THE INDUSTRIAL TRIBUNALS

CASE REF:	2703/14

CLAIMANT:			Maria Susan Austin

RESPONDENT:		Belfast City Council

DECISION
The unanimous decision of the tribunal is that the claims of unfair dismissal contrary to the Employment Rights (Northern Ireland) Order 1996 and of less favourable treatment contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 are dismissed.

Constitution of Tribunal:
Vice President:	Mr N Kelly
Members:		Mr J McKeown
			Mr B Collins

Appearances:
The claimant appeared in person was not represented.
The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Belfast City Council Legal Department.

Background

1.	The claimant’s claim had been consolidated with another claim brought by a different claimant.  That other claim was conciliated and withdrawn before the start of the hearing of the present claim.  

2.	The claimant had been appointed to a fixed-term contract which had been extended.  On the expiry of the fixed-term (as extended) of that contract, she had been dismissed.

3.	The claimant alleged that she had been unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) and that she had been subject to less favourable treatment contrary to the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (‘the 2002 Regulations’).

Relevant law

4.	The 1996 Order provides at Article 127(1):-

“For the purposes of this Part an employee is dismissed by his employer if — 

(b)	he is employed under a limited term contract that terminates by virtue of the limiting event without being renewed ... .”

5.	Article 130 of the 1996 Order provides:-

“(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 –

				...

(c)	is that the employee was redundant ...

		...

(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 or unreasonably in treating it as a sufficient reason for the dismissing the employee, and

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

6.	Article 130A of the 1996 Order provides:-

“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a)	one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal, 

(b)	the procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

7.	The Employment (Northern Ireland) Order 2003 provides for a three step statutory procedure which must be followed where an employee is being dismissed.  That procedure is set out in Schedule 1 to that Order.  The first step is that the employer must set out in writing the issue that is leading him to contemplate dismissing the employee.  That statement must be sent to the employee with an invitation to a meeting.  

	The second step is that the meeting must take place before a decision is taken and that the employee has had a reasonable opportunity to consider his response to that information.  The decision is taken following that meeting.

The third step is that the employee should be allowed to appeal that decision.

8.	The 2002 Regulations implemented the Council Directive known as the Fixed Term Directive 99/70/EC.  Those Regulations apply, inter alia, to a contract of employment which will terminate on the expiry of a specific term.  

9.	Regulation 3 provides:-

“(1)	A fixed-term employee has the right not to be treated by his employer 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.”

10.	Regulation 4 provides:-

“(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 ... .”

11.	Regulation 2 provides:-

“(1)	For the purposes of these Regulations, an employee is a comparable permanent employee in relation to fixed-term 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 skill; 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 requirement of              sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.”

12.	Regulation 6 provides that an employee who is dismissed shall be regarded as unfairly dismissed for the purposes of the 1996 Order if the reason or principal reason for the dismissal is a specified reason.  Those specified reasons relate to allegations of victimisation under the Regulations, eg whether or not a claimant has brought proceedings or raised a complaint or given evidence under these Regulations, etc.  There is no provision which says that a dismissal of a    fixed-term worker which simply takes place on the expiry of the fixed-term, is automatically an unfair dismissal.

13.	The Great Britain Court of Appeal in Department of Work & Pensions  v  Webley [2004] EWCA Civ 1745 considered the case of a fixed-term worker at a job centre who had been employed for a 51 week period and then terminated.  Other employees had then been recruited at that point.  She had been terminated as a result of the expiry of the fixed-term.  There had been no shortage of work and no redundancy situation.  She claimed less favourable treatment.  That claim had been dismissed by the Employment Tribunal but her appeal to the Employment Appeal Tribunal had then been upheld.  It then went to the Court of Appeal.

	The arguments for the Department, which were successful, were that neither the Regulations nor the Directive sought to abolish the distinction between fixed-term work and permanent work, but only sought to eliminate differential treatment during the currency of the fixed-term.  

14.	The Court stated:-

“Once it is accepted, as it must be, that fixed-term contracts are not only lawful but are recognised in the Preamble to the Directive as responding, ‘in certain circumstances, to the needs of both employers and workers’, it seems to me inexorably to follow that the termination of such a contract by the simple effluxion of time cannot, of itself, constitute less favourable treatment by comparison with a permanent employee.  It is of the essence of a fixed-term contract that it comes to an end at the expiry of the fixed-term.  Thus, unless it can be said that entering into a fixed-term contract is of itself less favourable treatment, the expiry of a fixed-term contract resulting in the dismissal of the fixed-term employee cannot, in my judgment, be said to fall within Regulation 3(1).  Similarly, the fact that the termination of the contract by simple effluxion of time results in the dismissal of the fixed-term employee cannot, of itself, represent a detriment within Regulation 3(1)(b).  The same arguments applies.  The termination of the contract is an inevitable consequence of it being for a fixed-term.”

The hearing

15.	The claim had been case-managed.  Witness statements had been exchanged in advance of the hearing in accordance with case-management directions.  Each witness sworn or affirmed to tell the truth, adopted their previously exchanged witness statements as their entire evidence-in-chief and then moved immediately to cross-examination and brief re-examination.  The case concluded with final submissions from both parties. The case was heard on 17 August 2015.

16.	The claimant gave evidence on her own behalf.  Ms Jacqueline Wilson, the business manager in the Parks & Leisure Department of the respondent and Mr Eamon Neeson, the Principal Human Resources Adviser of the respondent gave evidence on behalf of the respondent.

17.	At the conclusion of the submissions, the tribunal reserved its decision.  This document is that decision.

Relevant findings of fact 

18.	The claimant was employed by the respondent from 27 February 2012 as a ‘Project Support Assistant (High Hedges)’.  That appointment was described in the claimant’s terms and conditions of service as a ‘temporary project post for 12 months subject to review’.  That initial fixed-term would therefore have expired on 26 February 2013.  

19.	The claimant’s job description described the ‘main purpose of job’ as follows:-

“To be responsible to the Senior Woodland and Recreation Officer through the Project Officer (High Hedges) for the provision of comprehensive and quality support service regarding the delivery of urban forestry services, with specific reference to the High Hedges Act.  To assist in the end-to-end administration associated with the High Hedges Project including arranging meetings and appointments; minute-taking; following up on relevant actions; drafting correspondence and papers and other similar duties.  To perform such tasks and duties assigned to the post in accordance with specified time and quality targets.”

20.	The claimant’s post, and one other post, had been created by the respondent in response to the new legislation in relation to hedges.  That legislation allowed for a complaints process from neighbours.  It had been anticipated that there would be 200 formal complaints per year and that each of those complaints would bring in a £350.00 fee.  On that projected basis, the two posts would be self-financing.  Those two posts were therefore created on a temporary (fixed-term) basis to test the projection.  

21.	The claimant’s post was first extended to 27 March 2013, subject to review, and was then further extended to 28 March 2014.  

22.	The respondent’s initial projection did not work out.  Only five formal complaints were made under the new legislation.  Most issues under the legislation were dealt with informally and did not require formal complaints.  The two posts were therefore not required as had initially been anticipated.  The claimant had been diverted to other duties on a temporary basis to keep her busy.  

23.	On 19 February 2014 the claimant was advised in writing that her contract had been extended for a further period until 30 September 2014 and that Mr Barr, the Landscape Planning and Development Manager wanted to meet her to discuss the current position regarding her fixed-term contract.  A meeting was fixed for 4 March 2014 and the claimant was advised that she was entitled to bring a trade union representative or colleague with her to that meeting.  

24.	A note of that meeting was kept.  That note was headed ‘Record note of a meeting in relation to end of contract’.  The claimant did not have trade union representation but was happy to continue without that representation.  The claimant was informed that:-

“As you are aware Maria, your fixed-term contract has been extended for a further six months until 30th of September 2014.  The purpose of this meeting is to discuss this and to inform you that it is unlikely to be extended beyond this date as the project will end.”

25.	The respondent explained the position in relation to the low level of incoming complaints and the lack of funding.  The claimant acknowledged that she did hardly any work in relation to High Hedges.  The claimant was advised that she now had time to apply for any other posts that were advertised internally.  The claimant was asked whether she wished to add anything.  The claimant stated:-

		“No.  I knew it would be coming to an end.”

26.	On 20 August 2014, the claimant was written to by the respondent in the following terms:-

“I write to update you on the current position regarding your temporary employment, in that your contract is due to terminate within the Parks and Leisure Department of Belfast City Council.  Accordingly you are invited to attend a meeting to discuss this matter with myself, Paul Barr.  I have scheduled the meeting for the 1st of September 2014 at 2.00 pm in my office at Adelaide Exchange.”

The claimant was advised that she was entitled to a trade union representative or a colleague at that meeting.  

27.	The claimant was advised at this meeting that the contract had reached its limit and that it would not be renewed.  The claimant was further advised that in relation to an appeal:-

“I would need to check but as far as I am aware the fixed-term contract is ending and is being terminated.”

28.	The claimant lodged an appeal against her dismissal on the same day.  She stated that:-

		“The grounds of my appeal are:

			(1)	Not renewing my contract due to exceeding a time-limit.

			(2)	The continual high workload and ongoing nature of my duties.

(3)	The expressed need for my post by both my line manager and unit manager.”

29.	The respondent wrote to the claimant on 12 September 2014 answering queries that had been raised by the claimant in the course of the meeting on 1 September 2014 and advising that her letter of 1 September 2014 had been passed onto Departmental HR.  The respondent referred to the claimant’s letter of appeal as a letter requesting ‘a review’.  However, that difference in terminology does not appear to be significant.  

30.	The respondent wrote again to the claimant on 15 September 2015 stating that a ‘review meeting’ had been fixed for 24 September 2014.  The claimant was advised she was entitled to bring a trade union representative.  

31.	The claimant was further advised by the respondent on 18 September 2014 that it would try to find alternative employment.  The respondent’s letter repeated that the claimant had been advised that her temporary contract would end and that the reason for that termination was because the project would not be continued.  That meeting was re-scheduled for 9 October 2014.  

32.	The claimant was represented by a trade union representative during that meeting on 9 October 2014.  The claimant was advised in that meeting that she had been employed to deal with the High Hedges legislation and that the projected level of complaints had not materialised.  It was acknowledged that her job had evolved over the years but that the main purpose of her job was still in relation to High Hedges.  The respondent stated that the post had always been a project post and that it had been set up in that way to pilot it.  The post would only have been made permanent if the workload had been there.  

33.	In the course of this meeting the claimant asked:-

		“Do we get a chance to appeal this decision?”

	The respondent stated that her employment would be extended for a further two weeks to allow the process to take place and asked her to re-submit the letter of appeal for Ms Wilson’s attention.  The claimant agreed to do so.

34.	The appeal hearing was fixed for 17 November 2014.  The claimant had not been able to attend.  She stated she had got another job.  That job was with the same employer and she had not asked for time off to attend the appeal.  

35.	The appeal hearing was re-scheduled for 19 December 2014.  It was then apparently re-scheduled for 13 January 2015.  The claimant failed without reasonable excuse to attend either appeal.

36.	The claimant replied on 26 January 2015 stating that she believed the meeting on 9 October 2014 to have been the appeal meeting.  She did not request a further date.  

37.	The claimant received a final payment.  She stated, during her cross-examination, that this had never been identified as a redundancy payment and that she needed that issue clarified.  That assertion is puzzling since she clearly had identified a ‘redundancy payment £1,310.15’ in her tribunal complaint form.

Decision 

38.	The claimant made it plain that her claim of less favourable treatment contrary to the 2002 Regulations was in relation to the respondent’s decision to dismiss her on the expiry of her fixed-term, as extended.  She regarded it as sufficient that her dismissal had been due to the expiry of that fixed-term.  To her mind, her claim had been established at that point.  

39.	That, of course, is not correct.  The non-renewal of a fixed-term contract cannot, of itself, be unfavourable treatment for the purposes of the 2002 Regulations.                Fixed-term contracts naturally expire at the end of the fixed-term, either as originally fixed or as extended.  That is why they are called ‘fixed-term contracts’ rather than ‘indefinite contracts’.  Such contracts have not been outlawed.  The Directive and the Regulations both permit such contracts.  Leaving aside the victimisation provisions, which were not relevant to the present case, the Directive and Regulations simply provide that during the currency of the fixed-term contract, there should not be less favourable treatment than that afforded to a permanent (or   open-ended) employees.  It is in fact only where an employee has been employed continuously on successive fixed-term contracts, or on successive renewals of one fixed-term contract, over a period of four years or more, that an employer is required to establish objective justification for not continuing employment on an open-ended basis.  In the present case the claimant had been employed on a   fixed-term basis for considerably less than four years.  

40.	The claimant alleges that she had been led to believe that her contract would have been converted into a permanent contract.  That allegation is not supported by documentation which makes it plain that the claimant had been employed as a Temporary Project Worker for a fixed period and that this employment was always subject to review.  The allegation is not supported either by the claimant’s own remarks during the meeting on 4 March 2014 where she stated that:-

		“I knew it would be coming to an end.”

	In any event, the claimant accepted, in cross-examination, that the                           fixed-term contract on which she had been employed had never been made permanent and that she had never been told by the respondent that it would be made permanent.  

41.	The claim of less favourable treatment contrary to the 2002 Regulations must therefore fail.  Such a claim cannot be made simply because of a non-renewal of a fixed-term contract.  If that were the case, fixed-term contracts would effectively have been made unlawful.  That is clearly not the case.

42.	In any event, the claimant gained alternative employment with the respondent, commencing on the next working day after her dismissal and that new post has been made permanent.  She is therefore in a better position than previously when her post had been expressly a temporary post.  The claimant has given no details of any alleged loss in evidence.  Even if a claim of less favourable treatment could be established, and it could not, the claimant had established absolutely no loss.

43.	The claim of unfair dismissal must also fail.  There clearly had been a ‘dismissal’ in law.  However, the respondent has established that the claimant had been employed to assist in the implementation of the High Hedges Act and that the employment had been provided on the basis of a projected figure of 200 formal complaints annually.  The respondent had projected that the claimant’s post and one other post would therefore be self-financing.  That had not in fact occurred.  The projected workload had not materialised and the remaining work was                     re-distributed.  The claimant’s contract expired on its due date (as extended) by the ‘effluxion of time’.

44.	The tribunal is therefore content that the respondent has established that the reason for the dismissal was either redundancy or some other substantial reason; both potentially fair reasons for the purposes of the 1996 Order.  

45.	The respondent appears to have been somewhat confused in this matter.  It offered meetings, reviews, and appeals, together with offers of redeployment.  It went far beyond what it was required to do under the legislation.  The respondent complied with the statutory three-step procedure and indeed exceeded it.  The final ‘appeal’ meeting was offered on multiple occasions and the claimant did not attend on those occasions even though she was at that stage still employed by the respondent.  She had not asked for time off to attend any of these meetings and she had had no valid reason for not doing so.  The basis for the non-renewal of the fixed-term contract was made plain to the claimant in writing.  It had been discussed with her during multiple meetings.  An appeal had been offered repeatedly and the claimant had failed to turn up to any such appeal.  

46.	The decision of the respondent to dismiss the claimant by non-renewal of the              fixed-term contract was a reasonable decision that a reasonable employer was in all the circumstances of the case entitled to have reached.  The work which had been generated under the relevant legislation turned out to be considerably less than the projected amount of work for which the claimant had been recruited.  The claimant had been given other duties on a temporary basis to keep her occupied but her original contracted post was simply not required.  It was therefore a fair dismissal for the purposes of the 1996 Order.  

	Even if a claim of unfair dismissal could have been established, and it could not, the claimant had put forward no evidence of financial loss for the purposes of any compensatory award and had already received the equivalent of a basic award as a redundancy payment.

47.	The claims of less favourable treatment contrary to the 2002 Regulations and of unfair dismissal contrary to the 1996 Order are therefore dismissed.

Vice President

Date and place of hearing:	17 August 2015, Belfast

Date decision recorded in register and issued to parties: