THE INDUSTRIAL TRIBUNALS 

CASE REF:	00778/05

CLAIMANT:		Andrew Biggart

RESPONDENT:		University of Ulster

DECISION

1.	The unanimous decision of the Tribunal is that the Claimant was unfairly dismissed by the Respondent. The matter will be reconvened for assessment of damages for the reasons set out in the decision.

2.	The unanimous decision of the Tribunal is further that the Claimant has suffered less favourable treatment on the basis of his being employed as a fixed term contract worker contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.  The Tribunal makes no further award of compensation to the Claimant in relation to the breach of Fixed Term Employees Regulation for the reasons set out in this decision.

Constitution of Tribunal:

Chairman:		Miss E McCaffrey		

Panel Members:	Mr U Adair
			Ms F Graham

Appearances:

The Claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Thompson McClure, Solicitors.

The respondent was represented by Dr J McMullen, Solicitor of Watson Burton LLP.

THE ISSUES

There are two issues for the Tribunal to decide.

1.	Was the Claimant unfairly dismissed from his employment with the Respondent by its failure to renew his fixed term contract or by reason of redundancy in February 2005?

2.	Did the Claimant, who was a fixed-term contract employee, suffer less favourable treatment than a comparable permanent employee in being dismissed from his employment without the respondent considering redeployment and without affording him a right of appeal against his dismissal?  

FACTS

1.	The Tribunal received witness statements from the Claimant and from Ms Shapcott and Dr Barbara Stewart Knox on his behalf.  The Tribunal also received witness statements and heard evidence from Mr Ronnie Magee, Director of Human Resources at the University of Ulster, Professor Moran, Professor Derek Birrell and  Ms Roisin Cowan.  The Tribunal also considered documents introduced by the parties.  On the basis of the evidence, the Tribunal makes the following relevant  findings of fact.

2.	In June 1999, the Claimant was appointed as a lecturer in Social Policy/Sociology within the School of Social and Community Sciences at the Coleraine campus of the University of Ulster.  While the post was primarily concerned with promotion of research within one or more of a number of defined areas, the job advertisement also specified that “the position will also involve some teaching contributions in the area [of] Personal Social Services, Labour Markets, European Union or introductory Social Policy or Sociology.”  The post was advertised as being initially for a five year period and based at the Coleraine campus.

3.	The Claimant successfully completed his three year probationary period and was primarily involved in  research within the University.  He worked mainly on two long term research projects, known respectively as the FATE and YOYO projects.

4.	The School of Social and Community Sciences was subsequently restructured in the summer of 2001 as part of a re-organisation of schools within the University.  The original school was split and the Claimant remained as a lecturer within the School of Policy Studies while some of his colleagues were reassigned to the School of Sociology and Applied Social Studies.  The two Schools however remained within the Faculty of Social Sciences, which included six Schools in total.

5.	In the summer of 2002 a decision was taken by the Faculty of Social Sciences to consolidate social policy teaching provision at the Jordanstown and Magee campuses.  Staff were consulted on the issue of where they would prefer to be relocated.  The Claimant disputed that his views had been properly taken into account in relation to this matter.  However it is clear that he did not in fact move from the Coleraine campus and that he was allowed to remain there to complete the research projects on which he was then working.

6.	Over the summer of 2003 staff who were to move campus were relocated.  Mrs Bernie McGill a lecturer within the School of Policy Studies moved to Jordanstown.  Mr Andrew Hamilton, another lecturer, moved to Magee.  Other members of the academic staff, including Professor Birrell, also moved to Magee.  One other member of the academic staff, Mr Harrison, was transferred to the School of Psychology and the technical and administrative staff were also redeployed.  The Claimant continued his research from his office at Coleraine and most of his allocated teaching was at the Coleraine campus on courses which were “running out” at Coleraine but he also did some teaching at Jordanstown.  When the Housing Degree closed at Magee campus, two of the staff engaged on that course in the School of Policy Studies - Paddy Grey and Professor Chris Paris - transferred to the School of the Built Environment at Jordanstown campus.  Professor Moran confirmed this had occurred about three or four years before the hearing.

7.	The Claimant’s concern was that with the re-organisation of the various schools and the redeployment of staff to Magee and Jordanstown respectively he had been effectively “side lined” at Coleraine.  He believed that this had happened because of his fixed-term contract status.

8.	The main reason for the relocation of the teaching of Social Policy to Jordanstown and Magee was because of financial constraints.  The School of Policy Studies in 2001/2002 had incurred the highest deficit within facility of Social Sciences.  At that time the debt was £774,000.00.  This reduced the following year but the deficit was still £650,000.00.  Staff costs were the main contributory factor and there was pressure to make sure that costs were reduced.  Over the next two years the School of Policy Studies recovered considerably.  Mr Magee was clear that the Faculty of Social Sciences, in conjunction with the Financial Planning Group of the University (of which he was a member) had clear objectives to reduce its overall deficit and in particular staffing costs.  The way in which this was to be achieved was by not replacing retirees, by not renewing fixed-term contracts which came to their natural end and seeking voluntary early retirements.  By July 2004 the net deficit had been cut from in excess of £700,000.00 in 2001 to £49,000.00 in July 2004.

9.	By the year ended July 2005 the net deficit within the School of Policy Studies had been completely turned around and the school was showing a net surplus of £124,000.00 per annum.  The staff costs as a percentage of the total core costs had also been reduced substantially.  

10.	There was obviously considerable pressure to reduce costs and one way of reducing costs was to reduce the staff.  Professor Moran made it clear that the School of Policy Studies had an extremely high percentage of staff costs compared with other schools within the faculty.  In 2002/2003, the percentage of staff costs for the School of Policy Studies was approximately 74% compared with 33% in the School of Law.

11.	There are approximately 150–200 staff employed on fixed term contracts each year at the Respondent university.  People employed under such fixed term contracts fall into three main categories.  The largest is contract research staff who are employed on temporary external research funding, usually for a relatively short period of time (on average 1–2 years).  There are also staff who are employed to cover a specific temporary need within the university for example to cover maternity leave, or to cover long term sickness absence.  The third category, which is relatively small, are lecturing and academic staff who are employed directly by the university, and this is the category into which the Claimant fell.

12.	The Joint Negotiating Council for Higher Education (JNCHES) had issued guidance to universities on the best practice in dealing with fixed term contracts in higher education.  Much of the guidance related to contract research staff.  The guidance highlighted the need for institutions to establish proper redundancy procedures in relation to fixed term contract staff in light of the legislation introduced under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.

13.	Mr Magee, the Director of Human Resources for the university, advised the Tribunal that the university did not have a redundancy policy.  He advised that the university did not need one because no permanent member of academic staff had ever been made redundant.  When he was pressed further in relation to this matter, he advised that the university had wanted to put a redundancy policy in place but that they had been unable to do so because they were unable to agree it with the trade unions.

14.	It was Mr Magee’s evidence that the University of Ulster did not treat non-renewal of fixed term contracts in the same way as any other grievance or redundancy was to be treated under the procedure set out in the University Statutes.  He pointed out that the procedure to be followed under the University Statutes would take at least three months or longer to work through for each case.  Additionally the appeals process required that a legally qualified person, often a judge, had to act as chairperson.  In his view this was completely impracticable, and he indicated  the trade unions  had not asked the university to put this procedure into effect.  He indicated that the only procedure which was in place was a procedure whereby the Human Resources Department notified Heads of School on a monthly basis of fixed term contracts which were due to expire and asked Heads of School to notify the staff affected.  When asked whether the University applied the procedure set out in the Labour Relations Agency’s code of practice in relation to redundancies, Mr Magee indicated that he was not familiar with the code of practice.

15.	The Tribunal was shown a copy of the standard memo which accompanied the lists of fixed term contract holders circulated to Deans and Heads of School on a monthly basis.  The central paragraph of that memo reads as follows:-

	“Legislation tells us that there is a greater onus on the University as an employer to consult with the Trade Unions and each individual member of staff regarding the termination of their contract.  It is most important that you as a line manager review this list every month and and liase (sic) directly with those staff whose FTCs are due to expire and keep them informed of extensions, renewals or terminations.  In the case of the latter, where clearly there is no possibility of renewal due to lack of funding or due to the completion of the project under which they were originally employed, it is absolutely essential that you inform the individual of the circumstances and and their termination date both orally and in writing.  If at any stage you have any doubts about a particular circumstance you should liase (sic) with the HR consultant or advisor who looks after your area.” 

16.	By the second half of 2003 the Claimant had already raised the issue of his future position with Professor Moran, the Dean of the Faculty of Social Sciences.  The Tribunal has seen and considered the detailed emails which passed between the Claimant, Professor Moran and Professor Birrell, his Head of School from 2003 until the ending of the Claimant’s employment in 2005.  The research projects in which the Claimant was engaged were due to be completed in July 2004 and September 2004 respectively, but he sought an extension of time to finish up and complete work.  He was also seeking funding for other new projects which were due to commence in the near future and had a prospective duration of 5 years.  His concern was that the research projects might not necessarily fund the cost of his post.  He explained that the usual procedure was that the funding would cover only new posts which had to be created to support the research.  Professor Moran’s advice to the Claimant was that if he could secure funding in relation to research which would cover his salary, she thought it likely that his post could be extended.  The Claimant himself was aware that often decisions in relation to renewal and extension of fixed term posts were made very close to the expiry of the initial contract.  At that time the Claimant was working on an EU sponsored research contract  due to complete in July 2004 (“the YOYO project”) and a second project due to complete in September 2004 ( “the FATE project”).

17.	In the meantime the Claimant was also pursuing funding for new projects and had asked Professor Moran for her endorsement in making these applications.  Professor Moran told the Claimant that she did not have authority to support any proposal which would run beyond the current life of his contract and that he could not submit an application for funding without the University’s approval.  The European project to which the Claimant wished to apply was a five year project.  Professor Moran suggested that the Claimant should make the application jointly with another colleague; if the research funding was then approved, the Claimant would, in her view, have a better prospect of his contract being renewed to enable him to pursue the new research project.  The Claimant’s concern about this was that if there was a co-signatory on the application form and his contract was not renewed, he would have effectively secured funding for the University and would not be able to take the project (and consequent funding) with him if he moved to another post.  Also, his co-signatory would effectively receive the credit for the Claimant’s work.

18.	He sought advice from his union and was advised that he should not make an application on the basis of it being a joint application for funding.  This was effectively a “Catch 22”.  If the application for funding was not made, the Claimant’s contract would certainly not be extended on the basis that there was a new research project for him to carry out.  On the other hand, if he made the application on a joint basis with a colleague there was still a chance that his contract would not be extended and he would not have “ownership” of the research project if in fact his application were successful.  The Claimant submitted his application for funding under the EU project without university approval, but this was not successful.

19.	In February 2004 an application for extension of the Claimant’s contract until November 2004 was granted to enable him to see his two research projects through to completion.

20.	In the spring of 2004 it became apparent that there would be a need for additional teaching in sociology at the Jordanstown campus, as the course had proved popular.  The Financial Planning Group (the “FPG”) of the University needed to consider the creation of a new lecturer’s post in Sociology.  Professor Birrell, who was the Claimant’s Head of School, had pointed out to Professor Moran in a memo that the Claimant had been appointed as a lecturer in Social Policy and Sociology and that he was qualified to teach Sociology at university level.  Professor Birrell raised the query as to whether the Claimant could simply transfer to the sociology post.  Professor Moran did not consider that this was viable.  She told the Tribunal that she had specifically raised the query as to whether or not the Claimant could transfer schools and was told that this was not possible because he was on a fixed term contract.  When it was put to both Mr Magee and Professor Moran that the Sociology post would have been a suitable redeployment opportunity for the Claimant, they said this was not possible.  All University posts had to be externally advertised to comply with the Equality Commission’s Code of Practice on Recruitment and Selection.

21.	Towards the end of April 2004, Professor Moran emailed the Claimant to advise that she had requested FPG to grant an extension to his contract for a further year, on condition that he would travel to Jordanstown and contribute to teaching on the Sociology course.  She stated that her intention was that the lecturer’s post in Sociology would be deferred for a year and in the interim, if the Claimant was willing to teach on the Sociology course and her proposal was accepted, he would have gained experience in teaching Sociology and be well placed to apply for the fulltime lecturer’s post in sociology when it was advertised.  Professor Moran had actually put the proposal of new post in Sociology to the FPG as a “fallback” in case the FPG did not approve an extension to the Claimant’s contract.  In the event her application to the FPG for an extension to the Claimant’s contract was not supported at the meeting of the Group in May 2004, but the creation of a new Lecturer’s post in Sociology was approved.

22.	Later that year Professor Moran made a further request to the FPG for an extension of the Claimant’s contract to February 2005 to allow him to complete his research work, and this was agreed.  In November she also wrote to the Claimant requesting an update on his new funding applications and reminding him of the end date of his contract in February 2005.  He was already aware at this stage that a post in Sociology was being advertised in the School of Sociology and Applied Social Studies within the Faculty.  The Claimant applied for that post and was interviewed for it on the 10th December 2004.  He was not successful in his application.  

23.	During the period from December to the end of February 2005 there was no effort at redeploying the Claimant to another post nor was there any meaningful consultation between him, his head of school Professor Birrell and the Dean, Professor Moran, about possibilities for redeployment or alternative work.  The post in the School of Sociology, for which the Claimant believed that he was well equipped, had not for some reason been seen as a suitable redeployment option and Professor Moran’s direct evidence to the Tribunal was that the Claimant could not be considered for a transfer to another school because of his fixed term contract status.

24.	In the middle of February the Claimant requested a meeting with Professor Moran regarding feedback on his interview for the sociology post.  Professor Moran had been a member of the interview panel for that post.

25.	Professor Moran agreed to meet the Claimant and his union representative Dr Barbara Stewart Knox on the 14th of February at the University of Ulster.  In the course of that meeting (of which no notes were made or retained by Professor Moran) the Claimant asked if he had been considered for a fixed term post or a permanent post.  He also asked if he had been considered to be appointable by the recruitment panel.  Professor Moran responded that she “did not know” and referred the Claimant to Human Resources.

26.	The question of the Claimant’s dismissal was raised again on that day.  	Professor Moran agreed to meet the Claimant on a subsequent occasion to discuss his dismissal but only with someone from Human Resources 	present.  The Claimant again requested a written statement of reasons for his dismissal and Professor Moran said that she was preparing such a statement.

27.	A further meeting took place between the Claimant, Professor Moran, Dr Stewart Knox and Mr Magee of Human Resources on the 17th of February at the University of Ulster.  The Claimant raised issues in relation to the Sociology post and asked whether the person who had been appointed had been appointed to a fixed term or a permanent post.  The Claimant also asked why his contract was ending.  Mr Magee responded that a written statement providing the reasons for the Claimant’s dismissal had already been sent by email.  He indicated that the email stated that there were financial reasons for the dismissal, but the email was in fact only sent to the Claimant while this meeting was taking place.

28.	When the question was raised as to whether the work which had been done by the Claimant would continue after his dismissal, Professor Moran responded that the Claimant’s post was research and not teaching.  It was pointed out however that his job title was “lecturer”.  It was confirmed at that meeting that the modules in which the Claimant had been teaching would be ongoing and that someone within the School had to be found to continue the teaching work.  It was clear from that meeting that there were no issues over the Claimant’s competency or willingness to take on the work.  The Claimant also asked Mr Magee if he was satisfied that the proper procedure had been followed in relation to his pending dismissal and Mr Magee indicated that he was satisfied about this.  He also indicated that if the Claimant wished to take the matter further there were no other internal means of appeal and he would have to take the matter outside the university.

29.	Both Professor Moran and Mr Magee referred to this meeting as an “appeal” meeting in their evidence to the Tribunal.  The Claimant however was clear that the meeting was convened to discuss the ending of his employment and the reasons for it.  He had not previously been made aware of the reasons for the termination of his employment, other than the expiry of his fixed term contract.  There was no notification given to the Claimant that the meeting was an appeal meeting, and no written record was maintained of the meeting by anyone from the university.  The Claimant was not notified in advance that the meeting would be an appeal, he was not told of his right to be accompanied at the meeting nor was there any other specification made in relation to that meeting.  It is the finding of the Tribunal that the meeting on the 17th of February was not an appeal meeting at all and that this label was given to the meeting after the event by Mr Magee and Professor Moran.

30. 	About the same time, early in 2005, the Faculty was setting up a Social Policy Research Institute, in common with other Faculties within the University, with the aim of enhancing the research profile of the University.  While membership of the Institute was in effect an honorary award made to some academic staff, there were also two posts - one for a Reader and one for a Lecturer – which were created and for which the Claimant applied.  He was not appointed to either post and there was no discussion of these being possible redeployment opportunities for him.

31. 	The Claimant’s employment ended on the 28th February 2005.  He subsequently made efforts to seek alternative employment and had some part-time research work over the spring and summer of 2005.  He was ultimately successful in being appointed to a Readership and Lecturership in education at The Queen’s University of Belfast commencing on the 14th June 2006.

32.	The Claimant suffered loss in accordance with the agreed schedule of loss, a copy of which is attached to this decision for ease of reference.  The total loss, including pension loss, comes to £38,189.23.  The Claimant also received Jobseeker’s Allowance for part of the period when he was out of work.  The amounts of the benefits were as follows:-

25.03.05 – 11.04.05 	£143.10
18.07.05 – 02.09.05		£377.35
03.09.05 – 13.09.05		£  88.32
16.09.05 – 25.11.05		£570.03
26.11.05 – 13.01.06		£281.00

THE LAW

33.	The law in relation to unfair dismissal is set out at Part XI of the Employment Rights ( NI) Order 1996 and in particular at Articles 126 and following.

34.	The most pertinent provisions for the present case are as follows:-

	“Art. 126.- (1) An employee has the right not to be unfairly dismissed by his employer.
	(2) Paragraph (1) has effect subject to the following provisions of this Part (in particular Articles 140 to 144 ).

	“Art.127 – (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2)…, only if) –

(a)	the contract under which he is employed is terminated by the employer ( whether with or without notice),
(b)	he is employed under a limited-term contract that terminates by virtue of the limiting event without being renewed, or
(c)	the employee terminates the contract under which he is employed in circumstances in which he is entitled to terminate it without notice by reason by reason of the employer’s conduct.

“Art 130-
(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it  is for the employer to show –
(a)	the reason ( or , if more than one, the principal reason) for the dismissal, and
(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)	A reason falls within this paragraph if it –
(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b)	relates to the conduct of the employee,
(c)	is that the employee was redundant, or
(d)	is the employee could not continue to work in the position which he held without contravention ( either on his part or on that of his employer ) of  a duty or restriction imposed by or under a statutory provision.
……………….
(4)	Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair ( having regard to the reason shown by the employer) –

(a) 	depends on whether in the circumstances ( including the size and administrative resources of the employer’s undertaking) the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and 
(b) 	shall be determined in accordance with equity and the substantial merits of the case.”

35.	In this case, the respondent argued that the Claimant had been dismissed fairly on grounds of redundancy, but the Claimant ‘s case was that the respondent had failed to show that  the dismissal was both substantially and procedurally fair.  The established  principles to be applied in such cases are set out in  Williams v Compair Maxim [1982] ICR 156.  It is clear that to show a dismissal is fair, the employer must show that as much warning as possible has been given to staff and unions of impending redundancies, there must be prior consultation on the redundancies, the employer should adopt reasonable and objective criteria for selection for redundancy, selection should be made in accordance with the criteria and   the employer should also seek suitable alternative employment for the affected employee.

36.	If it finds that the proper procedures have not been followed, the Tribunal should also consider whether the outcome would have been different had proper procedures been followed, or whether it would have been the same, regardless of the procedures followed (Polkey v AE Dayton Services Ltd [1987] 3 WLR 1153).

37.	On the second issue, of alleged less favourable treatment of the Claimant due to his fixed-term contract status, the relevant  law is to be found in the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland ) 2002 (“ the 2002 Regulations”).

38.	The Regulations provide as follows :

	“3.- (1) A fixed-term employee has the right not to be treated by his employee less favourably than the employer treats a comparable permanent employee –

(a)	as regards the terms of his contract; or
(b)	by being subjected to any other detriment by any act, or failure to act, of his employer.

	(2)	Subject to paragraphs (3) and (4), the right conferred by paragraph (1) includes in particular the right of the fixed term employee in question not to be treated less favourably than the employer treats a comparable permanent employee in relation to –

(c)	any period of service qualification relating to any particular condition of service,
(d)	the opportunity to receive training; or
(e)	the opportunity to secure permanent employment in the establishment.

(3)	The right conferred by paragraph (1) applies only if-

(a)	the treatment is on the ground that the employee is a fixed-term employee, and 
(b)	the treatment is not justified on objective grounds.

(4)	Paragraph (3)(b) is subject to regulation 4……………..

“4.- (1) Where a fixed term employee is treated by his employer less favourably than the employer treats a comparable permanent employee as regards any term of his contract, the treatment in question shall be regarded for the purposes of regulation 3 (3)(b) as justified on objective grounds if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment………..

“2.- (1) For the purposes of these Regulations, an employee is a comparable permanent employee if, at the time when the treatment that is alleged to be less favourable to the fixed term employee takes place-

(a) 	both employees are
 
			(i) 	employed by the same employer, and 
(ii) 	engaged in the same or broadly similar work  having regard, where relevant, to whether they have a similar level of qualification and skills; and 

(b)	the comparable employee works or is based at the same establishment as the fixed –term employee or , where there is no comparable employee working or based at that establishment who satisfies the requirements of sub-paragraph (a) , works or is based at a different establishment and satisfies those requirements.

(2) For the purposes of paragraph (1), and employee is not a comparable permanent employee if his employment has ceased.”

39.	There is not a great deal of case-law on the interpretation of the 2002 Regulations at present.  However, the background to the  2002 Regulations is considered in some detail in the case of Adeneler v Ellinikos Organismos Galaktos [2006 ]IRLR 716, a decision of the European Court of Justice.  This case sought a ruling from the ECJ on the legality of the legislation adopted in Greece to implement the EC Fixed-Term Work Directive 1999/70 and the Framework Agreement, which provide the basis for the 2002 Regulations.  In considering the Greek legislation, the ECJ made the following observations on the issue of Fixed-Term Contracts:

	“The Framework Agreement proceeds on the premise that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities…..
	“Consequently, the benefit of stable employment is viewed as a major element in the protection of workers, whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers” (Judgment, paras.61, 62)
	
	The Court continued 
	
	“…….the concept of “objective reasons”, within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising  a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term contracts.

	“Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or , as the case may be, from pursuit of a legitimate social policy objective of a Member State.” (Judgment, paras. 69 and 70)

40.	In the United Kingdom, there do not yet appear to have been any reported decisions on the 2002 Regulations from the higher courts.  The House of Lords gave judgment  in 2006 in a  case on the  related issue of less favourable treatment for part-time workers.  In Matthews and others v Kent and Medway Towns Fire Authority and others [2006] 2All ER 171 the House of Lords said that, in considering  whether part-time firefighters were engaged on the same or broadly similar work as their full-time colleagues, particular weight should be given to the extent to which their work was the same and the importance of that work to the enterprise as a whole. Otherwise the risk would be run that undue weight might be given to the differences which were the almost inevitable result of one worker working fulltime and another working part-time.  The authors of Harvey on Industrial Relations and Employment Law  suggest that a similar approach should be taken in deciding whether a permanent employee is a “comparable” employee  in relation to a fixed term employee within the meaning of the 2002 Regulations.

DECISION

41. 	There are two issues for the Tribunal to decide.

1.	Unfair Dismissal

42.	It was conceded by the respondent that the Claimant was dismissed and the respondent argued that he had been fairly dismissed by reason of redundancy.  The Tribunal accepts that the Faculty of Social Sciences at the University was facing severe financial constraints from 2001/02 on wards and that reduction of staff costs was an appropriate measure to consider as part of its steps to reduce the overspend.  It notes however that by the summer of 2004, when the Claimant’s contract was initially due to expire, the deficit had been substantially reduced and the university was recruiting new staff in the Claimant’s field.  The Claimant took issue with the claim of redundancy, claiming that he had been unfairly dismissed.  He argued that the respondent had not followed proper procedures in respect of his dismissal, had failed  to consult with him and his union and had failed to consider options for his redeployment.

A  	Procedures and consultation

43.	The Claimant’s contract was initially due to expire in July 2004, but was extended first to November 2004, then to February 2005.  In the months leading up to July 2004, there seems to have been little or no meaningful consultation or discussion with the  Claimant by anyone within the university who had authority to make decisions about his future.

44. 	The procedure which was adopted by the university of notifying the unions and Head of School of impending expiry of Fixed-Term Contracts (see paragraph 16 above) did not constitute consultation at all in the Tribunal’s view.  At best, it asked Heads of School to inform the employee  concerned of any developments in relation to their contract.  It did not however provide for meetings or discussions regarding the grounds on which the employee was to be dismissed, consideration of any points the employee wished to raise in relation to their employment or of any option for suitable alternative employment.

45.	The reasons advanced by Mr Magee for not following a proper redundancy procedure are simply breathtaking in their arrogance and inadequacy.  He told the Tribunal that the University did not have a redundancy procedure because it had never made a permanent member of staff redundant and therefore did not need one.  He then went on to advise that the reason a procedure had not been adopted was because the University had been unable to agree it with the Unions.  The Tribunal was astounded to hear this evidence given by a senior and experienced Human Resources Director.  The lack of an established written procedure is certainly deplorable in an organisation such as the University of Ulster which has a large workforce.  However this should certainly not prevent an employer from adopting a fair and proper procedure in any case where a redundancy arises.  The elements of a fair procedure are well-established in the case law and the Labour Relations Agency’s Code of Practice  provides valuable guidance in this respect.  There is simply no excuse for the complete lack of procedure in this case.

46. 	It is well- established that for consultation in redundancy situations to be meaningful, it must involve parties who have the authority to make decisions about the employee’s future.  Both Professor Moran and Professor Birrell, who were the Claimant’s line managers, agreed that they had no authority to make decisions about the Claimant’s future employment: that power lay with the FPG.  The only proposal put to FPG regarding the Claimant was in relation to an extension of his contract.  At no time does it appear from the papers before the Tribunal or the evidence given  that the FPG considered directly the question of the Claimant’s selection for redundancy, suitable alternative employment or redeployment.  In May 2004, when a request for a year’s extension to the Claimant’s contract was before them, along with  a proposal for a new lecturer’s post in Sociology, the FPG did not consider redeploying the Claimant to that new post.

47. 	In February 2005, when the Claimant requested a meeting with Professor Moran to discuss feedback from his job interview for the Sociology post, he was also concerned about his impending dismissal and the reasons for it.  However, the notes of the meeting held on 14 February 2005 prepared by Dr Stewart Knox, the Claimant’s union official, indicate that Professor Moran would not discuss that question of the dismissal without support from Human Resources.  There was no suggestion in those notes – which are the only written record of the meeting – that the meeting to be held with HR support was an appeal against the Claimant’s dismissal.  Indeed the notes record that the Claimant pressed Professor Moran at the 14th February for a written statement of reasons for his dismissal and was told it was being prepared.

48. 	A meeting was arranged with Professor Moran and Mr Magee for the Claimant and  Dr Stewart Knox on 17 February 2005.  There was no letter sent to the Claimant, advising him that this meeting was an appeal against his dismissal, nor did either Mr  Magee or Professor Moran take any notes of the meeting, which would be considered good practice.  The written statement of reasons for dismissal, which had been requested, was emailed to the Claimant in the course of the 17th February meeting and therefore he did not have sight of that information in advance of the meeting.  It is difficult to see how anyone could conduct an effective appeal against a decision when  they did not know the reasons for the decision in the first place, particularly when they were not told in advance that the meeting was an appeal.  Although Professor Moran was not a member of the FPG, Mr Magee was : it seems contrary to the rules of natural justice that Mr Magee should hear an appeal against a  decision of a body of which he was a member.  And Professor Moran was clear that she did not have any authority to change the decision already made by the FPG.  The Tribunal is clear that no appeal meeting was held: that label was applied to the meeting afterwards by Mr Magee and Professor Moran in an effort to retrieve some semblance  of a non-existent procedure. 
 
49. 	The Tribunal has no hesitation in holding that the Claimant’s dismissal was procedurally unfair for the reasons set out above.

B 	The Options for suitable alternative employment.

50. 	The onus is on the employer in a redundancy situation to show that they have considered suitable alternative employment for an employee identified for redundancy.  The Claimant outlined three possible sources of suitable alternative work, as follows.

(a) 	The research applications

	The factual background to the Claimant’s applications for further research funding is set out at paragraphs 17, 18 and 19 above.  In effect, the Claimant believed that the  University refused to support his application to take part in a 5 year EU Funded Programme, which would have brought income to the University, because he was on a fixed term contract and his contract would not be guaranteed for the duration of the research programme.  He believed that this lack of support had been detrimental to his application, which was not successful.  Dr McMullan argued that, had the Claimant accepted Professor Moran’s advice to make the application with a co-signatory from the permanent staff, then there would have been a greater chance of success for the research application and the funding attached to a successful application would have led to a renewal of the Claimant’s contract.  The Tribunal is unable to say which account is accurate:  there was certainly no promise held out to the Claimant that if his funding application were successful, this would lead to a renewal of his contract.  We cannot therefore say that University support would have guaranteed a successful outcome to the Claimant’s application and that this would have ensured a renewal of his contract.  

(b)	The Sociology Lectureship

51.	The application to FPG to approve a new Lecturer’s post in Sociology took place in May 2004 and the Claimant’s contract was due to expire in July the same year.  While that post was in the School of Sociology and Applied Social Studies and not in the Claimant’s School, it was part of the original School (Social and Community Sciences) to which the Claimant had  been appointed when he joined the University in 1999.  His job title was as a Lecturer in Social Policy/Sociology and his primary degree was in Sociology.  Professor Birrell had already made a proposal to Professor Moran that the Claimant should be able to transfer directly to the Sociology post, but this had been turned down.  However given that Professor Moran was willing to recommend that the Claimant be allocated teaching in Jordanstown, she clearly considered him competent to teach Sociology.  There  was an evident need for a Lecturer in that field: the Claimant was already a Lecturer and was well–qualified for the position.  It was suitable alternative employment in every sense.  Mr Magee suggested that it would not have been appropriate to redeploy the Claimant to the Sociology post because every post had to be externally advertised to comply with equality legislation.  This seems to the Tribunal to take the guidance contained in the Equality Commission’s Code of Practice on Recruitment and Selection to its extreme and in contradiction of the rights of existing employees not to be dismissed for redundancy where there is suitable alternative employment available.
 
52.	It was also suggested that it was not viable to transfer staff across Schools, but no concrete reason was given against this.  First of all, the School to which the Claimant would have transferred was part of the School where he was originally appointed and he would have moved to teach the subject of his primary degree.  Secondly, there was a precedent for permanent staff transferring Schools: in 2003 when the Schools were realigned, Mr Harrison moved from the School of Social and Community Sciences to Psychology.  Other permanent members of staff, Paddy Grey and Professor Chris Paris, who had been employed within the School of Social Policy, were transferred to the School of the Built Environment at Jordanstown when the Housing Degree closed at Magee.

53.	The Tribunal therefore does not accept the respondent’s arguments in relation to the Sociology post : it was suitable alternative employment and if the respondent had redeployed the Claimant to this post, it would have saved him from being made redundant.      

(c) 	The Research Institute posts 

54.	Membership of the Institute was an honorary  position, it did not involve additional duties or carry any additional salary.  It is unlikely that Membership of the Institute would have saved the Claimant’s position.  However the new posts of Lecturer and Reader were possible alternative employment for him.  Certainly the Lecturer’s post seemed a likely suitable alternative post, as it was at the same level as his existing job.  The Reader’s post may also have been alternative employment, but may also have represented a promotion and was not perhaps as obvious as the Lecturer’s post  as suitable employment for the Claimant.  The Tribunal finds that the failure of the respondent to consider the Claimant for these posts may well have altered the  outcome of the Claimant’s selection for redundancy.

55. 	It is the finding of the Tribunal that the dismissal of the Claimant was both procedurally and substantively unfair, for the reasons set out above.  The Tribunal is well aware that it must not substitute its own decision for that of the employer in an unfair dismissal case.  It is however obliged to consider whether the outcome would have been different had the respondent followed proper procedures.  In this case, the Tribunal believes that if proper procedures had been followed, it is probable the Claimant would have been redeployed, either to the Sociology Lecturer’s post in the summer or autumn of 2004, or to the Lecturer’s post at the Research Institute in early 2005 when that post became available and that he would not have been dismissed.

56. 	 The agreed Schedule of Loss attached to this decision shows the loss sustained by the Claimant to be £36,189.23 and it is intention of the Tribunal to compensate the Claimant in full for the loss he has sustained between the date of his dismissal and the date when he found alternative employment. But as  the amount set out in the Schedule of Loss is over £30,000,  the Tribunal  wishes to clarify the position in relation to any Income Tax liability on the award before it is finalised.

2. 	Was the Claimant treated less favourably on grounds of his fixed term status?

57. 	The Claimant‘s claim to the Industrial Tribunal alleged that he had received less favourable treatment on grounds of his fixed –term status than a comparable permanent employee in that he was refused the right to appeal against his dismissal and his employment was terminated without considering redeployment.  He subsequently withdrew that part of his claim which related to the refusal of the right to appeal against his dismissal.  The respondent’s representative argued that in order to show that the Claimant was treated less favourably than a permanent member of staff, he must compare himself with a permanent staff member who had been selected for redundancy and for whom the option of redeployment had been considered.  This was impossible, said the respondent, because no permanent member of staff had ever been in such a position and therefore there was no such actual comparator in existence.   Mr Grainger, for the Claimant, rejected this point of view, arguing that it required an unduly narrow construction of the 2002 Regulations.  He further submitted that the Claimant had clearly identified a number of comparators- Mr Harrison, Mr Grey and Professor Paris – who had been relocated to a different campus and School to avoid the threat of redundancy.

58. 	The Tribunal believes that the approach advocated by the respondent is too narrow.  The 2002 Regulations simply require (see Regulation 2, set out above) that at the time when the alleged less favourable treatment occurs, the fixed-term employee and the permanent employee are employed by the same employer and engaged on the same or broadly similar work.  It does not require the comparator to be in exactly the same situation in relation to his circumstances as the fixed term employee.  If this were the case, it may well rob the legislation of its effectiveness.  In the present case, Mr Magee told the Tribunal that to reduce staffing costs in the Faculty, a decision had been taken not to replace retirees, not to renew fixed-term contracts and to seek early retirements.  Therefore Fixed-term employees as a group had been identified as a group vulnerable to dismissal and this in itself constituted less favourable treatment compared to permanent staff employed at the university in similar posts.

59. 	The Claimant identified three comparators who were employed as academics at the University of Ulster at the same time as him and who transferred to a different School to meet changes in courses.  The difference was that when the Claimant asked through Professor Birrell to be considered for a move to another School, he was refused on the basis that he was on a fixed term contract.  This was Professor Moran’s clear evidence to the Tribunal and no other reason was given.  The Tribunal finds that the Claimant has suffered less favourable treatment on grounds of his fixed-term status than a comparable permanent employee in being refused redeployment to suitable alternative employment when his fixed term contract ended.  The Tribunal also finds that this less favourable treatment means that the terms on which the Claimant was employed were not at least as favourable as the terms under which a permanent member of staff was employed and so cannot be objectively justified  under Regulation 4 of the 2002 Regulations.

60. 	The 2002 Regulations (Reg. 7(7), (8) and (10)) provide that where a tribunal finds a claim under the Regulations to be well founded, it may order compensation to be paid to the Claimant.  The compensation shall be such as the tribunal considers just and equitable having regard to the infringement complained of and the loss attributable to the infringement, but shall not include an award for injury to feelings.  As the Tribunal has already indicated its intention to award compensation to the Claimant to cover all the loss he suffered as a result of his dismissal, it would not be appropriate to make any further award of compensation in this case.

Chairman:

Date and place of hearing:  2-6 October 2006 and 20-21 November 2006, Belfast

Date decision recorded in register and issued to parties: