Labour & European Law Review Weekly Issue 522 31 May 2017
According to the rules governing employment in the civil service, appointments have to be made on the basis of fair and open competition. In Secretary of State for Justice v Betts and ors, the Employment Appeal Tribunal (EAT) held that this rule applied just as much to employment in a post in the civil service as it did to appointment as a civil servant.
The three claimants were employed as sessional teachers in the prison service during a period when there was a freeze on recruitment of employed staff due to a restructuring programme within HMPS. As such, none were appointed “on merit on the basis of fair and open competition”, as required under section 10(2) of the Constitutional Reform and Governance Act 2010 (CRAGA), which refers to “the selection of persons who are not civil servants for appointment to the Civil Service”.
All three wished to bring claims under the Employment Rights Act (ERA) which meant that the tribunal had to decide whether they were employees or not.
According to the employment judge, there were two key questions for her to decide. First, whether there was a distinction between appointment to the office of civil servant and that of Crown employment; and secondly, whether the Secretary of State was prohibited under the wording in CRAGA from offering employment outside the recruitment principles of fair and open competition.
She decided firstly that there was a distinction between appointment as a civil servant (which must be subject to the recruitment principles), and Crown employment which is determined by reference to tests set out elsewhere.
She concluded that the recruitment principles applied only to appointment to the civil service and not to recruitment to Crown employment as the wording in the legislation differentiated between the two types of selection. The Secretary of State therefore had the power to enter into contracts of employment outside the recruitment principles.
Allowing the appeal, the EAT held that the tribunal was wrong to rely on the term “appointment” to draw a distinction between recruitment to an office in the civil service and employment with the civil service under section 10 of CRAGA. Instead, it was an entirely neutral term, covering all recruitment and appointment. In effect, employment was a subset of appointment in the sense that appointment might or might not lead to employment but undoubtedly was the umbrella term.
It made no sense to exclude employment selection from the principle of fair and open competition, not least because to do so would deprive the legislation of much of its effect, allowing people to be employed to work in the civil service without such competition. Such an important public safeguard would have limited effect if the requirement of fair and open competition only applied to appointment as a civil servant and not to employment in a post in the civil service.
The EAT concluded therefore that the Secretary of State had no discretion under section 10 CRAGA to select people for employment except on the basis of merit and fair and open competition. The contracts of employment of the three complainants were therefore ultra vires and of no effect, although this conclusion did not affect their status as workers.
This decision resolves long-standing uncertainty as to the status of individuals who appear to be working in the Civil Service but who were not appointed following a proper procedure.