Fixed-term and Part-time Employees
Since 1 October 2002 and the introduction of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, it has been unlawful to treat fixed-term employees less favourably than comparable permanent employees. This includes less favourable treatment as regards the terms of the employee's contract and by being subjected to any other detriment by any act, or deliberate failure to act, of one's employer (Reg 3). However, the right only applies if the treatment is on the ground that the employee is a fixed-term employee and is not justified on objective grounds.
2004 saw the first cases coming before the Employment Appeal Tribunal (EAT) involving alleged less favourable treatment of fixed-term employees.
Any complaints brought under the Regulations must be made within three months of the less favourable treatment or detriment. For example, in the EAT case of Coutts & Co plc and anor v Cure & anor EAT 0395/04, the EAT held that the time in which to present a complaint for employees on fixed-term contracts who had not been awarded bonuses ran from the date on which the employer finally determined the details of the bonuses to be awarded and not the date of the initial announcement that some bonuses would be paid.
The recent case of Webley v Department for Work and Pensions EAT 0033/04 raised the prospect that the non renewal of a fixed-term contract might, depending on the circumstances, constitute less favourable treatment contrary to Regulation 3. In this case W was employed on a number of consecutive fixed-term contracts over a 51 week period at the end of which she was dismissed. W claimed that she had been subjected to less favourable treatment in comparison to permanent employees who would not have had their contracts terminated after 51 weeks continuous employment.
The Employment Tribunal held that such circumstances could not amount to less favourable treatment under the Regulations. This was then appealed to the Employment Appeal Tribunal which set aside the Tribunal's decision and directed that the case be heard on its merits by a different tribunal.
However, on appeal the Court of Appeal identified the key question to ask: could it amount to less favourable treatment where the only act W complained of was the non-renewal of her fixed-term contract? The Court of Appeal held that it must be accepted, in light of the Fixed-term Work Directive (No 99/70) and the Regulations, that fixed-term contracts are not unlawful. Therefore, it follows that the termination of the fixed-term contract by the passage of time cannot in itself constitute less favourable treatment, in the same way that an employer's failure to convert a fixed-term contract into a permanent contract cannot. The court refused W's request for permission to appeal to the House of Lords.
There has also been further case law on the issue of whether an employee working under a fixed-term contract, which provided that the parties could terminate before the end of the term by giving notice, could be said to prevent the contract from being fixed-term. In Allen v National Australia Group Europe Ltd 2004 IRLR 847, the EAT held that the notice provision did not prevent the contract being a fixed-term contract and the employee was therefore entitled to rely on the protection of the Regulations.
There have also been recent case law developments relating to part-time employees.
July - 2000 the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 have made it unlawful to treat a part-time worker less favourably than a comparable full-time worker as regards the terms of the employment contract or by being subjected to any other detriment by any act, or deliberate failure to act, of one's employer. In order to rely upon the Regulations, part-time workers have to show that they are employed on `the same type of contract' (Reg 2) as their full-time comparators. They also have to be engaged in the same type of work or broadly similar work to that of their comparators as demonstrated by a recent case involving fire fighters.
In Matthews and ors v Kent and Medway Towns Fire Authority and ors 2004 ICR 257, the Court of Appeal, in upholding the original decision of the Employment Tribunal found that part-time fire fighters could not pursue a claim under these Regulations because they were not employed `in the same or broadly similar work' as their full-time colleagues. It was found that the full-time fire fighters had additional duties to those part-time fire fighters including educational, preventive and administrative tasks. The part-time fire fighters were only called upon to respond to fire and other emergencies.
It remains to be seen how the two sets of Regulations will impact on the developing rights of both part-time and fixed-term employees but we can be sure that there will be further case law in the months ahead.
For further information contact Adrian Berkeley on 0161 371 0011
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