article 127 of the Employment Rights (NI) Order 1996;
(iii) Did the respondent have a fair reason for dismissal;
(iv) Was the claimant’s dismissal wholly or mainly attributable to the fact that the requirements of the respondent’s business for him to carry out work of a particular kind had ceased or diminished such as to make the reason for dismissal redundancy within the meaning of Article 171 of the Employment Rights (NI) Order 1996;
(v) If the reason for the claimant’s dismissal was redundancy, is the claimant entitled to a statutory redundancy payment in accordance with Article 170 of the Employment Rights (NI) Order and/or Schedule 29 of the Consultant Terms of Conditions and Service (Northern Ireland) 2004 and a declaration that he was made redundant;
(vi) Did the respondent follow a fair procedure in dismissing the claimant;
(vii) If the respondent’s procedure for dismissing the claimant was defective in any way, does this amount to automatic unfair dismissal pursuant to Article 130A of the Employment Rights Act (NI) Order 1996. If so, has the respondent shown that such defect does not by itself make its actions unreasonable because it would have decided to dismiss the employee if it had followed the procedure;
(viii) If the claimant was unfairly, automatically or otherwise, dismissed what compensation is the claimant entitled to and what uplift on that award is the claimant entitled to.
THE FACTS
4. There was little dispute between the parties on the facts. The claimant’s date of birth is 1 May 1957. The claimant specialised in paediatric neurology especially epilepsy and ndonatology. The claimant is registered as a specialist pediatrician. The claimant first worked for the respondent as a Locum Consultant in Paediatrics in 2004 at the Erne Hospital in Enniskillen having been engaged through an employment agency as a Sessional Consultant. During this period the claimant was paid on an hourly basis.
5. The claimant was engaged because a permanent consultant, Dr O'Donohue, was unable to perform on-call duties which comprised two Programmed Activities per week. According to the respondent's Clinical Director, Dr Mackin, it was not feasible to recruit a consultant simply to perform Dr O'Donohue's on-call duties and it was therefore determined that the claimant should be employed on a full time basis and perform ten Programmed Activities per week plus two additional Programmed Activities. This was reflected in the contract documents signed the claimant.
6. From 12 April 2005 the claimant was directly employed by the respondent as a Locum Consultant on a succession of fixed term contracts and remained so employed until the termination of his employment on 8 October 2010. From October 2005 the claimant was employed on the Consultant Terms and Conditions of Service (Northern Ireland) 2004 (“TCSNI”) and was paid a Consultant’s salary. The claimant’s contract was renewed on four occasions, (11 September 2006, 21 January 2008, 7 March 2008 and 5 June 2008), which importantly was in excess of four years. The claimant could have sought a written statement from the respondent that he was a permanent employee under Regulation 9(1) of the Fixed Term Regulations (Prevention of Less Favourable Treatment) Regulations (NI) 2002 (“the 2002 Regulations”) but he did not do so.
7. On 14 May 2010 Dr Mackin sent the claimant a text message asking if he was free to have a chat that day. The claimant met with Dr Mackin and was advised that the respondent did not intend to extend the claimant’s contract beyond the end of August 2010 as Dr O’Donohue would be returning to full duties from 1 August 2010 and accordingly there was no longer a requirement for the claimant to carry out his duties. The claimant was not advised of his right to be accompanied at this meeting either in the text message or by Dr Mackin at the commencement of the meeting. Dr Mackin wrote to the claimant on 15 July 2010 and confirmed the respondent’s decision. Dr Mackin thanked the claimant for his dedication and commitment to Paediatrics in the Erne Hospital and advised him of his right to appeal the decision to the Assistant Director of Healthcare for Women and Children within 14 days.
8. By letter dated 1 August 2010, the claimant appealed the respondent’s decision to terminate his contract. The claimant’s contract was extended until the appeal procedure had been concluded. On 17 September 2010 the claimant attended an appeal hearing. The appeal panel comprised of Mrs Ann McConnell, Assistant Director of Human Resources and Ms Kate McDaid, the Assistant Director of Healthcare for Women and Children. The claimant was represented by Ms Lucinda Wright of the British Medical Association. The claimant and his representative were given a full opportunity to deal with the matter and no complaint was raised about the conduct of the appeal hearing. The claimant and his representative put forward a number of points at the hearing including the assertion that the claimant was a permanent employee. The claimant’s appeal was unsuccessful and the outcome was confirmed to the claimant by way of letter dated 8 October 2010 by Ms McDaid. The panel accepted that the Fixed Term Workers Regulations afford an employee the right to acquire permanency but pointed out that this was conditional on there being no objective justification for not making the claimant permanent and that since Dr O’Donohue, who the claimant was covering for, had returned to full practice, the Respondent had no position to allocate to the claimant.
9. The letter also reflected that the claimant had inquired whether there were any other suitable positions that he could cover for the respondent and that Dr Mackin had advised him that he was not in a position to offer the claimant a Consultant post but that there was a full-time Specialty Doctor post available at the Erne Hospital with outreach clinics in the Tyrone Hospital in Omagh. Dr Mackin told the claimant that if he wished to accept this post he should let him know by Friday 22 October 2010.
10. The claimant wrote to Dr Mackin on 22 October 2010 and advised that whilst he would be happy to continue to work for the respondent this would need to be as a Consultant and not as a Staff Grade doctor as he had been working as a Consultant for the past 7 years. The claimant viewed the position of a Staff Grade doctor as extremely junior to that of a consultant and given the length of his consultant experience and the fact that he had previously held a position as Head of Department, he did not feel that the Staff Grade post was suitable alternative employment. The claimant also sought to persuade Dr Mackin that he should be considered for the work undertaken by Dr Mabook who was also employed by the respondent as a Locum Consultant in Paediatrics and whose contract was due for review. Dr Mabook was engaged by the respondent on a fixed term contract which commenced in December 2009 with the task of introducing a new way of working which involved setting up a Consultant of the Week system. Dr Mabook was engaged for ten Programmed Activities from Tuesday to Friday as well as two Programmed Activities on-call. This scheme represents good practice and is now used in all Paedatric Departments in the United Kingdom. The basis of the scheme is that one consultant deals with all of the admissions for a week and has no other clinical responsibilities during that period.
11. The claimant's employment with the respondent terminated on 22 October 2011.
12. By letter dated 12 November 2010 the claimant raised a grievance in respect of the respondent’s failure to pay him a redundancy payment in accordance with Schedule 29 TCS NI. The claimant also stated that he did not believe that the role of Staff Grade doctor was suitable alternative employment and stated that he believed his dismissal to be automatically unfair.
13. Since leaving his employment with the respondent the claimant has secured employment at hospitals in the Republic of Ireland. From 22 December 2010 to 9 June 2011 he was employed at Our Lady, Drogheda. From 28 January 2011 to 26 August 2011 he was employed at Sligo General Hospital. The claimant is currently employed on a fixed term locum basis at Sligo General Hospital from 5 September 2011 to 31 March 2012. This contract may be extended. The annual salary for this position is 172,000 Euro. The claimant’s claim includes registration and renewal fees for the Irish Medical Council of £1428.01 and costs in respect of travel, accommodation and attending courses. A list of potential posts in Northern Ireland that the claimant would be qualified for was placed before the tribunal by the respondent. These included a Community Paediatric post in the Gransha Hospital in Derry. The claimant was not in interested in the Gransha post as it had a strong child protection element. A neo-natal post was also vacant. The claimant could have sought employment in the broader United Kingdom but chose not to because he was well settled in the Enniskillen area. The claimant was also in receipt of Jobseekers Allowance for a number of weeks in November and December 2010.
14. The tribunal’s attention was drawn to the Health and Social Services Appointment of Consultants (Northern Ireland) Regulations 1996, which make extensive provision in relation to the appointment of consultants. In order to be appointed to a permanent consultant’s position it is necessary to undergo a selection process that includes being interviewed by a panel composed in accordance with paragraph 21 of the Regulations. It was common case that the claimant did not at any stage participate in the process laid down by the Regulations.
THE LAW
15. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). What constitutes a dismissal is set out in Article 127 of the 1996 Order as follows:
(1) For the purposes of this Part an employee is dismissed by his employer if — (and, subject to paragraph (2) and Article 128, only if) -
(a) the contract under which he is employed is terminated by the employer (whether with or without notice),
(b) he is employed under a contract for a fixed term and that term expires without being renewed under the same contract, or
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.
(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if -
(a) the employer gives notice to the employee to terminate his contract of employment, and
(b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given
At Article 130 of the 1996 Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the potentially fair reasons set out at Article 130(2). If the employer shows that the employee was dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4). One potentially fair reason is that the employee is redundant [Article 130(2)(c)]. Article 170 (1)(a) provides that an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by the employer by reason of redundancy. In addition to the potentially fair reasons set out in Article 130(2), Article 130(1)(b) provides that an employee may be dismissed for “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”
Article 137 of the 1996 Order in so far as relevant provides as follows:-
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant,
(b) it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and
(c) it is shown that any of paragraphs (2A) to (7H) apply.
7D) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (unless the case is one to which paragraph (4) of that regulation applies).
Article 171(1) of the 1996 Order provides as follows:-
(1) Subject to the provisions of this Article and Articles 172 and 173, for the purposes of this Part an employee is dismissed by his employer if (and only if)—
(a) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice),
(b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed, or
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.
16. Article 174 in so far as relevant provides as follows:-
174 (1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—
(a) the fact that his employer has ceased or intends to cease—
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business—
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.
(5) In paragraph (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason.
PROCEDURAL FAIRNESS
17. Under the Employment (Northern Ireland) Order 2003, and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, an employer must follow a minimum procedure when disciplining or dismissing an employee. If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and award a minimum of four weeks’ pay if the basic award transpires to be lower than that figure under Article 146 of the 1996 Order, unless the tribunal considers that such an award would result in injustice to the employer. The tribunal must also increase any award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%. The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17).
18. The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if following the procedures correctly would have made no difference to the outcome.
19. In the present case it was agreed that the standard procedure applies which is as follows:-
“Step 1: statement of grounds for action and invitation to meeting –
1. - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
3. - (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.”
20. The consequences of failing to adhere to the relevant statutory procedure are set out in Article 130A of the 1996 Order which provides as follows:-
130A. (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.
21. Article 152(1) of the 1996 Order provides that where a tribunal makes an award of compensation for unfair dismissal the award shall consist of a basic award [Article 152(1)(a)] and a compensatory award [Article 152(1)(b)].
Article 154(1A) provides as follows:-
Where –
(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),
(b) an award of compensation falls to be made under Article 146(4), and
(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,
the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.
(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.
22. Article 157 of the 1996 Order makes provision in relation to compensation as follows:-
157. - (1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.
(4) In ascertaining the loss referred to in paragraph (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.
(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
23. In Alexander v Bridgen [2006] IRLR 422 the Employment Appeal Tribunal provided guidance on the interplay between the statutory procedures and fair or unfair dismissal as follows:-
(1) if the statutory procedures were followed and there was a breach of other procedures but the individual would have been sacked anyway, that is, the chance of dismissal was more than 50%, the dismissal is fair;
(2) if the statutory procedures were followed but there was a breach of other procedures and if the chance of dismissal was below 50% the dismissal is unfair, but a Polkey deduction can be made;
(3) if no statutory procedures were followed there is automatic unfair dismissal and four weeks pay is the minimum which must be paid and can be increased by 10 to 50% unless the award of four weeks pay would result in injustice to the employer.
24. The relevant provisions of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 are as follows:-
Regulation 1(2) of the Regulations defines a fixed term contract as follows:-
““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”.
Regulation 8 of the 2002 Regulations makes provision in respect of successive fixed term contracts as follows:-
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.
Regulation 9 of the 2002 Regulations provides as follows:
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 it 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.
25. Harvey on Industrial Relations and Employment Law provides a helpful commentary on the 2002 Regulations at R[1558] 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
26. (1) On behalf of the respondent Mr Hamill accepted that the claimant was employed for more than 4 years and could have become a permanent employee. Mr Hamill submitted that it was clear that the claimant was employed for a specific purpose namely to ensure the on-call rota was manned due to the inability of Dr O’Donohue to do so. For reasons of efficiency it was necessary to make proper use of the claimant and hence he was allocated other Programmed Activities. Mr Hamill submitted that there is no reason to doubt Dr Mackin’s evidence that in order to secure the services of a consultant to perform the two on-call Programmed Activities it was necessary to put together a package for the other ten Programmed Activities. Mr Hamill submitted that Dr Mackin’s evidence was honest and credible and completely undercut the claimant’s evidence about the nature of the job and the alleged redundancy. It was a necessary overspend of the budget and this tells against the contention that the job was permanent. In relation to the 2002 Regulations Mr Hamill submitted that there was an objective justification not to make the claimant permanent due to the return of Dr O’Donohue. In Mr Hamill’s submission one could not have a more legitimate objective. There was a continuing need to achieve this objective and it was an appropriate way to achieve this objective. There is no evidence that the claimant was dismissed for any reason other than the expiry of his fixed-term contract. Mr Hamill submitted that the of a termination a fixed-term contract resulting in dismissal did not amount to “less favourable treatment” and placed reliance on Harvey at 166 and DWP v Webley [2005] IRCR CA. Mr Hamill contended that in the present case the respondent was in terms of Regulation 1(2)) of the 2002 Regulations “waiting on event” namely the return of Dr O’Donohue. On behalf of the claimant Ms Best placed reliance on Dunscombe and in particular how the Supreme Court dealt with the effect of Regulation 8. Ms Best drew attention to paragraph 2 of Lady Hale’s speech where she states that the question for the industrial tribunal is whether or not the last fixed-term contract is turned into a permanent contract when the employee hits the fourth contract in succession. Ms Best also submitted that the respondent must show precise circumstances that are capable of justifying the use of a fixed-term contract in accordance with the case of Zentralbetriebsrat der Landeskrankenhauser Tirols (Social Policy) [2010] EUECJ C-486/08 (22 April 2010) [2010] IRLR 631. The question is whether the last fixed-term contract is objectively justified. Ms Best submitted that an objective justification was not made out in respect of the claimant’s final fixed-term contract because although the respondent advanced the need to cover Dr O’Donohue’s on call role as the reason, the claimant was given twelve Programmed Activities rather than the two Programmed Activities that were required for the on call work. Accordingly there is no justification for using a fixed-term rather than a permanent contract.
(2) The respondent accepted that the termination of a fixed term contract equated to dismissal under Article 127.
(3) Mr Hamill submitted that if the claimant was a fixed-term employee, there was a fair reason for dismissal as the contract had come to an end because the temporary post had ended. In the alternative Mr Hamill submitted that if there is temporary engagement and this was made clear, the dismissal fell under “some other substantive reason”. Mr Hamill submitted that replacing a worker who is not available where it was necessary so that the business could operate was a genuine purpose because it was done for a particular job or task. If it is shown that it amounts to a genuine purpose, then in Mr Hamill’s submission these facts are capable of constituting “some other substantial reason” and referred the tribunal to Harvey, D1, 1871. The passage in Harvey reads as follows:
“Where an employee has been taken on under a temporary contract and it has been made clear to him that the contract is of this nature, the refusal to renew it is likely to constitute a fair dismissal being for a substantial reason. The leading case is Terry v East Sussex County Council [1977] 1 All ER 567, [1976] ICR 536 where the EAT accepted that the nature of the employment might justify the dismissal. However, it emphasised that the tribunal must ‘ensure that the case is a genuine one where the employee has to his own knowledge been employed for a particular period, or a particular job, on a temporary basis’, and that employees should not be deprived of their rights by ‘ordinary employment contracts being dressed up in the form of temporary fixed-term contracts’. This approach has been confirmed as being correct by the Court of Appeal in North Yorkshire Council v Fay [1985] IRLR 247.”
Placing reliance on this passage, Mr Hamill submitted that the need must be genuine and be for a particular job or a particular task. In Mr Hamill’s submission if it is shown that it amounts to a genuine purpose then these facts are capable of contributing “some other substantial reason”.Ms Best submitted that if the tribunal found that the claimant was a permanent employee, no fair reason had been advanced for his dismissal. If the claimant is found to be a fixed term employee the tribunal must consider the fairness of his dismissal.
(4) In relation to redundancy, Mr Hamill submitted that there was not a redundancy situation. The respondent was obliged to provide a service and there was an absolute requirement for four doctors to be on the on-call rota and that once the two on-call Programmed Activities were covered everything else was a bonus. The work remains but is now done by Dr O’Donohue. There was no reduction in the need to provide the service. The extra work undertaken by the claimant was a bi-product and was a responsible use of public funds. Therefore Mr Hamill submitted there is no redundancy situation. Mr Hamill submitted that it was necessary to look at what occurred in relation to the provision of health services when the claimant left. Mr Hamill drew attention to Dr Mackin’s unchallenged evidence that the waiting times were increasing and that he obtained funding for extra clinics. There is no suggestion that the consultants were not working flat out or doing their best. The respondent was very grateful to secure the claimant’s services and to get more time out of him than two Programmed Activities. There was no reduction in the amount of work to be done or the need to get more of a particular kind done. Ms Best submitted that there were contradictions in the respondent’s case in contending on the one hand that there was no more need for the claimant and on the other hand that it was not a redundancy situation. According to Ms Best there was either a need for the work to be done or there was not. Ms Best placed reliance on the Department of Trade and Industry 2002 Guide which indicated that fixed-term workers have the same rights of redundancy if they have two years service and there is a finding of redundancy.
(5) Mr Hamill submitted that the claimant was not entitled to a redundancy payment. Mr Hamill accepted that fixed-term employees can be eligible for redundancy payments but maintained that this is a not a redundancy situation. Mr Hamill cited Webley as authority for submitting that this was not less favourable treatment. Mr Hamill submitted that if the tribunal was against the respondent on redundancy it must consider the issue of suitable alternative employment. Mr Hamill accepted that the claimant had been given reasons for not being interested in the Community Paediatric post in Gransha. Mr Hamill accepted that a Speciality Doctor role would result in a drop in pay and status for the claimant but that this was undermined by the fact that the claimant now works on that basis in an hospital in the Republic of Ireland. Ms Best submitted that if the tribunal found that the claimant was dismissed for redundancy he is entitled to a redundancy payment. In relation to the Community Paediatric role Ms Best pointed out that no actual post was offered to the claimant which he refused. In Ms Best’s submission if the respondent considered that this was suitable alternative employment and the post was not offered to the claimant this would go to the fairness of the dismissal. Ms Best submitted that it was not unrealistic for a consultant to reject an offer of a Speciality Doctor role as it was a more junior role. Ms Best accepted that ultimately it was a factual matter for the tribunal to decide whether there was suitable alternative employment available.
(6) Mr Hamill accepted that the respondent failed to follow Steps 1 and 2 of the standard procedure and that automatic unfair dismissal would therefore be a possible outcome but claimed that there was no detriment. The claimant knew for the previous year what might happen and formed a strategy to say nothing and keep his head down. He had an appeal, where he was represented by the British Medical Association, to make all the arguments. The appeal panel considered all of the matters and if there was a defect it was remedied. The claimant suggested that Dr Mabook should have been dismissed but she was employed on a different basis and the respondent does not operate a “first in, last out” rule. It would therefore have made no difference. Mr Hamill contended any uplift awarded should be limited to 10%. Ms Best submitted that the failure to follow the statutory procedure could not be cured or remedied by the appeal and placed reliance on section 13.6 of Tolley’s Employment Handbook in this regard. The dismissal was therefore automatically unfair due to the failure to comply with the statutory procedure. In relation to uplift Ms Best submitted that this was a flagrant breach and the appropriate uplift in compensation would be 50%. Furthermore, no reason was given by the respondent for not following the statutory procedures. Ms Best reminded the tribunal that the Assistant Human Resources Director gave evidence and that the size and resources of the Trust is a factor. Ms Best rejected the “no detriment” argument and pointed out that the statutory procedures are there for a clear reason.
(7) In relation to loss of earnings Mr Hamill submitted that the claimant had found some employment. The claimant wanted to continue working in the same geographical area but he was obliged to mitigate his loss. If he chose not to pursue employment in England, it is his choice to limit himself to a geographical area. It is questionable how much financial loss there is, and if there is any it can be recovered. The claimant could have minimized his loss by utilising the United Kingdom market. He has also not actively sought more junior positions. Mr Hamill pointed out that the argument that these posts would be beneath him could equally apply to a managing director in a business context and the claimant was obliged to take all reasonable steps to mitigate his loss and had not done so. Furthermore as the claimant is intent on staying in Sligo he had no future loss. Mr Hamill also queried the claimant’s alleged loss in respect of registration fees and travel. He accepted however that it was properly a matter for the tribunal’s discretion. Ms Best submitted that the claimant was entitled to 4 weeks pay for automatic unfair dismissal. In relation to expenses Ms Best submitted in reliance on paragraph 2.561 of Harvey, that the tribunal could make an award in respect of any loss following from the dismissal including the cost of getting new employment and registration fees. The claimant needed registration to practice in the Republic of Ireland. The claimant sought to obtain work and has secured work in Sligo until 31 March 2012 and therefore it was unfair to say that he is not seeking to mitigate his loss. Ms Best submitted that this was not a high hurdle or burden for the claimant.
CONCLUSIONS
27. (i) We are satisfied that the claimant did not become a permanent employee of the respondent by virtue of Regulation 8 of the Fixed Term Regulations (Prevention of Less Favourable Treatment) Regulations (NI) 2002. In our view the final fixed term contract was objectively justified on the basis that the need continued to exist for the claimant to perform Dr O’Donohue’s on-call duties and there was no suggestion that Dr O’Donohue’s inability would be permanent. On the contrary he was able to return to normal duties and for a period he worked in tandem with the claimant but this was not sustainable in the long term as the need was for four rather than five doctors. The fact that it was possible to gainfully employ the claimant and provide him with ten in hours programmed activities was a bonus as far as the respondent was concerned but this did not mean that there was a permanent post at the hospital. The evidence establishes that to be employed as a consultant on a permanent basis it is necessary to sit an interview board convened under the Health and Social Services Appointment of Consultants (Northern Ireland) Regulations 1996, and the claimant did not fulfill that requirement for the simple reason that no such post was available. The claimant could of course have sought a declaration of permanence from his employer but did not do so. We do not criticise the claimant for this as it would have carried an obvious risk that his employment would have been terminated at an earlier point in time.
(ii) It was agreed by the parties and we are satisfied that the termination of the claimant’s employment by the respondent amounted to a dismissal within the meaning of Article 127 of the 1996 Order.
(iii) We are satisfied that the respondent had a fair reason for dismissal namely some other substantial reason. We accept Mr Hamill’s submission based on paragraph 1871 of Harvey. The claimant knew from the outset that he was taken on due to the inability of Dr O’Donohue. We are entirely satisfied that this was genuine and that the respondent was not using a fixed-term contract in order to deprive the claimant of his rights.
(iv) We are satisfied that there was not a redundancy situation. While the claimant’s post is no longer available to him the work has neither disappeared or diminished. The post remained and but is now being undertaken by Dr O’Donohue as a result of his return to full capacity. We accept Ms Best’s submission that the termination of a fixed term contract can constitute a redundancy dismissal within Article 171 of the 1996 Order but in the particular circumstances of this case with Dr O’Donohue returning to full duties and replacing the claimant we do not consider that this can be said to constitute a redundancy dismissal. We further consider that the reference to Dr Mabook’s position is misplaced. The claimant did not seek to make a case of less favourable treatment under the 2002 Regulations as such and in any event were such a case to have any prospect of success it would be necessary to identify a permanent employee as a comparator and the evidence establishes that Dr Mabook was like the claimant a fixed-term employee. The agreed issues also address the redundancy provisions contained in Schedule 29 of the Consultant Terms of Conditions and Service (Northern Ireland) 2004. As Ms Best made clear the claimant intends pursuing contractual redundancy in the civil courts. We were not specifically addressed on Schedule 29. Schedule 29 mirrors the statutory redundancy provisions and in view of our conclusion in relation to statutory redundancy it cannot avail the claimant on Schedule 29. We do not intend to pass further comment on Schedule 29 other than to record that it does not appear to add anything of direct assistance to us in determining the issues before the tribunal.
(v) In view of our conclusion at (iv) above the claimant is not entitled to a statutory redundancy payment under Article 170 of the 1996 Order.
(vi) The respondent did not follow a fair procedure in dismissing the claimant. In particular the respondent failed to follow Steps 1 and 2 of the statutory procedures. The respondent neglected to write to the claimant to inform him that the respondent was contemplating dismissing him or inform the claimant that he had the right to be accompanied at such a meeting. In fact it was not a proper meeting at all. As a result of this failure the first opportunity that the claimant had to discuss the termination of his employment with the respondent and to be accompanied was at appeal hearing. While there was no complaint about the conduct of the appeal hearing we accept Ms Best’s submission that the failure to follow the statutory procedure is not capable of being remedied or cured by an appeal.
(vii) We find that the admitted breaches of Steps 1 and 2 of the Statutory Procedures render the dismissal automatically unfair pursuant to Article 130A of the Employment Rights Act (NI) Order 1996. However, the respondent has proved that it would have decided to dismiss the employee if it had followed the procedure.
(viii) While the claimant is entitled to a basic award of 5 weeks pay on the basis of automatic unfair dismissal we do not consider that a compensatory award is warranted as we are satisfied that the respondent would have dismissed the claimant in any event. It is not open to us to find the claimant to have been fairly dismissed despite a breach of the statutory procedures. We adopt the approach of Elias J in Alexander v Bridgen. However, although the dismissal of the claimant was automatically unfair, as set out above, the tribunal is still entitled to have regard, if appropriate, to the principles set out in Polkey v AE Dayton Services Ltd [1988] ICR 344. In the case of Goodin v Toshiba [UKEAT/0271/08] it was held there could be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the tribunal was satisfied that the breaches of procedure would have made no difference to the dismissal. Applying this case law we make a 100% deduction in respect of the compensatory award. The parties diverged considerably as to the value of the compensatory award. In view of our decision that the compensatory award is extinguished we do not consider it necessary to embark on the challenging task of determining the precise value of a such an award in this case as our decision renders this hypothetical.
AWARD
28. Basic Award £380.00 x 1.5 x 5 weeks £2,850.00
Loss of Statutory Rights £500.00
TOTAL AWARD £3,350.00
29. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. Rule 4(3) requires that the tribunal set out:-
(a) the monetary award;
(b) the amount of the prescribed element, if any;
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
30. For the purposes of these proceedings the monetary award is £3,350.00. The prescribed element is the amount of compensation for loss of earnings up to the date of the hearing. The tribunal finds that the amount of the prescribed element is zero. The amount by which the monetary award exceeds the prescribed element in this case is £3,350.00.
31. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 28-29 September 2011, Belfast.
Date decision recorded in register and issued to parties: