SUMMARY
FIXED TERM REGULATIONS
Fixed term contracts
An employee on a
fixed term contract applied to the Employment Tribunal for a declaration that she
was permanently employed.
She relied on
previous periods of service under earlier fixed term contracts as meeting the
qualifying period under Regulation 8 of the Fixed Term Employees (Prevention
of Less Favourable Treatment) Regulations 2002.
The employer
responded that the previous periods could not count as they fell within the
exclusion from the regulations of certain types of employment under Government
schemes as contained in Regulation 18.
The Employment
Tribunal Judge held that as Regulation 18 provided that the Regulations did not
apply to employments of the type described in Regulation 18, such periods of
employment could not be used to accumulate the qualifying period.
Appeal
allowed.
On a true
construction, Regulation 18 was concerned only to exclude the application of
the regulations to employees presently employed under a contract to which that
regulation applied.
The employee’s
current contract was not caught by Regulation 18 and nothing in Regulation 8
disqualified the employee from relying on past employment which would have been
within Regulation 18.
MR RECORDER LUBA QC
Introduction
1.
This case is about the proper application of the Fixed-Term Employees
(Prevention of Less Favourable
Treatment) Regulations 2002. Part 2 of those Regulations,
headed “Rights and Remedies”, confers statutory rights and access to legal
remedies on certain fixed-term employees. Among those rights is that contained
in Regulation 8(1), enabling an employee employed under a fixed-term
contract to be treated as though they were permanently employed. The
corresponding remedy, contained in Regulation 9(5), is a declaration
available from an Employment Tribunal where an employee can show that the
conditions of Regulation 8 are satisfied.
2.
In this case, the Appellant is an employee of the Respondent - the Department
for Work and Pensions - under a fixed-term contract of employment. She
believed that she fulfilled the conditions of Regulation 8 of the
Regulations and, accordingly, applied for a declaration from the Employment
Tribunal pursuant to Regulation 9(5).
3.
Following a hearing in Birmingham on 22 February 2011, Employment
Judge Gaskell, sitting alone, determined that the conditions contained in
Regulation 8 of the Regulations were not in fact satisfied, and he refused
a declaration. That decision was sent to the parties on
7 April 2011. From that Judgment the Appellant appeals to this Appeal
Tribunal, contending that the Employment Judge erred in law.
The Regulations
4.
The Regulations were made on 30 July 2002 by the Secretary of
State in what was then the Department of Trade and Industry. Part of their
intended effect was to implement EU Council Directive 1999/70/EC in Great Britain. The Directive is usually referred to as the ‘Fixed-term Work Directive’.
The Regulations were made in exercise of the statutory powers conferred on the
Secretary of State by sections 45 and 51(1) of the Employment Act 2002.
5.
Before coming to the terms of the Regulations it is apt to note the
extent of the Secretary of State’s regulation‑making powers as described
in sections 45(1)‑45(2). They provide:
“45(1) The Secretary of State shall make Regulations—
(a) for the purpose of securing that
employees in fixed-term employment are treated, for such purposes and to such
extent as the regulations may specify, no less favourably than employees in
permanent employment, and
(b) for the purpose of preventing
abuse arising from the use of successive periods of fixed-term employment.
(2) The Regulations may—
(a) specify classes of employee who
are to be taken to be, or not to be, in fixed-term employment; […]
(f) make provision which has effect in
relation to employees in fixed-term employment generally or provision which has
effect only in relation to specified classes of employee in fixed-term
employment.”
6.
Section 51 of the 2002 Act requires that the Secretary of State lay
a draft of the Regulations to be made under section 45 before Parliament,
and that the Regulations must be approved by resolution of each House of
Parliament.
7.
The Regulations as made are divided into five Parts. It is only
necessary for the purposes of this Judgment to extract Regulation 8 from
Part 2 (‘Rights and Remedies’) and Regulation 18 from Part 5
(‘Exclusions’). Regulation 8 provides:
“8. Successive fixed-term contracts
(1) This regulation applies where -
(a) an employee is employed under a
contract purporting to be a fixed-term contract, and
(b) the contract mentioned in
sub-paragraph (a) has previously been renewed, or the employee has previously
been employed on a fixed-term contract before the start of the contract
mentioned in sub-paragraph (a).
(2) Where this regulation applies then, with effect from the
date specified in paragraph (3), the provision of the contract mentioned in
paragraph (1)(a) that restricts the duration of the contract shall be of no
effect, and the employee shall be a permanent employee, if –
(a) the employee has been
continuously employed under the contract mentioned in paragraph 1(a), or under
that contract taken with a previous fixed-term contract, for a period of four
years or more, and
(b) the employment of the employee
under a fixed-term contract was not justified on objective grounds –
(i) where the contract mentioned in
paragraph (1)(a) has been renewed, at the time when it was last renewed;
(ii) where that
contract has not been renewed, at the time when it was entered into.
(3) The date referred to in paragraph (2) is whichever is the
later of –
(a) the date on which the contract
mentioned in paragraph (1)(a) was entered into or last renewed, and
(b) the date on which the employee
acquired four years’ continuous employment.
(4) ….”
8.
Regulation 18 provides:
“18. Government training schemes etc
(1) These Regulations shall not have effect in relation to a
fixed-term employee who is employed on a scheme, designed to provide him with
training or work experience for the purpose of assisting him to seek or obtain
work, which is either -
(a) provided to him under
arrangements made by the Government, or
(b) funded in whole or part by an
Institution of the European Community.
(2) These Regulations shall not have effect in relation to a
fixed-term employee whose employment consists in attending a period of work
experience not exceeding one year that he is required to attend as part of a
higher education course.
(3) …”
9.
Between the date of hearing in this case before the Employment Judge and
the date of delivery of his Judgment, the Supreme Court decided the case of Secretary
of State for Children, Schools and Families v Fletcher [2011] UKSC 14,
[2011] ICR 495. That decision deals with the extent to which an employer might
be able to objectively justify the use of a fixed-term contract of employment
for the purposes of Regulation 8(2)(b). However, in the course of her judgment,
Baroness Hale of Richmond describes the purpose and function of
the 2002 Regulations and of the Fixed-term Work Directive from which they
spring. She says at paragraph [9]:
“It is important to understand that the fixed-term Directive is
not directed against fixed-term contracts as such. It has two more specific
aims, set out in recital (14):
‘The signatory parties have demonstrated their desire to
improve the quality of fixed-term work by ensuring the application of the
principle of non‑discrimination and to establish a framework to prevent
abuse arising from the use of successive fixed-term employment contracts or
relationships.”
10.
As Baroness Hale points out at paragraph [10], the terms of
the Fixed-term Work Directive do not:
“[…] attempt to define the circumstances in which fixed-term
employment is acceptable. Instead they concentrate on preventing or limiting
the abuse of successive fixed-term contracts, the abuse being to disguise what
is effectively an indefinite employment as a series of fixed-term contracts,
thus potentially avoiding the benefits and protections available in indefinite
employment.”
11.
In paragraph [23 she says:
“Employing people on single fixed-term contracts does not offend
against either the Directive or the Regulations.”
This case
12.
Against the background of that brief introduction and reference to the
relevant provisions of the Regulations I come to the circumstances of the
instant case. The Appellant first began to work for the Department for Work
and Pensions in April 2006. Her employment was under a fixed-term
contract. There were subsequent fixed-term contracts or extensions to that
initial contract. Her latest fixed-term contract commenced on
19 October 2009.
13.
In 2010 she applied to the Employment Tribunals Service for a
declaration under Regulation 9(5) that pursuant to Regulation 8 she
was now a permanent employee of the Respondent, having completed the four‑year
period of service referred to in Regulation 8(2)(a). The Respondent
resisted the claim for a declaration on the basis that the fixed-term
employment(s) between April 2006 and the commencement of the present
fixed-term contract of employment fell to be excluded when calculating the
relevant four‑year period. The Respondent’s case was that the employment
during that period fell within the exclusion contained in Regulation 18.
More particularly, the Respondent’s case was that the earlier periods of fixed-term
employment had been designed to provide the Appellant with training or work
experience for the purpose of assisting her to obtain or seek work under
arrangements made by the Government: regulation 18(1)(a).
14.
The Employment Tribunal Judge conducted a Pre‑Hearing Review. He
put to one side the question of whether there might be an objective
justification for the current use of a fixed-term contract for the purposes of
Regulation 8(2)(b). Instead, he determined, as preliminary issues, three
matters.
(1) whether the Appellant could rely on Regulation 8 even if the
previous periods for which she had been a fixed-term employee were within
Regulation 18;
(2) whether the previous periods of employment had in fact been
covered by the exception in Regulation 18 because that had been employment
under ‘a Government scheme’.
(3) whether, even if the context was one of a Government scheme,
the Appellant had as a matter of fact been ‘employed’ under such a scheme of
the relevant description in the years prior to her current fixed-term
employment.
He decided them all adversely to the Appellant and this appeal is
pursued in respect of each of his conclusions. I shall seek to deal with those same
three issues in turn by describing the contentions of the parties, the decision
of the Judge and the reasons that have lead me to my own conclusions.
The first issue
15.
The Appellant’s case is, and has throughout been, that as a matter of
simple construction of the relevant Regulations she satisfies the conditions of
Regulation 8 and is therefore (subject to any determination of objective
justification) entitled to the declaration sought. Thus her case, as advanced
by Ms Andrews on her behalf, was that she met the conditions specified in
Regulation 8(1) in that she was (i) an employee, (ii) employed under a
contract purporting to be a fixed-term contract, and (iii) she had been
previously employed on a fixed-term contract before the start of the current
contract.
16.
The Respondent, represented before me by Mr Adam Farrer of counsel,
contended that the effect of Regulation 18 of the Regulations was that an
employee could not rely on previous periods of employment under fixed-term
contracts if those contracts could themselves, or did themselves, fall within
the terms of Regulation 18.
17.
The same arguments had been advanced to the Employment Tribunal Judge.
In relation to them he said this:
“9.1 Regulation 18 states that the Regulations shall not
have effect in relation to a fixed term employees [sic] employed on an excluded
scheme. There is, in my judgement, no basis to conclude that this amounts to
anything other than a wholesale exclusion of such employees including the
exclusion of rights which might otherwise be accruing during the first four years
of employment. […] I therefore conclude that if the Appellant’s employment
between April 2006 and October 2009 was subject to the
Regulation 18 exclusion then her time service for the purposes of
Regulation 8 would not commence until 19 October 2009”
18.
In her appeal to this Appeal Tribunal, the Appellant contends that the
Employment Tribunal Judge has there misconstrued the Regulations. Her case is
that the ‘ouster’ provision in Regulation 18 is not addressed to whether
or not an employee can rely on particular types of previous fixed-term
employment contract but as to the circumstances of the applicant employee in
relation to their current contract of employment. In summary, the
argument advanced by Ms Andrews is to the following effect:
(1) Regulation 18 is the first
of three regulations in Part 5, which is headed “Exclusions”. In any
statutory provision expressly conferring rights and remedies, the scope of any
regulations containing exclusions ought to be narrowly defined.
(2) Regulation 18(1) stipulates
that “the Regulation shall not have effect” in relation to, “a fixed-term
employee who is employed on a scheme […] which is either...” On
a natural construction of the language, the use of present tense by the emphasised
words shows that the terms of Regulation 18 are concerned with, and only
addressed to the applicability of the Regulations in relation to, a current
fixed-term employee.
(3) The exclusion in
Regulation 18 does therefore not apply to the exercise of satisfying the
conditions in Regulation 8(1)(b), which is concerned with previous
employment that the employee has had on past fixed-term contracts.
(4) Had the contrary been the
intention of the Regulations, one would have expected to see inserted into
Regulation 8(1)(b) after the words “…fixed-term contract…” the additional
words, “(save a contract to which Regulation 18 applies)” or similar words.
19.
In answer to that submission Mr Farrer relied on the generality of
the opening words of Regulation 18, namely, “These Regulations shall not
have effect […]”. He argued that those words were apt to disqualify reliance
on a contract of the type described in Regulation 18 for all purposes
connected with the Regulations and thus it applied whether one was addressing
the current fixed-term contract of employment or any previous such fixed-term
contract(s) of employment. Further, adopting the argument that had been
advanced before the Employment Judge, he suggested that any other construction
of Regulation 18 would lead to absurdity, i.e. that an employer who had
provided to an employee a succession of fixed-term contracts covered by
Regulation 18 could find themselves trapped by the impact of
Regulation 8 on the very first day of a further fixed-term contract of
employment itself not covered by Regulation 18, if the qualifying period
had by then been satisfied.
20.
It is this latter argument - based on anomaly - that persuaded the
Employment Tribunal Judge to uphold the Respondent’s contentions on this first
issue. There was advanced before the Employment Judge (see his judgment at 8.2)
the hypothetical case of “an employee working on a government scheme falling
within Regulation 18 where the employee is employed for five whole years
under fixed-term contracts but is excluded from the benefit of the Regulations
but, if with the same employer, would on the first day of the sixth year
employed on a fixed-term contract which was not excluded by Regulation 18
immediately become a permanent employee”. At paragraph 9(1) of his
Judgment the Tribunal Judge says of the submission based on that illustration:
“I accept the respondent’s submission that to find otherwise
produces an absurd result and one which would be a positive disincentive to
employers to offer ongoing employment to employees whose initial employment was
under the terms of an excluded fixed term contract.”
21.
For my part I was not persuaded that the proper construction of the
statutory instrument should turn on the question of whether or not the
Regulation might produce unusual or what some might describe as “absurd”
results. The proper approach, in my judgment, is to look at the words that
have been used by the Secretary of State in the particular Regulations in the
context of the Regulations as a whole and in the context of the Directive that
they were intended to give effect to. If on the application of well‑established
principles of construction they produce a result which in some circumstances
might be described as unusual or anomalous that result can, if considered
appropriate, be dealt with by amending the regulations.
22.
At the hearing before me on 10 February 2012 there was
conspicuously little material that could provide an aid to the proper
construction of the statutory instrument. That was notwithstanding the fact
that the Respondent was itself a Government Department, which one might assume
would be well placed to put before an Appeal Tribunal the relevant background
materials that might assist on issues of construction. I was provided with a
copy of the relevant Council Directive, but not with any authorities touching
on the proper construction of Regulation 8 or Regulation 18 beyond
the Supreme Court decision that I have mentioned at the outset of this
Judgment. That was particularly surprising because, as the Explanatory Notes
to the Regulations indicated, a Transposition Note explaining how the
Regulations give effect to the Directive had been placed in the libraries of
both Houses of Parliament - presumably at the same time that the Regulations
were laid. Further, there appeared to have been resolutions of each House
approving the Regulations in respect of which there may have been relevant
debates. Yet further, the Department promoting the Regulations had published a
Regulatory Impact Assessment of the costs and benefits that would result from
the Regulations, which again had been placed in the libraries of both Houses of
Parliament. Unable to assist me in respect of any of those matters, Mr Farrer
made an application at the hearing for permission to introduce those materials on
the appeal once they had been traced. I gave permission for such material to
be adduced after the hearing and for each party to make written submissions
upon that material. I received those written submissions and a significant
quantity of additional material from the parties in early March 2012.
23.
The new materials did not contain any ministerial statement or the terms
of any parliamentary debate in relation to the resolutions approving the
Regulations in 2002. They did include the Transposition Note and the Regulatory
Impact Assessment as well as the various documents relating to the consultation
exercise undertaken on the content of the regulations. Ms Andrews’ written
submissions suggested that this was a partial or selective disclosure of material
by the Respondent. I see nothing to support that suggestion and I reject it.
24.
In the event, the material that was produced did not provide a positive or
conclusive indicator one way or the other as to the true construction of the
Regulations. I accept Ms Andrews’ submission that if they help the arguments
of either party they are more supportive of the case for the Appellant. For
example, the second page of the Transposition Note explains that one ‘purpose’
was “…to exclude …those employed on initial vocational training
schemes…” etc. and that ‘implementation’ of that purpose is achieved by
excluding “…a fixed-term employee who is participating in a scheme”. The
emphasis is my own.
25.
With very limited help from the additional materials, I am therefore driven
back to the words used in the Regulations themselves.
26.
In my judgment, the contentions made by the Appellant are compelling as
to the proper construction of the Regulations. It seems to me that it is the
right approach that exclusions should be construed narrowly. I am satisfied
that the wording of Regulation 18(1) is concerned with the present circumstances
of the employee. That is to say, their circumstances in relation to the fixed-term
contract under which they are presently employed. The wording of the
exclusion in Regulation 18, which bears reference to a fixed-term employee
who is employed under a scheme, may be contrasted with the wording of the other
two exclusions in Regulations 19 and 20, which provide that
those two exclusions shall not have effect “…in relation to employment under a
fixed-term contract where the employee is…”. Despite the used of the present‑tense
word “is” in both Regulations 19 and 20, the reference in the
terminology to “employment” seems to me more general than the specific
reference in the words of Regulation 18(1). Further, had it been the
intention of the draughtsman that the exclusion in Regulation 18 should
apply not only to the current fixed-term contract of employment but also to
earlier fixed-term contracts of employment, it would have been quite
straightforward for Regulation 8 to have specifically provided that the
previous fixed-term contracts referred to in that sub‑Regulation did not
include fixed-term contracts such as those covered by Regulation 18.
27.
For all those reasons, I must respectfully disagree with the
construction adopted by the learned Employment Judge. The correct answer to
the first of the issues in this case is in my judgment that the employee did
not presently hold a contract of employment captured by Regulation 18 and that
nothing in Regulation 8 prevented her from relying on previous periods of
employment - that would have been captured by Regulation 18 - for the
purposes of obtaining the right contained in Regulation 8.
28.
That finding is determinative of the present appeal. The result is that
the appeal will be allowed and the matter remitted to the Employment Tribunal
to determine whether the employer in this case can rely on the objective
justification referred to in Regulation 8 to defeat the claim for a
Regulation 9(5) declaration.
29.
It is strictly not necessary therefore for me to adjudicate upon the
other two issues that were determined by the Employment Judge and in respect of
which his conclusions were again challenged by the Appellant. Having heard
full argument on the points, however, and conscious of the fact that the issue
that I have already addressed has involved a departure from the conclusion of
the original Tribunal Judge, I believe it is right that I should address them.
The second issue
30.
On the assumption that Regulation 18 might apply to previous fixed-term
contracts of employment held by the Appellant, the Tribunal Judge had to decide
whether that employment had been:
“…on a scheme, designed to provide [her] with training or work
experience for the purpose of assisting [her] to seek or obtain work, which is
[…] provided to [her] under arrangements made by the Government…”
31.
The short point made by the Appellant before the Judge was that there
was in the present case no relevant Government “scheme” that she was employed
“on”. The case for the Respondent was that there had indeed been a relevant scheme,
and the Appellant had been employed “on” that scheme. The scheme in question was
said to be the Government’s ‘New Deal’ scheme.
32.
As the Employment Tribunal Judge records, at paragraph 5.6.1 of his
Judgment, there were six variants of the New Deal scheme. The one relied upon
by the Respondent was the New Deal for Disabled People (NDDP). The Tribunal
Judge found that the Jobcentre advertisement for the post that the Appellant had
initially obtained had stated that the vacancy was “New Deal” only, and that
the letter offering her the position in June 2006 had stated, “I am
writing to offer you a New Deal fixed term appointment”. The simple case
advanced for the Appellant before the Judge was that whatever the other five
variants of the New Deal scheme offered the NDDP did not offer ‘employment’;
rather, it offered a facility to assist disabled people to seek and prospectively
obtain employment. The Appellant relied on an extract from a booklet giving
key facts about the New Deal scheme, which described the NDDP in this way:
“New Deal for Disabled People
is a voluntary programme for disabled customers currently
receiving a qualifying benefit:
· Customers
are offered a meeting with a personal adviser trained in disability‑related
issues, who can help with referrals to suitable vacancies if appropriate.
· They
are also given details of externally‑provided Job Brokers locally, who
are contracted to deliver an ongoing personal service to interested customers.”
33.
Thus, Ms Andrews had submitted for the Appellant, NDDP does not
have or feature a scheme of ‘employment’, but rather is a scheme for the
introduction of disabled people to employment through suitable vacancies or
through the assistance of an employment broker.
34.
As indicated, the Respondent’s case advanced to the Judge, as reflected
not least in its grounds of resistance to the Appellant’s claim, was that the Appellant
had been employed “…on the New Deal for Disabled People scheme”.
35.
The Employment Tribunal Judge resolved the issue between the parties in
this way:
“9.2 As to whether NDDP is an excluded scheme, I agree with the
respondent’s submission that the Appellant has confused the services offered by
the respondent to its customers with the respondent’s employment scheme for New
Deal applicants. It is clear that the respondent offered employment on special
terms for New Deal applicants at least in so far as recruitment requirements
were concerned. This provided such applicants with an advantage at the
recruitment stage. The fact that the respondent is a government department and
that the Civil Service Commissioners had granted a recruitment exemption for
the respondent and for other government departments is sufficient in my
judgement to bring the scheme within Regulation 18 provided scheme is
designed is required by Regulation 18 to provide the employee with
training or work experience for the purpose of assisting him to seek or obtain
work.”
36.
The submission of Ms Andrews for the Appellant is that the Tribunal
Judge is there reaching an impermissible conclusion that the relevant
employment in this case was pursuant to a hybrid scheme designed by the Civil
Service Commissioners for those employed in Government Departments. The
Respondent urges that that is to misconstrue paragraph 9.2, and that the
Employment Tribunal Judge was in fact upholding its contention that the
Appellant had been employed on the NDDP scheme. It points, in particular, to
the later use of the phrase “her years as a New Deal employee” in
paragraph 9.3 of the Judgment.
37.
I am quite satisfied that the Judge was indeed, as asserted by the
Appellant, identifying a hybrid scheme that was not the published Government
scheme “New Deal for Disabled People” for the general public but was in fact an
internal departmental scheme designed for Government Departments by the Civil
Service Commissioners. It was not itself one of the six variants of the public
or national New Deal scheme but was a scheme that would provide employment in
the civil service for those who were otherwise eligible for the normal
or ordinary NDDP scheme(s).
38.
Ms Andrews submits that finding that the Appellant was employed on a
hybrid scheme - that was not the scheme expressly advanced by the Respondent - was
not permissibly open to the Employment Tribunal Judge. I cannot accept that
submission. It seems to me that the Judge was entitled, and indeed required,
to find the exact nature of any scheme that the relevant employee was “on” for
the purposes of applying the regulations. It was immaterial whether the Appellant
believed she was or was not on such a scheme or whether the Respondent believed
that the employee was on a particular scheme rather than a different scheme.
39.
Ms Andrews is on stronger ground in criticising that passage in
paragraph 7.2 of the Judgment in which the Judge says, “[w]hat matters is
that the Appellant was eligible for NDDP”. Had he there been directing himself
that the question of whether a person was “on” a scheme was to be determined by
whether they were “eligible” for such a scheme, that would have amounted to an
error of law. However, the passage taken in context indicates that he was only
there describing that it was necessary to be eligible for the NDDP scheme in
order to obtain the advantages of the Civil Service Commission’s own hybrid
employment scheme for those employees who would meet the eligibility threshold
for the NDDP itself. Ms Andrews is right to draw attention to the fact
that the existence of the hybrid scheme was no part of the Respondent’s case as
advanced at the Tribunal. That is correct, but it does not amount to an error
of law on the part of an Employment Tribunal Judge to find that the scheme is a
different arrangement from that which either of the parties believed it to be.
40.
Ms Andrews next submits that the conclusion of the Employment Tribunal
Judge was impermissible because the hybrid scheme was not in itself a “scheme”
for the purposes of Regulation 18. Ms Andrews asserts that many
employers, in both the private and public sector as, may give certain
advantages to persons who would be eligible for the New Deal schemes in
the selection and recruitment exercises for what are ordinary employments. She
submits, rightly in my judgment, that the simple fact that eligibility for the
New Deal scheme is established does not show that subsequently the employee is “on”
such a scheme. She suggests that it is impermissible for the Regulations to be
construed so that Regulation 18 excludes from the benefit of
Regulation 8 a person who by happenchance is introduced to employment with
the Government through the portal of New Deal eligibility when a person being
introduced to employment in the private sector would not be similarly
excluded.
41.
It seems to me that the crucial distinction is this. The Employment
Tribunal Judge has found as a matter of fact that there was in existence
a special departmental scheme of making employment available to those who were
eligible for the New Deal, even if the particular variant of New Deal scheme
itself (NDDP) would not have normally involved employment. That is a finding
of fact that I can no more go behind than can the Appellant to this appeal. It
is not a mere happenchance that the scheme in question is a Government scheme.
The Civil Service Commissioners have designed such a scheme to be applicable
across all Government Departments. That recognises the special position of the
Government in relation to facilitating the engagement in employment and work
experience of those who are without employment and in vulnerable
circumstances. Ms Andrews suggests that this is inconsistent with the
thrust of the Directive, which includes at Clause 2(2) of the Framework
Agreement:
“Member States after consultation with the social partners
and/or the social partners may provide that this scheme does not apply to:
[…] (b) employment contracts and relationships which have been
concluded within the framework of a specific public or publicly‑supported
training, integration and vocational retraining programme.”
42.
Her contention was that even the hybrid scheme identified by the Judge
was not a “…public or publicly‑supported training, integration and
vocational retraining programme”. She makes that submission on the basis that
the only schemes contemplated by Clause 2(2)(b) of the Framework Agreement
were those providing training, integration and vocational retraining as
part of a programme. She submits that the hybrid scheme identified by the
Employment Tribunal Judge was not a scheme that fulfilled all of those
component ingredients. I am not able to accept that submission.
Regulation 18 has been included in the 2002 Regulations to give effect in Great Britain to Clause 2(2)(b). It is plain from the Judge’s findings of fact that
the hybrid scheme offered in this particular context is a scheme that meets the
requirements of Regulation 18, and therefore no further recourse to the
Framework Directive is required or necessary.
The third issue
43.
Assuming again that Regulation 18 has some application to the
previous fixed-term contracts of employment under which the Appellant was
engaged (contrary to my finding on the issue), the last questions for the
Employment Tribunal Judge were whether the scheme he had found was one under
which the Appellant was employed “…for the purpose of assisting [her] to seek
or obtain work..” and whether that that employment “…was designed to provide [her]
with training or work experience…”: Regulation 18(1).
44.
Put shortly, the Appellant’s case before the Judge was that she had been
recruited through the portal of the Civil Service Commission’s hybrid scheme
(if the Judge’s finding as to that be right), but that the effect had been not
to produce any training or work experience for her but simply to deploy her
doing the same work as others who had not been eligible for the NDDP scheme.
As to that contention, the Employment Tribunal Judge’s reasons and conclusions were
as follows:
“9.3 It is accepted by the respondent that the Appellant, from
the outset, undertook the full range of duties of a First Contact Officer
working alongside colleagues who had been recruited in open competition. But
the Appellant’s submission that therefore the scheme was not designed to provide
her with training or work experience is flawed. It was precisely intended to
provide her with work experience; she was recruited into the role without
having to compete in the open labour market but having successfully obtained
employment she was then better able so to compete once she had built up a track
record of punctuality, reliability, capability and so on and she was able to
provide up‑to‑date references when later seeking employment in open
competition. The benefits gained during her years as a New Deal employee
appeared to be recognised by the Appellant […].”
45.
The Appellant’s case before me was that the Employment Tribunal Judge
was not entitled to reach those conclusions. Since the NDDP had at best been a
portal through which the Appellant entered into employment with the Respondent,
the fact that she had entered through such a portal did not mean that the
employment she thereafter undertook was for training or work experience, or was
intended to provide training or work experience. The fact was that once she
was in employment the Appellant carried out exactly the same work as any other
employee, whether recruited through the portal or otherwise.
46.
It does not appear to have been in dispute that no special training was
provided, so that the only way in which the requirements of Regulation 18
could be satisfied would be if the employment in question had been designed to
provide the Appellant with “work experience”. Ms Andrews submitted that
this term meant something more than the simple provision of work; in
particular, she suggested that the phrase “work experience” introduced a notion
of a programme of work specifically designed to provide an individual with a
structured introduction to the world of work. It did not simply mean
“experience in work”, which could be gained by any employee simply by dint of the
fact of being employed. Ms Andrews submitted that the Tribunal Judge had
erred in law in taking too broad an approach to “work experience” and simply
treating it as the benefit of actual employment that an individual received.
47.
Attractively as these submissions were put, in my judgment, there was no
error of law by the Employment Judge in this regard. It was for him to find,
as fact, whether the particular employment provided met the terms of
Regulation 18. For the reasons that he gave, and which I have set out above, he
decided that the particular nature of the benefit derived from the Civil
Service Commissioners’ special scheme for these prospective Government
Department employees could be contrasted with the ordinary experience of being
in the world of work. I am satisfied that that was a conclusion open to him on
the factual material that was advanced before him. Nothing in the measured and
well‑presented submissions of Ms Andrews has persuaded me of any
error in this respect.
Conclusion
48.
It follows that I reject the criticism of the Employment Tribunal
Judge’s conclusions on the second and third of the issues argued before him.
They seem to me to turn largely on findings of fact that were findings for the
Employment Tribunal Judge, rather than this Appeal Tribunal, to make.
49.
However, the determinative issue in this case is the first issue. That
is an issue of pure construction of the relevant statutory instrument. For the
reasons I have given, I am satisfied that the Employment Tribunal Judge’s
construction of the relevant Regulations was not one open to him. It follows
that the appeal will be allowed in respect of the first issue, and I will
direct that this matter be remitted to an Employment Tribunal to determine
whether or not the employer can make out the objective justification element of
Regulation 8 so as to avoid the making of a declaration under
Regulation 9(5).
Permission to Appeal
50.
At the close of oral submissions, I was invited by both parties to
consider whether, at least on the first issue, this was a case fit for the
grant of permission to appeal whichever way I were to decide it. In the event,
I have reached the opposite conclusion to another specialist judge on an issue
of statutory construction of some general importance. Those circumstances seem
to me apt for the grant of permission to appeal. The Respondent is accordingly
granted permission to appeal to the Court of Appeal should it wish to pursue
that course.
