End of term

Biggart v University of Ulster

The law generally requires employers to treat the termination of a fixed term contract as a redundancy and to apply a proper procedure. It also requires them to treat fixed-term employees no less favourably than comparable, permanent employees.

In Biggart v University of Ulster, an employment tribunal said that the University’s failure to consult with Dr Biggart when his contract came to an end was an act of discrimination against him as a fixed term worker.

The UCU instructed Thompsons to act on his behalf.

Basic facts

Dr Biggart was initially employed in June 1999 on a five year fixed-term contract that was twice extended to enable him to finish his funded research. When it finally ended in February 2005 he was not offered alternative employment even though the university was recruiting new sociology staff, albeit in a different school on another campus. When he was unsuccessful in a job application, the university made no effort to re-deploy him.

He claimed unfair dismissal and less favourable treatment because of his fixed term status. The University claimed he had been fairly dismissed for redundancy when his fixed-term contract in a school that had been facing financial problems came to an end.

The law

The law on unfair dismissal requires the employer to show that the reason for dismissal is a potentially fair one – in this case, redundancy. The employer also has to show that they gave as much warning as possible of the impending redundancy, that they consulted with the employee, that they adopted reasonable and objective criteria for the redundancy and that they tried to find suitable, alternative employment.

Under the fixed-term employees regulations 2002, Dr Biggart had to show that he had been treated less favourably than a comparable permanent employee.
Unlike other forms of discrimination law, however, he had to find an actual comparator, as opposed to a hypothetical one.

Unfair dismissal decision

With regard to the unfair dismissal claim, the tribunal pointed out that, although the University was a large employer, it had no procedure to inform employees of the impending expiry of their fixed term contracts. In this case, it did not arrange any meetings or discussions or try to find suitable, alternative employment for Dr Biggart. Instead, it simply told the Head of School to tell him that his contract was coming to an end.

It said that the reasons given by the University for not having a redundancy procedure were “simply breathtaking in their arrogance.” It also said that the meetings it held with him could not constitute consultation because it did not involve people who had the authority to make decisions about Dr Biggart’s future.

Discrimination decision

The University argued that as no permanent member of staff had ever been made redundant, there was no appropriate comparator and the claim must therefore fail. The tribunal, however, said that this approach was much too narrow.

Instead, it followed the decision of the House of Lords in Matthews and ors v Kent and Medway Towns Fire Authority and ors (LELR 110) which said that courts should focus on whether the work done by both groups was “broadly similar”.

On that basis, the tribunal said that the regulations did not require the comparator to be in exactly the same situation as the fixed term employee. Otherwise “it may well rob the legislation of its effectiveness.” It decided that three other members of staff who were redeployed (unlike Dr Biggart) to other posts as part of a reorganization were suitable comparators.

As the University had decided not to renew fixed term contracts to reduce staffing costs, they were therefore, as a group, vulnerable to dismissal and this in itself constituted less favourable treatment. The tribunal awarded Dr Biggart a total of just over £36,000.

Comment

This ruling sends the message to employers that they must generally treat fixed-term workers equally with permanent staff in any redundancy situation. The failure of the university to discuss and consult with Dr Biggart over his options when his contract came to an end, and to allow him a proper right of appeal against his dismissal was an act of discrimination because of his fixed-term worker status