EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 5
Lord Brodie Lord Bracadale Lord Drummond Young	XA90/12 OPINION OF LORD BRODIE in an appeal to the Court of Session under Section 37(1) of the Employment Tribunals Act 1996 against a decision of the Employment Appeal Tribunal which was intimated to parties on 13 February 2012 by UNIVERSITY COLLEGE UNION Applicant and Appellant; against THE UNIVERSITY OF STIRLING Respondents: _______________

Act: O'Neill QC; Maclay Murray & Spens LLP

Alt: Napier QC; Anderson Strathern LLP

14 January 2014

Introduction

[1] This is an appeal, under section 37(1) of the Employment Tribunals Act 1996, against a decision of the Employment Appeal Tribunal of 13 February 2012 upholding an appeal from the decision from an employment tribunal (constituted by a single employment judge), sitting at Glasgow, registered on 26 November 2010. The appellant before this court and claimant before the employment tribunal is the University College Union ("the appellant"). The respondent is the University of Stirling.

[2] The appeal concerns the incidence of the obligation, imposed by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, in the event of an employer proposing to dismiss as redundant 20 or more employees at an establishment, requiring the employer to consult about the dismissal with the appropriate representatives of the employees.

[3] Following a pre-hearing review, the employment tribunal concluded in respect of three out of four employees employed under contracts limited by time or by reference to a specific event (fixed-term contracts or "FTCs") who had been selected as test cases, that the discharge of their contracts by the effluxion of time, while amounting to dismissals did not amount to dismissals "for a reason related to the individual concerned" and accordingly were dismissals as redundant for the purpose of section 188 of the 1992 Act with the result that there had been an obligation to consult with the appellant (which had not been obtempered). By the time of the hearing before the Appeal Tribunal parties had agreed that in fact all four of the selected employees had been dismissed and the Appeal Tribunal proceeded on that basis. However, it found that a reason for the dismissals did indeed relate to the individuals concerned and the Appeal Tribunal therefore concluded that, having regard to the terms of section 195 of the 1992 Act, the dismissals were excluded from the ambit of section 188.

Applicable legislative provisions

[4] Council Directive 98/59/EC (the "Collective Redundancy Directive") provides:

"Article 1

1. For the purposes of this Directive:

(a) 'collective redundancies' means dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is:

(i) either, over a period of 30 days:

- at least 10 in establishments normally employing more than 20 and less than 100 workers,

- at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers,

- at least 30 in establishments normally employing 300 workers or more,

(ii) or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question:

(b) 'workers' representatives' means the workers' representatives provided for by the laws or practices of the Member States.

For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations of an employment contract which occur on the employer's initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies.

2. This Directive shall not apply to:

(a) collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts;

(b) workers employed by public administrative bodies or by establishments governed by public law (or, in Member States where this concept is unknown, by equivalent bodies);

(c) the crews of seagoing vessels."

[5] Council Directive 1999/70/EC provides inter alia as follows:

"Article 1

The purpose of the Directive is to put into effect the framework agreement on fixed-term contracts concluded on 18 March 1999 between the general cross-industry organisations (ETUC, UNICE and CEEP) annexed hereto.

Article 2

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 10 July 2001, or shall ensure that, by that date at the latest, management and labour have introduced the necessary measures by agreement, the Member States being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.

...

Principle of non-discrimination (clause 4)

1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.

2. Where appropriate, the principle of pro rata temporis shall apply.

3. The arrangements for the application of this clause shall be defined by the Member States after consultation with the social partners and/or the social partners, having regard to Community law and national law, collective agreements and practice.

4. Period-of service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of service qualifications are justified on objective grounds."

[6] The Trade Union and Labour Relations (Consolidation) Act 1992 provides, inter alia, as follows:

"188 - Duty of employer to consult representatives

(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals

(1A) The consultation shall begin in good time and in any event -

(a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and

(b) otherwise, at least 30 days,

before the first of the dismissals takes effect.

...

(2) The consultation shall include consultation about ways of -

(a) avoiding the dismissals,

(b) reducing the numbers of employees to be dismissed, and

(c) mitigating the consequences of the dismissals,

and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

...

(4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives -

(a) the reasons for his proposals,

(b) the numbers and description of employees whom it is proposed to dismiss as redundant,

(c) the total number of employees of any such description employed by the employer at the establishment in question,

(d) the proposed method of selecting the employees who may be dismissed,

(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect and,

(f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed.

...

195. - Construction of references to dismissal as redundant etc.

(1) In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related.

(2) For the purposes of any proceedings under this Chapter where an employee is or is proposed to be dismissed it shall be presumed, unless the contrary is proved, that he is or is proposed to be dismissed as redundant.

...

282 Short-term employment

(1) The provisions of Chapter II of Part IV (procedure for handling redundancies) do not apply to employment -

(a) under a contract for a fixed term of three months or less, or

(b) under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,

where the employee has not been continuously employed for a period of more than three months."

[7] The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 provide as follows:

"3. - Less favourable treatment of fixed-term employees

(1) A fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee -

(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) Subject to paragraphs (3) and (4), the right conferred by paragraph (1) includes in particular the right of the fixed-term employee in question not to be treated less favourably than the employer treats a comparable permanent employee in relation to -

(a) any period of service qualification relating to any particular condition of service,

(b) the opportunity to receive training, or

(c) the opportunity to secure any permanent position in the establishment.

(3) The right conferred by paragraph (1) applies only if -

(a) the treatment is on the ground that the employee is a fixed-term employee, and

(b) the treatment is not justified on objective grounds.

(4) Paragraph (3)(b) is subject to regulation 4."

Proceedings before the employment tribunal

[8] Proceedings before the employment tribunal included a case management discussion, held on 9 June 2010. In the course of that discussion parties agreed that there were issues between them which could conveniently be considered and determined at a pre-hearing review. The first of these issues and the only one determined by the employment tribunal in its decision registered on 26 November 2010 was stated as follows:

"...whether, in respect of any of the test case employees, that employee was dismissed as redundant within the meaning of Section 195 of the 1992 Act, and, if so, which of them."

[9] Parties agreed a statement of fact for the purpose of the pre-hearing review (held on 11 to 14 October 2010). In addition, the respondent led the evidence of Professor Ian Alexander Simpson, a Deputy Principal of the respondent. He spoke to matters pertinent to the practice of the respondent of engaging employees (mainly post-doctoral research assistants) to carry out research work in respect of projects funded by third party organisations. The appellant did not lead any witness. The oral evidence concerned only one of the test cases, that of Dr Harris. The employment tribunal raised with parties prior to closing submissions, the absence of evidence relating to the three other cases. The parties then agreed that the documentary productions relating to the other test case employees were what they purported to be and that the employment tribunal could take these documents as part of the evidence before it.

[10] The names and circumstances of the four employees who were the subjects of the test cases were: Dr Harris - employed for a research project dependent on outside funding; Dr Doyle - employed to deliver three specific undergraduate modules; Ms Fife - employed to provide maternity leave cover and thereafter for three short terms limited in time; and Dr Kelly - employed to provide sick leave cover.

[11] On the basis of the essentially uncontroversial evidence of Professor Simpson and what had been agreed between the parties, the employment tribunal accepted and adopted the agreed facts which included:

"16. Universities such as the Respondent due to the nature of the organisation and the work they carry out had traditionally employed a significant number of employees (in both academic and non academic posts) on FTC.

17. The nature of FTC at the Respondent varies according to each individual case. Such contracts are typically used in the following circumstances: (a) the end of funding arrangements, (b) the cessation of grant, (c) the return of maternity leave staff/sick leave cover, (d) completion of the project upon which the FTC employee was engaged."

In addition, the employment tribunal made eleven express findings in fact which are set out at paragraph 22 of the employment tribunal's judgment as follows:

"(1) Dr Harris was engaged as a post-doctoral research assistant pursuant to a limited-term contract made in or about July 2007, work commencing on 1 September 2008. The contract was renewed for a limited-term due to expire on 16 August 2009. The respondent resolved not to renew that contract. Upon being notified of that decision, Dr Harris was invited to a meeting pursuant to the respondent's policy (which also provided for a right of appeal). Dr Harris declined the offer of meeting to discuss matters as she had found employment elsewhere.

(2) It is common practice for the respondent, through its academic staff, to seek funding to carry out research projects. Commonly, a member of the academic staff will draft a research proposal as "principal investigator" with a view to funds being granted sufficient to allow for the employment of a (usually, post-doctoral) research assistant who will work under the supervision of the principal investigator.

(3) At the respondent university principal investigators would not be responsible for more than two projects at any one time and, generally a project requires the employment of a single research assistant.

(4) It is commonplace for such research assistants to be engaged on contracts limited by time or by the task to be carried out, that is on limited-term contracts.

(5) In essence, the employee is tied to the funds made available to support the research. Ordinarily, the employment of the research assistant would not be extended unless the funding provider makes additional funding available for the original research or new funding is won for a further project for which the research assistant has suitable skills and knowledge.

(6) The respondent's practices in relation to the employment of research assistants are consistent with those of comparable academic institutions.

(7) There is a body of people, whom Professor Simpson referred to as the "research community" who move from institution to institution following opportunities to conduct research. Such a system benefits the individual, the academic institutions and the sum of scientific knowledge generally as skills and knowledge are shared.

(8) The respondent has in place a procedure whereby limited-term contract employees facing the termination of their employment are invited to a meeting to discuss matters. There is a right of appeal.

(9) Dr Doyle was engaged pursuant to a fixed term contract to co-ordinate and deliver three undergraduate modules in English Studies in the Spring 2009 semester, ending on 29 May 2009. The contract was not renewed as the semester had ended.

(10) Ms Charlotte Mary Fife was engaged to provide maternity leave cover for the six months ending on 2 May 2009. That employment was extended for a further limited-term until 4 September 2009 and, again, until 9 October 2009. Thereafter, Ms Fife was employed on what was described as a "casual basis" for the period 10 October 2009 until 10 September 2010.

(11) Ms Kelly was initially engaged for one month in July 2007 and then from 1 October 2007 until 31 March 2008. Thereafter, the employment was extended until 30 September 2008 and, further, to 30 September 2009. The final extension was partly because Ms Kelly was a named researcher on a number of projects and partly because a colleague was to be working reduced hours following a return from maternity leave."

[12] At paragraph 10 of the Appeal Tribunal's judgment there is recorded a concession by counsel for the appellant that these express findings made by the employment tribunal should be supplemented. Paragraph 10 of the Appeal Tribunal's judgment is in these terms:

"In all four cases, at least one of the reasons for dismissal related to the fact that the employee had agreed to accept that the contract under which they were employed would come to an end at a particular time or on the occurrence of a particular event. That factual summary was included in Mr Napier's skeleton argument and Mr White confirmed, in the course of the appeal hearing, that the claimant accepted that it was correct."

[13] In its judgment of 26 November 2010, the employment tribunal reviewed the history of the domestic law provisions enacted to transpose the Collective Redundancy Directive, which are now contained in the 1992 Act, as amended. It noted that the domestic legislation and the Collective Redundancy Directive had not always marched in step. Infraction proceedings had been brought against the United Kingdom by the Commission: Commission of the European Communities v United Kingdom Case - 383/92 [1994] ECR 1-2479, [1994] IRLR 412, on the basis that the Directive had not been correctly transposed by the United Kingdom. The wording of the critical expression which the employment tribunal was called on to construe: "dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related" was, according to the tribunal, "lifted from the Directive" (in the English text the Directive's definition of "collective redundancies" is "dismissals effected by an employer for one or more reasons not related to the individual workers concerned").

[14] Having identified how the wording of section 195(2) of the 1992 Act came to be enacted, the employment tribunal turned to consider what it meant. It noted that "reason" for dismissal was a set of facts known to or beliefs held by an employer that cause him to dismiss: Abernethy v Mott Hay & Anderson [1974] IRLR 213. Accordingly, it was not enough for the respondent to show a single fact that was personal to the individual concerned; it was the set of facts amounting to a reason that must relate to the individual if the duty to consult was to be excluded. In the opinion of the employment tribunal the expression "for a reason not related to an individual" was not clear and unambiguous. In the tribunal's view, it was inevitable that the reason for a dismissal, even a dismissal by reason of redundancy (using the term as it appears in the Employment Rights Act 1996) will relate to the individual concerned. The employment tribunal therefore concluded that for a dismissal to be excluded from the duty to consult, the required relationship between the individual and the reason for dismissal must be a close and direct one with a reason personal to the individual, such as the employee's conduct or capability, being identified rather than the employee's job or the employer's need to have work done.

[15] The employment tribunal then identified essentially five factors which it considered supported its construction of section 195(1). It discussed these factors as follows in paragraphs 52 to 56 of its judgment:

"52. Such a construction is consistent with a broadening of the definition of redundancy as originally enacted in the 1992 Act to include dismissals in connection with business reorganisations which fall short of the definition of redundancy in the 1996 Act and technical dismissals of the "dismiss and offer re-engagement on new terms" type.

53. Such a construction would be consistent with the application of the "mischief rule". The United Kingdom's stance, as reported in the infraction proceedings, was that the amendment to Section 195 of the 1992 Act made by the 1993 Act was to remedy the defective transposition of the Directive into UK domestic law. The mischief addressed by the amendment was the need to correct the defective transposition.

54 On the law prior to that amendment, [NATFHE v Manchester City Council [1978] ICR 1190] is clear authority for the proposition that the duty to consult bites upon the dismissal of employees engaged on limited-term contracts. A question for the Tribunal is whether Parliament intended whilst broadening the range of dismissals that would fall within the collective consultation provisions, also to remove the protection of the collective consultation provisions from limited-term contract holders or, at least, from holders of limited-term contracts of the kind seen in the test cases identified to the Tribunal.

55. It was plainly open to the United Kingdom to exclude limited-term contract holders from the collective consultation regime, save in the case of early termination. In enacting the provisions of the 1975 Act, the United Kingdom extended the protection of collective consultation to those employed on fixed term contracts of a term of more than three months and to those employed on fixed term contracts for more than three months. Applying the canon of construction embraced in the expression "expressio unius est exclusio alterius" the stipulation of those limited-term contract holders who would be excluded from the right to collective consultation implies that other employees holding limited-term contracts were intended to be within the scope of the collective consultation provisions.

56. The Tribunal has been shown no extrinsic material to suggest that Parliament intended, in amending the 1992 Act so as to broaden the range of dismissals that would trigger the duty to consult, also to narrow the range of employees who would have that protection, whether by excluding limited-term contract holders generally or, more specifically by excluding employees engaged on limited-term contracts in circumstances akin to those of the test case employees before the Tribunal."

[16] The employment tribunal then discussed and rejected the suggestions that the circumstances of the determination of the test case FTCs did not easily bear the label "collective" and that by entering into an FTC the employee could be said to consent to his dismissal at its termination.

[17] The tribunal concluded that it was not persuaded that the long established use of limited-term contracts in respect of research posts, the benefit of such arrangements to researchers, institutions and the body of knowledge and skills and the fact that members of the research community enter into such arrangements in full knowledge of the way the system works provide reasons to exclude such individuals from the duty to consult. As the four test cases fell within the class of cases in respect of which there was a duty to consult, on their dismissal the duty was engaged.

Submissions

Appellant - first speech

[18] As ordered by the court, parties lodged written notes of argument. The note of argument for the appellant was lodged on 20 September 2012. There was also lodged on behalf of the appellant a supplementary note of argument dated 15 April 2013. I shall have something further to say about this essentially discursive document, but its contents were not developed by Mr O'Neill in oral argument, beyond some limited reference in support of the proposal, made in Mr O'Neill's second speech, that this court should make a reference of an identified question to the European Court of Justice. In his first speech Mr O'Neill confined himself to submissions which followed the note of argument of 20 September 2012. These I now summarise.

[19] Mr O'Neill reminded the court that although in form this was an appeal against the decision of the Employment Appeal Tribunal, the essential question was whether, in coming to the decision it had, the employment tribunal had got it right. There was, however, a further matter, that being whether the Appeal Tribunal had exceeded its jurisdiction. That jurisdiction was limited to appeals on point of law. It was not open to the Appeal Tribunal to go behind the employment tribunal's findings on matters of fact.

[20] The legal issue, as identified by Mr O'Neill, was whether workers on FTCs could be treated differently from workers on open-ended contracts ("OECs") when dismissals were in contemplation. It was the appellant's submission that there must be equality of treatment, at least in relation to consultation, which was the only matter of concern in the present case. The tribunal had come to the right result - equality of treatment. The Appeal Tribunal, however, had found that workers on FTCs were to be treated differently from those on OECs. That had been wrong. There could not be discrimination without justification.

[21] Mr O'Neill confirmed that the way parties had chosen to proceed before the employment tribunal was by way of a legal debate on the basis of facts that were not in dispute. That debate was about the construction of domestic legislation but, as that legislation had been enacted to transpose the Collective Redundancy Directive, the matter fell within European Union law and therefore required to be understood by reference to the relevant European principles. It was to be borne in mind that collective redundancy, as addressed in the Directive ("dismissals effected by an employer for one or more reasons not related to the individual workers concerned"), was different from "redundancy", as defined by section 139 of the Employment Rights Act 1996: Case C- 383/92 Commission of the European Communities v UK supra. The Directive's concept of collective redundancy was best thought of as a situation where what was in contemplation were multiple lay-offs: in other words a number of terminations of the contract of employment against the will of the workers concerned: Case C-55/02 Commission of the European Communities v Portugal [2004] ECR 1-9387 at paras 49-50, 60 and 62). The purpose of the Directive was to safeguard the social protection rights of employees through the mechanism of the imposition of obligations to provide information and to consult. Domestic legislation must be interpreted, and, if necessary, dis-applied, in order to make these obligations, and their correlative rights, effective. That followed from the requirement for member states to provide effective remedies: Treaty on the European Union article 19 (1); European Union Charter of Fundamental Rights articles 6 (1), 27, 47 and 51. As the respondent was an emanation of the state, the Directive had direct effect but, in any event, the principle of indirect effect meant that national law had to be interpreted, as far as was possible, in such a way as to achieve the objective of the Directive: Litster v Forth Dry Dock & Engineering Co Ltd 1989 SC (HL) 96. The Collective Redundancy Directive did not apply to redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or completion: Directive article 1 (2)(a); but it did not affect the right of member states to make provisions which were more favourable to workers: Directive article 5. In transposing the Directive the United Kingdom government had not taken the opportunity to "carve out" workers employed on FTCs from the protection afforded by chapter II of Part IV of the 1992 Act (or at least had not done so prior to the amendment of the 1992 Act with effect from 6 April 2013 in terms of the Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013). That the Directive required to make express provision for the exclusion of workers on FTCs, in terms of article 1 (2)(a), indicated that were it not for that exclusion, termination of their contracts would constitute a collective redundancy. Thus, where, as is the case with chapter II of Part IV of the 1992 Act, there is a "copy out" of the article 1(1)(a) definition of what constitutes "collective redundancies" but no provision in the national legislation corresponding to the article 1(2)(a) exclusion of FTCs, the result is that, on a proper construction of that national legislation in the light of the Directive, multiple FTCs which are not renewed but allowed to expire by the effluxion of time fall within the concept of collective redundancy for the purpose of the statutory obligation to inform and consult.

[22] That the Collective Redundancy Directive did not require member states to implement provisions providing for consultation on the termination of FTCs did not mean, as the respondent contended, that the dismissals in the present case fell outwith the scope of the Directive. It would have been contrary to the recitals in the preamble to the Directive (referring to the objective of greater protection) and unlawful, for the United Kingdom to use the opportunity afforded by the amendment of the 1992 Act with a view to a better transposition of the Directive, to decrease the protection already afforded by the UK legislation. The United Kingdom could only legitimately improve on the existing level of protection afforded by national law. There was an inter-relationship between the Collective Redundancy Directive, and Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work (the "Fixed-term Workers Directive"), transposed into United Kingdom law by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034, but in any event held by the European Court of Justice to have direct effect in Impact v Minister for Agriculture and Food [2008] ECR I-2483.

[23] On the facts found by the employment tribunal, and summarised by the Employment Appeal Tribunal at para 7 of its judgment, the respondent had a practice of not renewing FTCs on their expiry; that practice was not a result of factors relating to particular employees as individuals (such as their conduct, progress or capability) but rather was based on the kind of contract under which they worked; and the respondent relied on the same reason in respect of each of the test cases. On a proper analysis of the Appeal Tribunal's decision the "reason for dismissal" was entering into a FTC. This was to treat workers employed on FTCs, as a class, differently from workers employed on OECs. Dismissal occurred when the FTC came to an end by the effluxion of time or the return of a colleague from maternity leave. That had nothing to do with the individual employee.

Appellant - supplementary note of argument and proposed article 267 reference

[24] The appellant's supplementary note of argument extends to 30 pages containing 60 footnotes and more than 40 references to decided cases, some of which, but by no means all, were included in the Joint List of Authorities which parties had been ordained to lodge. It has more of the flavour of a learned article than an aid to advocacy.

[25] The supplementary note begins by explaining, as is touched on above, that with effect from 6 April 2013, the Trade Union and Labour Relations (Consolidation) Act 1992 has been amended by the Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013, SI 2013/763 (the "2013 Order"). The 2013 Order was made by the Secretary of State under powers conferred by sections 197(1)(a) and 286(2) of the 1992 Act. The effect of the amendment is that the provisions of chapter II of Part IV of the 1992 Act now do not apply to employment under a fixed term contract.

[26] The supplementary note then discusses a number of topics: the power of the courts to subject subordinate legislation to judicial review, the protection for workers' rights in EU law by means which include the Fixed-term Workers Directive, "standstill clauses" and the preservation of existing levels of rights in national law (the "non-regression" principle), the evolution of the government's decision to exclude fixed-term workers from the provisions of chapter II of Part IV of the 1992 Act which was given effect by the 2013 Order, and the jurisdiction of the European Court of Justice to make preliminary rulings under what is now article 267 TFEU. It advances the proposition that the 2013 Order is incompatible with the Fixed-term Workers Directive and concludes with a submission on behalf of the appellant that in the event of the court not accepting that the decision of the Appeal Tribunal (and separately the making of the 2013 Order insofar as purporting to endorse or conform the law post- 6 April 2013 to the decision of the Appeal Tribunal) was unlawful as incompatible with the requirements of EU law, the court should make a reference to the Court of Justice of the European Union in terms of article 267 of the Treaty on the Functioning of the European Union of the following question:

"In the light of the general principle of non-regression in social protection in areas in which the EU legislature has acted and separately of the principle of non-discrimination between workers on a fixed term contract and those on open-ended contracts as embodied in the Fixed Term Workers Directive and Agreement 99/70, is it now possible for Member States authorities to exclude (whether by court decision or legislative provision) fixed term workers, or any class thereof, from the consultation protections otherwise afforded under national law for workers facing collective redundancies?"

Respondent - first speech

[27] Mr Napier began by adopting the respondent's written note of argument; the Appeal Tribunal had been correct in reversing the tribunal's construction of the relevant provisions of the 1992 Act. Mr Napier then addressed two matters that required to be dealt with before he developed his argument. The first related to the facts upon which the preliminary issue had to be determined. The second related to the application of the Fixed-term Workers Directive.

[28] Proceedings before the employment tribunal had taken the form of a debate on point of law as Mr O'Neil had said, but there had been evidence led from Professor Simpson and the employment tribunal had made the findings of fact as set out in paragraph 22 of its judgment and in the agreed statement of fact which was attached to the judgment as an annexe. To these findings there fell to be added the fact, recorded at paragraph 10 of the Appeal Tribunal's judgment, that in all four cases, at least one of the reasons for dismissal related to the fact that the employees had agreed to accept that the contract under which they were employed would come to an end at a particular time or on the occurrence of a particular event. What appeared in paragraph 10 of the Appeal Tribunal's judgment reflected the evidence of Professor Simpson as summarised in the written closing submissions of the respondent to the employment tribunal, at paragraph 30 et seq. That the now appellant accepted that what appeared in paragraph 10 of the Appeal Tribunal's judgment was correct had been confirmed by Mr White QC, the leading counsel who had appeared for the now appellant before the Appeal Tribunal. In terms of section 35(1) of the Employment Tribunals Act 1996 and the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the employment tribunal would have had power to amend its original decision to include reference to evidence heard and accepted by it but not recorded. The Appeal Tribunal could have exercised the same power. Paragraph 10 should be read as an exercise by the Appeal Tribunal of that power.

[29] Mr Napier noted that the appellant's supplementary note of argument had not been developed in oral submissions but, in any event, it was an attempt to go off into legal areas which were neither necessary nor appropriate to explore. No reliance should be placed on it. No point on the Fixed-term Workers Directive as transposed into United Kingdom law by the 2002 Regulations, had been raised at the case management discussion where a single issue was identified for determination at the pre-hearing review. Nor was such a point taken in the course of the debate before the employment tribunal at the pre-hearing review. In Mr Napier's submission this court should not now entertain an argument founded on the Fixed-term Workers Directive but, in any event, such an argument was without substance. It had not been triggered; no complaint had been made of rights under the 2002 Regulations having been infringed. It was accepted that the Collective Redundancy Directive had direct effect but it gave rights to workers not to their representatives, such as the appellant. There might be an apparent inconsistency as between article 1(1) of the Collective Redundancy Directive and the general principle of equal treatment enunciated in clause 4(1) of the framework agreement annexed to the Fixed-term Workers Directive, but it was far from clear that that principle of equal treatment there set out had the over-arching effect that Mr O'Neill claimed for it. It had been unfair and inaccurate for Mr O'Neill to characterise the respondent's position as being to argue that all FTCs were excluded from the obligations imposed by chapter II of Part IV of the 1992 Act and it was simply wrong to assert that the mere fact that because EU law touched on FTCs that that should be, as it were, the magic key to open up to discussion all domestic legislation relating to FTCs.

[30] Mr Napier explained that it was his position that, on the facts of this particular case, there was no obligation on the respondent to consult in relation to the category of workers identified in the evidence of Mr Simpson and referred to in the concession on behalf of the appellant which is recorded in paragraph 10 of the Appeal Tribunal's judgment. He adopted what had been said by the Appeal Tribunal at paragraph 72 of its judgment. The import of section 282 of the 1992 Act was that the provisions of section 188 may apply to FTCs which are for more than three months but, equally, they may not. Section 195 provides the answer: one must ask whether, on the facts and circumstances of the individual case, dismissal was for a reason relating to the individual concerned; it is a matter of looking at and assessing the facts against the statutory test.

[31] According to Mr Napier, Mr O'Neill's submissions were far-reaching, going well beyond the situation of researchers on FTCs working in universities. They came to be that any non-renewal of a FTC is to be counted for the purposes of the section 188 obligation to consult representatives, even if the non-renewal related, for example, to someone brought in to cover for sickness or maternity, whose contract terminated when the employee who was being covered for returned to work. This was to go too far. Regard should be had to the purpose of the obligation to consult. There was an unreality in applying the obligation to the situation of FTCs, as had been recognised in Association of University Teachers v University of Newcastle-upon-Tyne [1987] ICR 317 at 327C. The same point emerged from European authority: Case C-383/92 Commission of the European Communities v United Kingdom supra. Mr Napier was happy to adopt Mr O'Neill's characterisation of the relevant dismissals as multiple lay-offs; this brought with it the connotation of industry in crisis. The paradigm case in the mind of the European legislators was the laying off of many employees in a situation close to what would be thought of as redundancy in a purely domestic context.

[32] Mr Napier then turned to the decision of the employment tribunal which he accepted he required to show had been wrong. As appeared from the written closing submissions of the respondent (Appendix item 12), and in particular paragraph 32 of these submissions, before the employment tribunal the respondent had relied on the evidence of Professor Simpson that a consideration in dealing with someone on a FTC would be that service under the FTC was of necessity finite and would finish at a particular time; something quite different from someone employed on a OEC. Mr Napier reiterated that, properly understood, it was not the case that all workers employed under FTCs were either "in or out" when it came to the section 188 obligation. He instanced the case of the seasonal fruit picker. When the fruit-picker was dismissed because there was no more fruit to pick (a reason not related to the individual), he might come within the ambit of section 188. Section 195(2) raised a statutory presumption of redundancy. As the test cases illustrated, the ending and non-renewal of FTCs can arise for various reasons. The employment tribunal had been right to accept that in a particular case none of the reasons for dismissal may relate to the individual concerned (judgment, paragraph 48) but had gone on to confuse reasons for selection for redundancy with redundancy itself when, at paragraph 49, it stated that it was inevitable that dismissal will relate in some way to the individual. It had been in error in then glossing the terms of section 195(1) by construing it to require a close and direct relationship with a reason personal to the individual. The employment tribunal had also erred in holding that NATFHE v Manchester City Council supra established a binding principle that those who were dismissed at the end of their FTCs necessarily fell under the (pre-1993) collective consultation regime. That decision decided no more than that such a dismissal may be by reason of redundancy: Terry v East Sussex County Council [1976] ICR 536, North Yorkshire County Council v Fay [1985] IRLR 247, Association of University Teachers v University of Newcastle-upon-Tyne supra, Pfaffinger v Liverpool Community College [1997] ICR 142. The employment tribunal's analysis had been wrong in two respects: first, the pre-1993 law did not provide that dismissals such as those in the test cases would necessarily trigger the duty to consult, only that they might; and, second, that the effect of the amendment was not (on the respondent's approach) that the obligation to consult would not arise, only that it might not. The respondent was not arguing that there were no circumstances where the non-renewal of a FTC post-1993 would give rise to an obligation to consult. A further error on the part of the employment tribunal was to reason that because section 282 of the 1992 Act (and its statutory predecessor, section 119(7) of the Employment Protection Act 1975) did not apply to FTCs of three months or less, it followed that there was an obligation to consult on the non-renewal of sufficient numbers of FTCs of more than three months' duration (the fallacy of the excluded middle). Because of these fundamental mistakes, the employment tribunal never properly considered, as it should have done, what were the reasons for dismissal in the particular cases and whether the conditions set by section 195(1) of the 1992 Act were met. The definition provided by Cairns LJ in Abernethy v Mott, Hay & Anderson supra at 330B: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee" has been generally adopted. What it means is that when determining a reason for dismissal, one must go to the thought processes of the employer: see also Amicus v Dynamex Friction Ltd [2009] ICR 511 at 535. The employment tribunal failed to grasp this. Again, the employment tribunal's comment at paragraph 59 of its judgment that the employee under a FTC no more consents to his dismissal on a non-renewal than an employee under an OEC, was to miss the point. The point is not whether objectively there was consent on the part of an employee to the termination of his employment but, rather, whether the consent of the employee to the fixed-term nature of the contract was one of the employer's reasons. If an employer can show (the burden of proof being on him) that this was so, then the conditions set by section 195 are not met and no obligation to consent can arise.

[33] As far as the role of European law was concerned, Mr Napier accepted it as axiomatic that there was a duty on the national court to give domestic legislation an interpretation which, whenever possible, brings domestic law into line with what was required by EU law: Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] ICR 1307, [2005] 1 CMLR 44 at paras 112-3; Hough and Ors v Leyland DAF Ltd [1991] IRLR 194 at para 35. However, this may not always be possible: MSF v Refuge Assurance plc [2002] IRLR 324 at para 43. In the present case there was no scope for interpreting section 195 in the light of the Directive as it was clear from the exclusion in article 1(2)(a) that dismissals of workers employed under FTCs fell outwith the scope of the Directive: cf R (Hurst) v London Northern District Coroner [2007] 2 AC 189 at para 52. There could therefore be no basis for maintaining that the position for which the respondent argued was inconsistent with EU law or that the construction suggested by the clear words of the UK legislation should be read differently in order to ensure compliance with EU law as found in the Collective Redundancy Directive.

[34] In the submission of the respondent the Appeal Tribunal had not erred in reversing the employment tribunal. The Appeal Tribunal had accepted that there was scope for the application of the duty to consult in the event of the termination of FTCs by non-renewal. It was not accurate to characterise the respondent's position or the Appeal Tribunal's decision as being that the duty to consult could never arise in the case of workers employed under FTCs. The same error appears in the appellant's grounds of appeal. The Appeal Tribunal had identified that the employment tribunal had failed to ask the question as to whether, on the facts of the cases before them, the dismissals were for reasons not related to the individuals concerned whereas, on the basis of submissions accepted as accurate by the appellant, in all four cases at least one of the reasons for all four dismissals was that the employee in question had agreed to employment under a FTC which would come to an end at a particular date or on the occurrence of a particular event. That was a reason which was related to the individual concerned and, accordingly the dismissals were excluded by section 195(2) from the ambit of section 188.

[35] In the grounds of appeal it was asserted that the reason for dismissal identified in paragraph 10 of the judgment of the Appeal Tribunal related not to the individual concerned but "to the class of FTC employees, as a whole, defined by the type of contract under which they worked". That, Mr Napier submitted, was a misrepresentation. It was simply not correct to say that the decision of the Appeal Tribunal had the effect of excluding workers under FTCs as a class from the protection afforded by the collective redundancy provisions. Contrary to what is put forward in the grounds of appeal, the Appeal Tribunal's distinction between a situation where an employer had decided not to renew a FTC for a business reason and where he had decided not to renew it because the employee had agreed to employment on these terms, made sense. Where an employer chose to engage workers on FTCs in order to avoid the burden of consultation and then did not renew the contracts, that would be a dismissal for a reason not related to the individual and therefore would attract the obligation to consult. That contrasted with the situation where non-renewal is linked with the employer's awareness that the employee has voluntarily accepted that there would be a point in time when his contract would come to an end and that moment had arrived. The appellant's argument did not restrict itself to the circumstances where the FTC is linked to the availability of outside funding; it also applied to the circumstances of the other test cases: the carrying out of particular teaching duties (Dr Doyle), provision of maternity cover (Ms Fife) and provision of sick-leave cover (Dr Kelly).

Appellant - second speech

[36] Mr O'Neill began his second speech by submitting that, quite impermissibly, the Appeal Tribunal had added to the employment tribunal's findings of fact by including what appeared in paragraph 10 of its judgment and proceeding to determine the appeal as if this had been found as fact by the employment tribunal. The employment tribunal was the tribunal of fact and there was no appeal from it on matters of fact; only on point of law. If the employment tribunal makes an error as to fact that can be addressed in an application for review under rule 34 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. No such application had been made in this case. What had been conceded by Mr White to have been "correct" had not been formally agreed by joint minute and was not agreed by Mr O'Neill for the purposes of the present appeal. What was properly before the Appeal Tribunal was what had been expressly found by the employment tribunal. The contents of paragraph 10 should not have been had regard to by the Appeal Tribunal and should be disregarded by this court. What appeared in that paragraph and the way in which it was developed in paragraph 74 of the Appeal Tribunal's judgment was no more than speculation.

[37] Mr O'Neill returned to his line of argument based on clause 4(1) of the framework agreement annexed to the Fixed-term Work Directive. Clause 4(1) articulated a fundamental principle of EU social law, superseding the admittedly only recently consolidated Collective Redundancy Directive (of 20 July 1998): leges posteriores priores contrarias abrogant, cf Promusicae v Telefonica de Espana [2008] 2 CMLR 17 opinion of Advocate General at paras 45-46. The application of that principle meant that neither the court nor the legislature could exclude workers employed on FTCs from the consultation protection otherwise afforded under national law to workers facing collective redundancies. If the court was in any doubt about that it should make a reference to the European Court of Justice. The court should bear in mind that a failure by the state properly to apply EU law gave rise to a claim for Francovich damages: Francovich and Ors v Italy Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357. Up until the present case there had been a practice to include workers employed on FTCs for the purpose of consultation. It was to be noted that the obligation arose irrespective as to whether or not there actually were dismissals. This was consistent with the increasing protection of such workers, as found in the 2002 Regulations.

Respondent - second speech

[38] In a very short second speech, Mr Napier emphasised the points he had made at the beginning of his first speech.

[39] In considering the powers of the Appeal Tribunal and the extent of its jurisdiction Mr Napier submitted that regard should be had to rule 2A of the Employment Appeal Tribunal Rules 1993, as amended and operative at the date of the Appeal Tribunal's judgment in the present case (referred to by Mr Napier as "the 2007 Rules"). That rule stated as the overriding objective of the Rules as being to enable the Appeal Tribunal to deal with cases justly. Where parties had agreed the factual position before the Appeal Tribunal, if power were needed to give that agreement the status of a finding in fact then rule 2A provided that power.

[40] There was no need for a reference to the Court of Justice. The complaint to the employment tribunal had not been made under the Fixed-term Workers Directive. As had been explained by Advocate General Van Gerven at para 10 of his opinion in Case C-383/92 Commission of the European Communities v United Kingdom supra , with his reference to "a crisis situation so far as the workers are concerned", the Collective Redundancies Directive had not been intended to deal with a case such as the present.

Discussion and decision

Introduction and what the appeal is not about

[41] The employment tribunal defined the preliminary issue for determination at the pre-hearing review as being whether, in respect of any of the test case employees, that employee was dismissed as redundant within the meaning of section 195 of the 1992 Act and, if so, which of them. In this appeal, it is the tribunal's determination of that issue which we are asked to review. The 1992 Act has been recently amended by the 2013 Order, with the effect that the provisions of chapter II of Part IV do not apply to employment under a fixed term contract. The amendment is prospective only. The relative commencement date is 6 April 2013.

[42] Mr. O'Neill submitted that the making of the 2013 Order contravened the non-regression principle and was ultra vires of the Secretary of State. In my opinion that is not a matter with which this court need be concerned with. The issue that the employment tribunal set itself to determine fell to be determined by reference to the law as it was at the time of the relevant dismissals. That time was prior to the commencement of the 2013 Order.

[43] I am not persuaded that the 2013 Order has any relevancy whatsoever. Mr O'Neill suggested, as is stated at paragraph 1.6 of the supplementary note of argument, that the fact that the executive has thought it necessary to amend the legislation in order to make it conform to the Appeal Tribunal's interpretation of section 195, pointed to the Appeal Tribunal's interpretation being wrong; there would have been no need to make the 2013 Order and change the primary law were it not that the executive considered the Appeal Tribunal's decision in the present case to have been wrongly decided. I do not see that to be a necessary inference from the making of the order, but supposing that I am wrong about that, I do not consider that the executive's view of what is the effect of a particular statute is of any assistance in interpreting that statute. The executive may be right. It may be wrong. If determination of the meaning of a statute is necessary for a decision by the court, then the court must come to its own view of the matter.

[44] As I shall attempt to explain, neither do I consider that this appeal has anything to do with the Fixed-term Workers Directive.

[45] It follows that I see no need for this court to make a reference to the Court of Justice of the European Union in terms of article 267 of the Treaty on the Functioning of the European Union.

The issue: what the appeal is about

[46] In these proceedings the claimant trade union and now appellant, complains that the respondent employer failed to discharge the duty to consult in respect of collective redundancies. The duty to consult is that imposed by section 188(1) of the 1992 Act, as amended. That subsection provides:

"Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals."

[47] Thus, the duty to consult is only triggered if there is a proposal "to dismiss as redundant" a specified number or more employees in a specified period of days or less. Therefore, in order to ascertain whether the duty has been triggered, one must determine whether a particular dismissal or, strictly, a particular proposal to dismiss, counts towards the threshold figure of 20 in the 90-day period which gives the proposal its collective character. In the present case, at the case management discussion held on 9 June 2010, it was acknowledged that a question arose as to whether the discharge of what the employment tribunal accurately referred to as limited-term contracts (but which are referred to in this opinion as FTCs), by the effluxion of time without the contract being renewed, were to be counted towards the threshold figure. Parties agreed that this question could conveniently be considered at a pre-hearing review. Provision is made for pre-hearing reviews by rule 18 of the Employment Tribunals Rules of Procedure (SI 2004/1861, schedule 1). At a pre-hearing review the employment judge may carry out a preliminary consideration of the case and, among other things, may determine any preliminary matter relating to the proceedings. That is what the employment tribunal, as constituted by the employment judge, set out to do.

[48] The question as to whether discharge of FTCs might count towards the section 188 threshold is stated at paragraph 3 of the employment tribunal's judgment in rather general terms. It is observed that the issue was one that raised a matter of importance to a broad range of employers, employees and trade unions. By the time of the pre-hearing review, the issue had been redefined by parties, with the consent of the employment tribunal, in the more specific terms noted above. Four test case employees had been identified and, in respect of each of them, the issue was whether the employee had been dismissed as redundant within the meaning of section 195. In fact, the contracts of each of the four test case employees had been discharged by the date of the pre-hearing review but nothing turns on that. The employment tribunal was well aware that the section 188 duty arose on the employer formulating a proposal to dismiss the threshold number of employees, rather than on the dismissal of the threshold number (by which time, consultation would obviously be too late). However, it and parties were content that the employment tribunal should determine the preliminary issue by reference to four cases where there had been dismissals, leaving over the question for future consideration as to when it can be said that an employer "is proposing" to dismiss an employee as redundant, to a future hearing.

[49] "Dismiss as redundant" has two components: "dismiss" and "as redundant". As far as the first component is concerned, parties were agreed that it is uncontroversial that the terminations of employment in the four test cases were dismissals. When a FTC is terminated by the effluxion of time or other relevant event and not renewed, that is a dismissal: eg Terry v East Sussex County Council supra, NATFHE v Manchester City Council supra, Association of University Teachers v University of Newcastle-upon-Tyne supra, Pfaffinger v Liverpool Community College supra, and Employment Rights Act 1996 sections 95(1)(b) and 136(1)(b). Thus, that each of the four employees had been dismissed has been conceded in respect of Ms Fife and found by the employment tribunal in respect of the three other cases.

[50] If dealing with the "dismiss" component in relation to the test cases was straightforward, that has not been so with the "as redundant" component. It is at this point that it is convenient to look at section 195 of the 1992 Act (as amended by section 34 (1) and (5) of the Trade Union Reform and Employment Rights Act 1993), that being the provision that provides the definition for redundancy for the purpose of the section 188 duty in relation to collective redundancy. Section 195 is in the following terms:

"195. - Construction of reference to dismissal as redundant etc.

(1)  In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related.

(2)  For the purposes of any proceedings under this Chapter, where an employee is or is proposed to be dismissed it shall be presumed, unless the contrary is proved, that he is or is proposed to be dismissed as redundant."

[51] Thus, if it proposed to dismiss an employee (which includes a proposal not to renew a FTC) and no further information is available about the reason or reasons for that dismissal, then it will be presumed that it is a dismissal as redundant for the purposes of section 195 and therefore the dismissal can count towards the threshold figure for the purposes of the section 188 duty. However, once the employer's reason or reasons are known then, for the dismissal to be a section 195 dismissal the reason must be, or the reasons must include, a reason which is "not related to the individual [employee] concerned". Ascertaining the reason or reasons for a dismissal is a question of fact. Determining whether the ascertained reason or reasons is or are "not related to the individual [employee] concerned", is a question of mixed fact and law. That being so, in relation to each of the test cases, resolution of the preliminary issue defined by the employment tribunal required the employment tribunal to determine, first, a question of pure fact (what was the reason or reasons for the dismissal?) and, second, a question of mixed fact and law ( having regard to the proper construction of section 195 (1) of the 1992 Act, was the reason for the dismissal or, if more than one, a reason for the dismissal, not related to the individual concerned?). Without having first determined the question of fact, the employment tribunal could not determine the question of mixed fact and law.

A reason for the dismissal: what should be taken from the employment tribunal's judgment?

[52] The reasoning of the employment tribunal is to be found in paragraphs 33 to 60 of its judgment in a section headed "Application of the law to the facts". The evidence which been led before it is referred to by the employment tribunal at paragraphs 7 to 10 of the judgment. Paragraph 20 of the judgment contains a summary of the submission made on behalf of the respondent on the evidence led. Paragraph 21 records that the tribunal accepted and adopted the facts agreed by the parties and set out in the annexe to the judgment. Paragraph 22 narrates the tribunal's additional findings in fact. From all of this it might be thought that the employment tribunal accepted that the preliminary issue that it had set out to determine was fact-sensitive (and therefore case-sensitive) and that it was necessary first to ascertain what was or were the reason or reasons for dismissal in the four test cases in order then to determine whether they related to the individual concerned or not. Such an approach is not however apparent when one looks to the tribunal's reasoning. As the Appeal Tribunal correctly observed at paragraph 67 of its judgment, the employment judge does not actually ask the question of whether, on the facts of the cases before him, the dismissals were for reasons not related to the individuals concerned. Perhaps because it did not ask that question, the employment tribunal did not state what it found to have been the reasons in as explicit terms as it might have done. This allowed Mr O'Neill to argue, as he did argue, that the Appeal Tribunal had exceeded what is an appellate jurisdiction solely on questions of law.

[53] Mr O'Neill's criticism was directed at the first sentence of paragraph 10 of the Appeal Tribunal's judgment where the Tribunal sets out what it understood to be agreed as the effect of what had been the evidence before the employment tribunal as to the reasons for dismissal: "[in] all four cases at least one of the reasons for dismissal related to the fact that the employee had agreed to accept that the contract under which they were employed would come to an end at a particular time or on the occurrence of a particular event." The source of that formulation, as appears from paragraph 10, had been the skeleton argument prepared by Mr Napier for the Appeal Tribunal hearing (Mr Napier had appeared in the employment tribunal as he appeared before the Appeal Tribunal and before us). Mr White QC, who had appeared for the appellant before the Appeal Tribunal together with Mr Brown (who had been Mr Napier's opponent before the employment tribunal), had agreed that the statement was correct. Before this court, Mr Napier explained that there had been discussion between parties' representatives in the course of proceedings but the only documentation of the appellant's acceptance that his submission correctly summarised the evidence of Professor Simpson was to be found in paragraph 10 of the Appeal Tribunal's judgment. Without challenging the accuracy of what had been recorded by the Appeal Tribunal or of anything said by Mr Napier, Mr O'Neill objected to this court proceeding upon the basis that one of the reasons for the relevant dismissals had related to the fact that the employee concerned had agreed to accept that the contract under which they were employed would come to an end at a particular time or on the occurrence of a particular event. What had been conceded by Mr White to have been "correct" had not been formally agreed by joint minute and was not agreed by Mr O'Neill for the purposes of the present appeal. What was properly before the Appeal Tribunal, Mr O'Neill submitted, was what had been expressly found by the employment tribunal. Mr O'Neill argued that the contents of paragraph 10 should not have been had regard to by the Appeal Tribunal and should be disregarded by this court.

[54] Mr O'Neill's argument that what appears in the first sentence of paragraph 10 of the Appeal Tribunal's judgment should be disregarded is, at very best, an invitation to give precedence to form over substance. It is not disputed that Professor Simpson's evidence had been accurately summarised in the written closing submissions of the respondent to the employment tribunal (Appendix item 12), and in particular in paragraph 32. It is not disputed that paragraph 10 of the Appeal Tribunals' judgment accurately records a concession made by leading counsel for the appellant. Why the employment tribunal did not make an express finding in fact along the lines of the first sentence in paragraph 10 of the EAT judgment is not clear. It may be because the reasoning adopted by the employment tribunal relates to the generalities of FTCs rather than the specifics of the test cases. However, what can be said with certainty is that following a reference at paragraph 14 to counsel for the respondent's "well-crafted skeleton argument", at paragraph 20 of the employment tribunal judgment, part of Mr Napier's submission is recorded in these terms: "One of the reasons for the non-renewal of the limited-term contract is that the employee has chosen to accept employment on that basis knowing that the contract was for a finite period and probably linked to third party funding." Nowhere in the employment tribunal's judgment is the factual accuracy of that submission questioned.

[55] Mr O'Neill argued that the employment tribunal was the tribunal of fact. The jurisdiction of the Appeal Tribunal is limited to questions of law. If the respondent considered that the employment tribunal had failed to make or record necessary findings of fact, then its remedy was to apply to the employment tribunal for a review, but it was not for the Appeal Tribunal to review the employment tribunal on matters of fact. I take Mr O'Neill (and Mr Napier, who agreed with Mr O'Neill on this point) to be correct in what he said about the power of the employment tribunal to review its findings of fact, having regard to the terms of rules 10, 34 and 37 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. But that being so, as Mr Napier submitted, regard has then to be had to section 35 of the Employment Tribunals Act 1996, which provides that, for the purpose of disposing of an appeal, the Appeal Tribunal may exercise any of the powers of the body from whom the appeal was brought. Thus, if the employment tribunal had power to review its judgment with a view to making clear what it had accepted as fact then so had the Appeal Tribunal. Accordingly, agreeing with Mr Napier, to the extent that it is necessary to do so, I am prepared to construe what the Appeal Tribunal did in its formulation of paragraph 10 of it judgment as an exercise of that power. However, that may be an unnecessarily complicated approach to what, in my opinion, should give rise to no real difficulty whatsoever. The purpose of the pre-hearing review was to determine a preliminary issue as to the application of the relevant statute to the facts of the test cases. It would have been open to the parties to agree all the facts, and that at any time in proceedings. As it was, they agreed some facts and the employment tribunal heard the evidence of one witness. It would have then been open to the parties to agree what that evidence had amounted to and they might well have done so given that Professor Simpson's evidence appears to have been essentially uncontroversial. There was an example of such agreement before the Appeal Tribunal when leading counsel for the appellant conceded the accuracy of the relevant part of the skeleton argument prepared by leading counsel for the respondent, as is recorded at paragraph 10 of the Appeal Tribunal's judgment. As Mr Napier pointed out in his submissions, the concession by Mr White QC is not challenged in the appellant's lengthy grounds of appeal to this court. Mr O'Neill did not explain the basis on which Mr White's concession was being withdrawn. Given the unchallenged evidence led before the employment tribunal, there is a question as to whether Mr White was actually making a concession, as opposed simply to recognising uncontroverted facts. Be that as it may, while there may be cases where an appellate court may properly countenance a party resiling from a considered concession as to material fact made in the tribunal below, this, in my opinion, is not such a case.

[56] I therefore take it as established before the employment tribunal that, in all four cases, at least one of the reasons for dismissal related to the fact that the employee had agreed to accept that the contract under which they were employed would come to an end at a particular time or on the occurrence of a particular event. That being so the question comes to be whether that was a reason "not related to the individual concerned".

The meaning of section 195 in the light of its legislative history

[57] The employment tribunal was of the view that the expression "a reason not related to the individual concerned", as it appears in section 195(1), is not clear and unambiguous (employment tribunal judgment paragraph 49). That view justified the tribunal in re-defining the circumstances in which the duty to consult arose in the formulation set out at paragraph 51: "to be excluded from the duty to consult the required relationship between the individual and the reason for dismissal ...must be a close and direct one with a reason personal to the individual, such as the employee's conduct or capability rather than the employer's need to have work done identified". I take a different view. Agreeing with the Appeal Tribunal (Appeal Tribunal judgment paragraph 73), I see nothing unclear or ambiguous about the statutory wording. That is not to say that the preliminary issue is free from difficulty but, strictly, I do not see the difficulty as one of statutory construction or pure law. The difficult question is the mixed question fact and law: did the reason for dismissal in the test cases "relate" to the individuals concerned or did it not? Contrary to the view of the employment tribunal I do not consider that answering that question involves a redefinition of section 195 although I would accept that it does involve a consideration of the section's legislative history and therefore its purpose.

[58] The immediate textual context of section 195 is chapter II (headed "Procedure for Handling Redundancies") of Part IV (headed "Industrial Relations") of the 1992 Act. Essentially, chapter II is concerned with the imposition of two duties: these being the section 188 duty to consult employees' representative and the section 193 duty to notify the Secretary of State of certain redundancies; and provisions ancillary to these duties. The focus of the present proceedings is the section 188 duty, the alleged failure of the respondent to consult being the basis of the appellant's complaint, as provided for in section 189 (1)(b) of the 1992 Act. As is provided by section 188(2) the relevant consultations shall include consultation about ways of avoiding dismissals, reducing the number of employees to be dismissed and mitigating the consequences of the dismissals. They shall be undertaken by the employer with a view to reaching agreement with the appropriate employees' representatives.

[59] The duty to consult was originally imposed by section 99 of the Employment Protection Act 1975 in order to transpose the provisions of Council Directive 75/129/EEC. The Directive was concerned with collective redundancies, that is situations where the employer is "contemplating" a number of dismissals which is over the threshold figure or proportion of the workforce, and the dismissals are for "one or more reasons not related to the individual workers concerned." Section 99, however, was not limited to collective redundancies, it imposed a duty to consult where an employer was "proposing" to dismiss merely one employee. The terms of section 99(1) were repeated, on consolidation of the legislation, in section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, a repetition that survived the amendment of the 1992 Act effected by the Trade Union Reform and Employment Rights Act 1993. However, the European Commission, not satisfied that the United Kingdom had correctly transposed Council Directive 75/129/EEC, brought the infringement proceedings reported as Case C-383/92 Commission of the European Communities v United Kingdom supra. One of the respects in which the Commission considered that the 1975 Act failed to meet the requirements of the directive (referred to in the Court's judgment as the "second complaint") was that it limited the duty imposed by section 188 (1) to cases of "redundancy", which was defined by the then terms of section 195(1) in a way that was narrower than the Directive's "dismissals effected by an employer for one or more reasons not related to the individual workers concerned." The European Court of Justice upheld the Commission's second complaint. The United Kingdom government responded by an amendment (by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995) which recast section 195 into its present form in a way that was obviously intended to mirror the relevant terms of the directive (Mr O'Neill described this as a "copy out" (cf Bennion On Statutory Interpretation (5^th edit) section 412)) of the Directive's article 1(1)(a) definition of "collective redundancies"). As a result of this very specifically directed amendment, as Mr O'Neill was to emphasise in the course of his submissions, "dismissal as redundant" and therefore "dismissed as redundant" within the meaning of section 195 of the 1992 Act is defined differently from the more generally applicable "dismissed by reason of redundancy", as defined by section 139 of the Employment Rights Act 1996, hence Mr O'Neill's preference for the expression "collective lay-offs" as a way of distinguishing the sorts of collective dismissal to which the consultation provisions apply.

[60] The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 also amended section 188(1) of the 1992 Act with the result that, with effect from 26 October 1995, what had been a duty to consult where an employer was proposing to dismiss as redundant "an employee" became a duty to consult where an employer was proposing to dismiss as redundant "20 or more employees at one establishment within a period of 90 days or less".

[61] Mr O'Neill observed that when it comes to the application of chapter II of Part IV of the 1992 Act, we are in the field of European Union law. He was clearly correct about that. Council Directive 75/129/EEC has been amended by Council Directive 92/56/EEC and subsequently consolidated, repealed and replaced by Council Directive 98/59/EC. It was the consolidated directive that was referred to in argument as the Collective Redundancy Directive and it was the consolidated directive which parties were agreed informed any construction of chapter II of Part IV of the 1992 Act and, in particular, section 195(1). As was said by the Grand Chamber of the European Court of Justice in Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV supra at para 113, reiterating the point made in Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135:

"... when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a Directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the Directive concerned in order to achieve the result sought by the Directive and consequently comply with the third paragraph of article 249 [of the Treaty]."

That may be said to be the minimum required of the national court. In order loyally to discharge its obligation to construe domestic legislation consistently with EU law, a national court may require it to go much further than simply interpreting national law "in the light of" a relevant directive (cf Vodafone 2 v Revenue and Customs Commissioners [2010] Ch 77 referred to by Lord Hodge in Liquidators of Scottish Coal Company Ltd [2013] COSH 124 at para [48]) but what is now trite is that where, as here, the court requires to apply a provision of domestic legislation which was enacted in order to transpose a European directive, it is the purpose of the directive which informs the meaning of the provision and how it is to be applied.

[62] While not quarrelling with the generality of the principle that the purpose of a domestic provision enacted to transpose a directive was to be determined by reference to the purpose of the directive, and the domestic provision construed accordingly, Mr Napier argued that there was no scope for an application of the principle in the present case in that it was clear from the exclusion in article 1(2)(a) that dismissals of workers employed under FTCs fell outwith the scope of the Collective Redundancy Directive. While that is indeed the effect of article 1(2), I disagree with what Mr Napier takes from that. What the employment tribunal had to do in the present case was to decide whether the termination of the contracts of employment in the four test cases were instances of "dismissal as redundant" in terms of section 195 of the 1992 Act. In that section 195 was enacted as part of the provisions of a United Kingdom statute which were enacted in order to transpose the Directive "on the approximation of the laws of the Member States relating to collective redundancies" it is necessary to construe the concept of "dismissal as redundant" in the statute consistently with the concept of "collective redundancies" in the Directive irrespective of the exclusion of certain sorts of contract from the duty to consult. That follows from, for example, Pfeiffer but it was obviously also the intention of Parliament in amending section 195 of the 1992 Act by copying out the definition of "collective redundancies" from the Directive into the statute. It is true, as Mr Napier emphasised, that the Directive does not apply to FTCs, but that does not prevent national law from imposing a consultation obligation in respect of the proposed non-renewal of FTCs. Importantly for present purposes, article 1(2)(a) of the Directive provides, inter alia:

"(2) This Directive shall not apply to:

(a)  collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts"

That rather suggests that there is nothing about the concept of "collective redundancies" which is inconsistent with a collective redundancy being constituted by termination of the relevant number of FTCs.

[63] All that having been said about the need to have regard to the Collective Redundancy Directive when considering the meaning of section 195(1), when one looks at the preambles and other parts of the Directive they do not very obviously reveal a sufficiently specific purpose which illuminates the copied out definition of "dismissals effected by an employer for one or more reasons not related to the individual workers". Similarly, little assistance is available from authority. We were referred to Case C-55/02 Commission v Portugal supra where at paras 49 and 50 the European Court observed:

"49. Accordingly, the concept of 'redundancy', as mentioned in Article 1 (1) (a) of the Directive, may not be defined by any reference to the laws of the Member States, but has instead meaning in Community law.

50. The concept has to be interpreted as including any termination of contract of employment not sought by the worker, and therefore without his consent. It is not necessary that the underlying reasons should reflect the will of the employer."

These observations require to be read in their context. The issue in the case was whether the Portuguese legislation unduly restricted the concept of collective redundancy by excluding (strictly, from the concept of dismissal, as the authors of Harvey on Industrial Relations and Employment Law point out at para [2439]) termination of employment by reason of external circumstances not contingent on the employer's will. We were also referred to Commission of the European Communities v United Kingdom supra where at para 10 of his opinion, Advocate General Van Gerven said:

"The essential objective of the Directive ... is to guarantee to workers within the Community, by way of Community rules establishing ordered procedures for consultation and redundancies...that their representatives should have the right to put their views in a situation, that of collective redundancies which can undoubtedly be regarded as a crisis situation as far as the workers are concerned."

The reference to "crisis" was relied on by Mr Napier in order to contrast what the Advocate General had in mind with the situation where FTCs come to an end at a point where, by their nature, it is entirely predictable that they will come to an end. I am not, however, persuaded that this affords much insight into what is a dismissal for a reason "not related to the individual concerned". Apart from anything else, Advocate General Van Gerven was commenting on a directive which excluded from collective redundancies those which were effected under FTCs.

[64] Accordingly, while the European context is undeniable and while it is essential to bear in mind that what Mr O'Neill referred to as collective lay-offs have a specific definition provided by section 195 of the 1992 Act, consideration of the legislative history leads one back to the mundane but nevertheless sound starting point: section 195(1) must be understood by reference to the ordinary English meaning of the words used in the statute.

Assessment of the employment tribunal's judgment

[65] I turn back to the employment tribunal's judgment. As Mr O'Neill correctly reminded us, the question for this court is whether that judgment can be said to have been wrong. In my opinion it can.

[66] As I have already indicated, resolution of the preliminary issue defined by the employment tribunal required the employment tribunal to determine, first, a question of pure fact (what was the reason or reasons for the dismissal?) and, second, a question of mixed fact and law (having regard to the proper construction of section 195(1) of the 1992 Act, was the reason for the dismissal or, if more than one, a reason for the dismissal, not related to the individual concerned?). That the obligation to consult in respect of the test cases depended on the relevant employees "being dismissed for a reason not related to the individual concerned" appears to be acknowledged by the employment tribunal at paragraph 42 of its judgment. That would clearly be correct but, in my opinion, the employment tribunal thereafter erred in perceiving a difficulty in the construction of "a reason not related to the individual concerned" which simply does not exist. Although it puts it slightly differently, as appears from paragraph 49 of its judgment, the employment tribunal rejected the literal meaning of the relevant words because it considered it inevitable that the reason for a dismissal will relate in some way to the individual concerned. I do not see that as being so, particularly where, as here, the wording has been adopted in the Directive as the test for discriminating between dismissals where there must be consultation and dismissals where there need not be consultation. Agreeing with the Appeal Tribunal (judgment paragraph 64), I regard the employment tribunal as confusing a reason for dismissal with a reason for selection for dismissal. It is because it is of the view that the reason for any dismissal will, in some way, relate to the individual concerned, that the employment tribunal considers it must reject the literal meaning of the words (not give them "too broad a meaning" - paragraph 50) in favour of the reformulation which appears in paragraph 51 of its judgment. This step is both unnecessary and unwarranted but a perhaps more critical error on the part of the employment tribunal appears from the subsequent paragraphs of its judgment. These disclose a misunderstanding as to the effect of authority, a misunderstanding of the respondent's argument and a consequent failure properly to address the mixed question of fact and law which was necessary to a determination of the preliminary issue.

[67] Central to the employment tribunal's reasoning was its understanding of the decision of the Employment Appeal Tribunal, chaired by Phillips J, as he then was, in NATFHE v Manchester City Council supra. That was a complaint of failure to comply with the then requirement under section 99(5) of the Employment Protection Act 1975, by not giving written details of redundancies in respect of the non-renewal of FTCs. Section 99 was the predecessor of section 188 of the 1992 Act. It imposed obligations to consult, including the specific section 99(5) obligation founded upon, in the event of "an employer proposing to dismiss as redundant an employee", "dismiss as redundant" being defined in different terms to what is now section 195(1). Following Dixon v British Broadcasting Corporation, [1978] ICR 357 there was no doubt but that non-renewal of a FTC amounted to dismissal. Insofar as relevant to the present issue, what was decided in NATFHE appears from the following passage, supra at 1195A:

"As we have said, it seems to us that where employees engaged on a fixed term contract, whether part-time or full time, are dismissed because their contracts of employment are not renewed, it may well be the case that they have been dismissed "as redundant" within section 99. Whether it is or not will depend on all the circumstances."

Thus, non-renewal of a FTC may constitute dismissal as redundant. But then again, it may not. It is not clear that that is how the employment tribunal understood the law as stated in NATFHE. At paragraph 54 of its judgment the employment tribunal has this: "NATFHE is clear authority for the proposition that the duty to consult bites upon the dismissal of employees engaged on limited-term contracts". That is so if what the employment tribunal means is that the duty may arise. It is not so if it means that the duty must always arise. At paragraph 56 of its judgment the employment tribunal states that it had been shown no extrinsic material to suggest that Parliament intended to narrow the range of employees who would have the protection afforded by the obligation to consult by excluding employees employed under FTCs. This was to address a contention that had not been advanced by the respondent. Had it been argued by the respondent that the effect of amendment of the 1992 Act by the Trade Union Reform and Employment Rights Act 1993, had been to exclude FTCs, then an answer to that would have been that for that to be the result would have required a clear indication of the Parliament's intention that that was to be so. That had not been argued by the respondent, but that may not have been the understanding of the employment tribunal. At paragraph 55 of its judgment the employment tribunal points to the provisions of section 119(7) of the 1975 Act, the current equivalent of which is section 282(1) of the 1992 Act, which excludes employment for a fixed term of twelve weeks or less from the consultation requirements. On an application of the canon of construction embraced by the maxim expressio unius est exclusio alterius, the employment tribunal concludes that "other employees holding limited-term contracts were intended to be within the scope of the collective consultation provisions". Now, properly, this is not a situation where the maxim has an application; Mr Napier was correct to identify the employment tribunal's reasoning as marred by the fallacy of the excluded middle, but what is more important for present purposes is that at paragraph 55 the employment tribunal is again trying to respond to an argument that Mr Napier emphasised the respondent had not advanced. The employment tribunal was entitled to point to the terms of what is now section 282(1) of the 1992 Act as showing that the non-renewal of FTCs of more than three months duration may trigger the duty to consult provided by section 188 but it was not being contended otherwise. That does not seem to have been understood by the employment tribunal and so focused was it on establishing the (in fact uncontroversial) proposition which appears at paragraph 59, that the effect of the 1975 Act and the 1992 Act was to place the limited-term contract holders who meet the relevant tests on the same footing as those engaged for an indefinite term, that it lost sight of the task that it had set itself which was to determine the reason or reasons for dismissal in the four test cases and then decide whether it or all them were not related to the individuals concerned. I agree with Mr Napier when he said that because of its mistakes, the employment tribunal never properly considered, as it should have done, what were the reasons for dismissal in the particular cases before it and whether the conditions set by section 195(1) of the 1992 Act were met. Rather, having lost sight of its task and therefore the questions it should have determined, it determined a different question, which was whether the whole class of persons employed on FTCs is necessarily excluded from the statutory duty to consult and, having determined (correctly) that it is not, proceeded to conclude that because the test cases fell within that class, dismissal of the individuals concerned (or at least three of them) engaged the statutory duty. That was a non sequitur and I would see the judgment of the employment tribunal as accordingly flawed.

The Fixed-term Workers Directive and the equality of treatment argument

[68] Although Mr O'Neill's approach differed somewhat from that adopted by the employment tribunal, like the tribunal he attributed to the respondent the position of treating the individuals in the test cases as members of a class, the whole of which was outwith the scope of the statutory duty to consult. That being so, the legal issue, as identified by Mr O'Neill, was whether workers on FTCs could be treated differently from workers on OECs. Thus, for Mr O'Neill, what the case was about was the right to and the denial of, equality of treatment in relation to consultation in the event of the dismissal of any individual falling within the class of workers employed on FTCs. On that analysis, Mr O'Neill felt able to introduce into the argument the Fixed-term Workers Directive. That directive has been transposed into United Kingdom law by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, but Mr O'Neill proceeded to ignore the regulations, presumably on the view that they were superfluous given that the Directive had been held by the Court of Justice to have direct effect: Impact v Minister for Agriculture and Food supra.

[69] The purpose of the Fixed-term Workers Directive is to put into effect a framework agreement on fixed-term contracts. It leaves it to member states to legislate with a view to guaranteeing the results which the Directive imposes: see clause 4(3) of the framework agreement and Impact v Minister for Agriculture and Foods supra at para 40. Although it has been held to be sufficiently definite to have direct effect, clause 4(1) of the framework, upon which Mr O'Neill founded, is in very general terms. The Regulations are much more specific. I beg to doubt the legitimacy of simply disregarding national legislation and going straight to the directive which the legislation has been enacted to transpose. As Mr Napier pointed out, no complaint has been made by the appellant by reference to the Regulations. Neither the Regulations nor the Directive played any part in the appellant's arguments before the employment tribunal or the Appeal Tribunal. However, be that as it may, when its terms are considered, I do not consider that the Fixed-term Workers Directive has anything to contribute to determination of the preliminary issue which provides the focus for this appeal.

[70] A puzzle, which Mr O'Neill was content to sweep aside with a Latin maxim relating to the implied repeal of legislation, was how the terms of the Fixed-term Workers Directive, adopted by the Council on 28 June 1999, squared with the terms of the Collective Redundancy Directive adopted by the Council on 20 July 1998. As I understood Mr O'Neill, on his approach it did not, and therefore article 1 (2) of the earlier directive which provides that it does not apply to the generality of collective redundancies under contracts of employment concluded for limited periods of time or for specific tasks was, without anything more, to be taken to be abrogated. I found that submission to be as surprising as it was bold. I also consider it to have been wrong. Clause 4(1) of the framework agreement is in these terms:

"In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds."

What clause 4 (1) is concerned with is "employment conditions" and a prohibition of less favourable treatment of workers on FTCs by reason of "employment conditions" in the sense, I would suggest, of implied or express terms of the contract of employment or, to the extent that this is different, benefits conferred on employees by employers by virtue of the contract of employment. That is how the clause would appear to have been understood by the United Kingdom when transposing the Directive: see regulation 3 of the 2002 Regulations. It is also consistent with the way in which the European Court answered the relevant referred question in Impact v Minister for Agriculture and Food. Ruling 5 in the Court's judgment in that case is in these terms:

"Clause 4 of the framework agreement on fixed-term work must be interpreted as meaning that employment conditions within the meaning of that clause encompass conditions relating to pay and to pensions which depend on the employment relationship, to the exclusion of conditions relating to pensions arising under a statutory social-security scheme."

The right to consultation with which the Collective Redundancy Directive is concerned does not have to do with "employment conditions" in the sense of being dependent upon an implied or express term in the employment contract. Rather it is an obligation, with a correlative right, which is imposed by statute. The analogy is with an entitlement under a statutory social security scheme as referred to in Impact but, moreover, as was submitted by Mr Napier, the right to consultation is further divorced from "employment conditions" in that it is not a right given to the individual employee, whether by virtue of his contract of employment or otherwise. Rather, it is a right conferred on employee representatives. I do not see clause 4 of the framework agreement to be to the point.

[71] A perhaps more fundamental answer to Mr O'Neill's equality of treatment line of argument, whether derived from the Fixed-term Workers Directive or elsewhere, is that it depends on there having been inequality of treatment. In the present case it is not conceded nor has it been established by the evidence led before the employment tribunal that there has been inequality of treatment. It is no part of the respondent's argument that dismissal of workers employed on FTCs are to be treated differently than dismissals of those employed on OECs and it is not conceded that they have been. Irrespective of the nature of the contract, what is to be considered is whether, in the words of section 195, the dismissal was for a reason not related to the individual concerned.

Decision

[72] I took both parties to accept, following what had been said by Cairns LJ in Abernethy v Mott, Hay & Anderson supra at 330B, that a reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee and that accordingly that when determining a reason for dismissal, one must go to the thought processes of the employer: Amicus v Dynamex Friction Ltd supra. For the reasons given above, I take it as established that in all four test cases at least one of the reasons for dismissal related to the fact that the employee had agreed to accept that the contract under which they were employed would come to an end at a particular time or on the occurrence of a particular event. That being so, after what has been a very long perambulation, for a resolution of the preliminary issue one comes back to the mixed question of fact and law - was the reason for dismissal in the test cases a reason "not related to the individual concerned". Agreeing with the Appeal Tribunal, I would answer that question in the negative. In other words, in my opinion, the employer's reason for dismissal in each of the test cases (that the employee had agreed that the contract would come to an end) did relate to the individuals. It was specific to each of them. It had to do with their particular circumstances and their particular decisions, for example to undertaken certain limited teaching duties or to provide cover during the maternity or sick leave of another employee. It had to do, as the Appeal Tribunal put it, with the individual employee's own approach to their employment with the respondent. In Mr O'Neill's submission, properly analysed the "reason for dismissal" was the fact that the employee had entered into a FTC. That, he said, had nothing to do with the individual employee. I disagree.

[73] I would accordingly move your Lordships to refuse the appeal. For the avoidance of doubt I see no need to make a reference of the question specified by Mr O'Neill or any other question to the Court of Justice.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 5
Lord Brodie Lord Bracadale Lord Drummond Young	XA90/12 OPINION OF LORD BRACADALE in an appeal to the Court of Session under section 37(1) of the Employment Tribunals Act 1996 against a decision of the Employment Appeal Tribunal by UNIVERSITY COLLEGE UNION Applicant and Appellant; against THE UNIVERSITY OF STIRLING Respondents: _______________

Act: O'Neill, QC; Maclay Murray & Spens LLP

Alt: Napier, QC; Anderson Strathern LLP

14 January 2014

[74] For the reasons set out in the opinions of your Lordships I agree that the appeal should be refused and that it is not necessary to make a reference to the European Court of Justice.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 5
Lord Brodie Lord Bracadale Lord Drummond Young	XA90/12 OPINION OF LORD DRUMMOND YOUNG in an appeal to the Court of Session under section 37(1) of the Employment Tribunals Act 1996 against a decision of the Employment Appeal Tribunal by UNIVERSITY COLLEGE UNION Applicant and Appellant; against THE UNIVERSITY OF STIRLING Respondents: _______________

Act: O'Neill, QC; Maclay Murray & Spens LLP

Alt: Napier, QC; Anderson Strathern LLP

14 January 2014

[75] I agree with the opinion of your Lordship in the chair that the judgment of the Employment Tribunal was erroneous and that the present appeal should accordingly be refused. I further agree that it is not necessary to make a reference to the European Court of Justice.

[76] As your Lordship indicates, the central question in the case is the application of section 195(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 to the facts of the four test cases. Section 195(1) provides that references to dismissal "as redundant" are references to dismissal "for a reason not related to the individual concerned". In each of the four test cases the employee's fixed-term contract had come to an end. The employees under consideration were engaged on contracts designed to achieve specific, limited purposes (Employment Tribunal, paragraph 22). The first of them was employed as a post-doctoral research assistant on a contract that, following renewal, lasted for two years. The evidence disclosed that such contracts are dependent on the availability of funds, and if employment is to be continued renewed funding must be obtained for either a continuation of the existing project or for a new project for which the research assistant has suitable skills and knowledge. In such a case, therefore, it is apparent that the question of continuing or terminating the contract is dependent on the existence of funding for a project within the individual's particular area of expertise. The second of the employees was engaged on a fixed term contract to co-ordinate and deliver three undergraduate modules in English Studies in a particular semester. That contract was not renewed. In this case it is apparent that the continuation or termination of the contract was dependent on the existence of teaching requirements that the particular employee could fulfil. The third employee was engaged to provide maternity leave cover us for six months, although her employment was in practice continued for a further 11 months. The nature of the work undertaken is not apparent from the Employment Tribunal's decision. The fourth employee was initially engaged for one month, and thereafter in two stages for a further two years. The final extension arose out of the fact that the employee was a named researcher on a number of projects and because a colleague was working reduced hours on return from maternity leave. In this case, therefore, the contract appears to have been related to the continuation of certain research projects on which the employee was engaged.

[77] Each of those contracts had been entered into voluntarily by the employee concerned, and the terms of the contract were specific to that employee. Thus each of the employees concerned agreed to a term to the effect that employment would cease on a particular date or on the happening of a particular event. The dismissal of the employee resulted from the operation of those terms relating to termination. It was agreed between the parties that in every case at least one of the reasons for dismissal related to the fact that the employee had agreed to accept that the contract under which he or she was employed would come to an end at a particular time or on the occurrence of a particular event: Employment Appeal Tribunal at paragraph 10. The critical issue is whether dismissal in the foregoing circumstances is or is not "a reason not related to the individual concerned".

[78] For the appellant it was submitted that the termination of a fixed term contract in accordance with its terms must invariably be for a reason that is not related to the individual concerned. For that reason in every case where a sufficient number of such contracts come to an end the employer would be under a duty to consult with union representatives to consider the interests of the fixed term contract workers as a class. That applied even if, for example, the money for the particular project had run out. By contrast, counsel for the respondents submitted that no general rule could be laid down as to whether the termination of a fixed term contract was for a reason not related to the individual concerned. In some cases it might not be; for example, an employer might engage a large number of workers on fixed term contracts, and then dismiss them according to the demands of its business. That clearly would not relate to the individual concerned. On the other hand, where the fixed term contract was entered into on a voluntary basis for specific reasons, such as a particular research project or a particular period of maternity leave, the fact that the employee had entered into such a contract was a matter that was related to the individual. The result depended upon the facts of the particular case.

[79] In my opinion the respondents are correct in submitting that the termination of a fixed term contract cannot inevitably be said to be for a reason not related to the individual concerned. Such a contract is entered into voluntarily by the employee. The reasons for permitting termination to take place in accordance with the contract may vary considerably. In some cases there may be a substantial number of fixed term employees and a practice of renewal which is departed from when the employer's work diminishes. In such a case it might reasonably be inferred that the reason for dismissal had nothing to do with the individual employees but was entirely a matter of the employer's need for their services. In other cases, however, it might be established as a matter of fact that the fixed term contract was not renewed for reasons that were personal to the individual concerned, including the fact that he or she was employed under a contract that was due to terminate at a particular time. That is particularly so when the reasons for concluding such a contract were individual to that contract, and did not extend across a range of employees. That is the case here. It was a matter of agreement that in each of the four test cases at least one of the reasons for the respondents' dismissing the employee was the fact that the employee had agreed to accept that the contract would come to an end after a particular time or when a particular event occurred. In each case it is clear that the duration of the contract related to a specific matter: a particular research project, or the delivery of specified undergraduate modules, or the provision of cover for maternity leave, or a combination of these factors. Each of these was specific to the particular contract and the particular employee, who agreed to the limited duration of his or her contract. In these circumstances, terminating the employment when the contract expired was in my opinion a matter that was clearly related to the individual concerned.

[80] The employment tribunal expressed the view that the expression "a reason not related to the individual concerned" is not clear and unambiguous (paragraph 49). On that basis they expressed the view that, for a dismissal to be excluded from the duty to consult, the relationship between the individual and the reason for dismissal must be "a close and direct one with a reason personal to the individual, such as the employee's conduct or capability, rather than the employee's job or the employer's need to have work done being identified" (paragraph 51). I agree entirely with your Lordship in the chair that this reinterpretation of the statutory requirement is an error. No doubt the application of the wording used in section 195(1) may give rise to difficulties in particular cases; few if any expressions have a meaning whose application is wholly clear in every case. The existence of marginal cases, however, does not mean that the fundamental meaning is unclear or ambiguous; it is merely a reflection of the difficulty of applying language to the real world. In the present case I consider that the application of the statutory wording to the particular facts is perfectly clear.

[81] Statutory provisions must always be construed in context, and as your Lordship has indicated the immediate context of section 195 is found in chapter II of Part IV of the 1992 Act, the part of the Act to which the definition relates. The primary duty under chapter II is stated in section 188: an employer proposing to dismiss an employee as redundant must consult representatives of the relevant trade union about the dismissal in accordance with that section. The foregoing provisions have an elaborate legislative history, including infringement proceedings before the European Court of Justice. The present form of the legislation is clearly shaped to a substantial degree by the consolidated Collective Redundancy Directive, Council Directive 98/59/EC. Article 1(2) of that Directive excludes dismissals of workers employed under fixed term contracts. Section 195 was part of a statute intended to enact the requirements of the Directive in the United Kingdom. While the point is not decisive, it appears to me that the exclusion of fixed term contracts from the European legislation indicates that cases where a fixed term contract terminates on its expiry do not require any form of strained statutory construction to ensure that the United Kingdom statute is in accordance with the law of the European Union. Clearly Parliament can choose to go beyond the requirements of the European legislation, and in the case of fixed term contracts appears to have done so, but in such a case the requirements of the European directives do not have any decisive bearing on the interpretation of domestic law.

[82] I am accordingly in entire agreement with your Lordship in the chair that the employment tribunal's judgment was wrong. I do not doubt that the expression "a reason not related to the individual concerned" may give rise to difficulties of interpretation in some cases, but in the circumstances of the present case I consider that there is no difficulty in applying it to the facts. The employment tribunal considered that there were problems in interpreting the expression. They thought it inevitable that the reason for dismissal will relate in some way to the individual concerned (paragraph 49). While that might be so in a very tenuous sense, in the typical case where a number of employees are laid off because the employer does not have work for them it is of minimal importance; the only significant reason for the dismissal is the employer's lack of work. The tribunal suggested that the selection criteria for redundancy might include matters related to the individual employees, such as length of service or disciplinary or sickness records. That, however, confuses the reasons for dismissal of a number of employees with the criteria for selecting the individual employees.

[83] The Tribunal further indicated that, if the test in section 195(1) were to be met, the relationship between the individual and the reason for dismissal must be "a close and direct one", with a reason personal to the individual, such as conduct or capability, rather than the employee's job or the employer's need to have work done (paragraph 51). In my opinion that involves too strict a requirement for the application of the section. No doubt in many cases where the reason for dismissal relates to the employee's job that reason will not be personal to the individual; where, for example, new technology replaces the jobs of a whole category of employees, or enables the employer to reduce substantially the number employed in that line of work, the reason cannot be described as related to the individuals concerned. That is not the present case, however. Here the reason for dismissal is not merely that a particular line of work has come to an end but that the individual employee concerned has agreed to a fixed term contract on the basis that his or her services are required for a particular project or to provide cover for a particular period. Moreover, it is agreed that the acceptance of a fixed term contract was one of the reasons for dismissal. In cases of this sort, I am of opinion that the reasons for dismissal are plainly related to the individual concerned.

[84] For the foregoing reasons, and those set out more fully by your Lordship in the chair, I am of opinion that this appeal must be refused.