According to regulations introduced in 2002, fixed-term workers cannot be treated less favourably than permanent workers, unless the employer can justify the difference.
In one of the first cases to be heard under the regulations - Webley v the Department for Work & Pensions - the employment appeal tribunal (EAT) said that the tribunal had asked the wrong question and ordered a full hearing by a different tribunal. The case was backed by Thompsons.
What did she claim?
Ms Webley started work as an administrative officer at the Leyton Job Centre on a short- term, temporary contract on 4 February 2002, which expired on 3 May 2002. She was then given a succession of fixed-term contracts, the last of which expired on 17 January 2003, just short of the one-year qualifying period for unfair dismissal.
Someone else then had to be employed to do her work because fixed-term, casual employees (who are not appointed under full, fair and open competition rules) cannot be employed for more than 51 weeks. This is known as the 51-week rule.
What did the parties argue?
The applicant complained that permanent employees would not have their contract terminated at 51 weeks, and that this constituted a 'detriment' contrary to the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
The DWP justified the dismissal on two grounds. Firstly, on the basis of the 51-week rule; and secondly, that there is no obligation under the regulations to convert a fixed-term contract into a permanent contract and so there can be no detriment when it expires.
What were the issues to be considered?
The chair of the tribunal decided that the question to be answered was 'whether the non renewal of a fixed-term contract is capable of involving less favourable treatment within the regulations'.
The EAT judge decided that the real questions to be decided were these:
- as an employee with a fixed-term contract, was it a term of the contract that Ms Webley was subject to the 51-week rule?
- if so, was that term applied to a permanent employee?
- if not, was the applicant less favourably treated than her permanent comparator?
- alternatively, was she subjected to a detriment by the application of the 51-week rule to her and not to a comparable permanent employee?
- if she was subjected to less favourable treatment, was that treatment because she was a fixed-term employee and could it be justified on objective grounds.
What was the answer?
The EAT judge said the employment tribunal's decision to dismiss Ms Webley's claim was wrong. He argued that 'it simply cannot be said that the non-renewal of a fixed-term contract is incapable of involving less favourable treatment, otherwise an applicant whose employment ends on non-renewal of her fixed-term contract would invariably be precluded from bringing a claim under the regulations'.
In coming to his decision, the EAT judge relied on the case of Whiffen v Milham Ford Girls School (2001, IRLR 468) in which Mrs Whiffen complained that she had not been considered for redundancy under the employer's selection procedure because she was a fixed-term employee. Although the regulations were not in force at the time, the judge said that the case showed that non-renewal of her fixed-term contract was capable of involving less favourable treatment in those circumstances.
He therefore allowed the appeal, set aside the chair's decision and directed that the case be heard before another employment tribunal, 'at which all the issues identified above may be properly considered, based on the evidence and arguments to be advanced by the parties'.
The DWP has since appealed this decision to the Court of Appeal and the case is due to be heard at the end of November.