Fitton v City of Edinburgh
Although secondments often work to an employee’s benefit, beware the tale of Dr Fitton in Fitton v City of Edinburgh. The Employment Appeal Tribunal (EAT) ruled that as the identity of her employer changed during her secondment her original employer (the council) was not liable for her claims of unfair dismissal and sex discrimination.
Basic facts
After having worked for the city council for many years, Dr Fitton went on a year’s secondment in February 2003 to the Edinburgh Lifelong Partnership (ELLP).
Half way through the secondment, however, she asked for the post to be made permanent and the council wrote to her on 6 August 2003 confirming that she was to work “indefinitely” (which the parties agreed meant “permanently”) or until her retirement in 2011 for ELLP.
In her reply of 10 August, she agreed to relinquish her council post, on condition that if the secondment came to an end, she would be guaranteed a comparable post with the council’s education department. After that, the council had nothing more to do with her work and had no contact with her, apart from the fact that it paid her salary through its payroll.
ELLP was dissolved in March 2005 and Dr Fitton resigned in June. She then lodged claims for unfair dismissal and sex discrimination against the council.
Tribunal decision
The tribunal first had to figure out who Dr Fitton’s employer was during the time to which her complaints related. In other words, from August 2003 to June 2005. To do so, it said it needed to establish two things - who was responsible for giving her work and who controlled that work.
It concluded that she had been employed by ELLP from August 2003 onwards. Her only “contract” with the council during that time was an express undertaking to reallocate her to a post comparable to the one she had relinquished if the arrangement with ELLP came to an end.
Dr Fitton appealed, arguing that the council should have specifically told her that by relinquishing her council post, she was bringing her employment with them to an end. Had she known that, she said she would never have accepted an open ended secondment with ELLP.
EAT decision
But the EAT agreed with the tribunal that the identity of Dr Fitton’s employer had changed during her secondment.
It said that after 10 August 2003, the council had no right to require anything of Dr Fitton, nor did she have any right to demand anything of them. Although the council processed her salary, it did so under an arrangement with ELLP whereby it was deducted from money that it would have paid to the organization in any event as part of its partnership contribution to their work.
ELLP decided her level of pay and conditions of service, not the council. The reference to her salary and conditions remaining the same in the council’s letter of 6 August 2003 only applied if the ELLP post came to an end. She herself had pointed out that it was not for the council to interfere with her salary and conditions while she was at ELLP.
Dr Fitton had written a letter confirming that she was giving up her post with the council and that as from 10 August 2003, she made clear that she neither expected or intended to return to work for them.
In addition, in her application to the tribunal, her grievance document and in the course of the appeal hearing, she made reference to having resigned from her post with the council.
The EAT concluded that just because the parties called it a secondment did not necessarily mean that it was. It dismissed her appeal.