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 ICR 577;  IRLR 288, Court of Appeal - John Hendy QC, Melanie Tether
Failure to renew or to extend a fixed-term contract did not, of itself, amount to the less favourable treatment of a fixed term employee in comparison to a permanent employee, within the meaning of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 reg.3(1)(b).
The appellant department (W) appealed against the overturning of a preliminary ruling that the non-renewal of a fixed-term contract was incapable of involving less favourable treatment within the meaning of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 reg.3(1)(b). The respondent (E) had been employed by W under a series of short, fixed-term contracts. Her appointment had been terminated after 51 weeks pursuant to W's policy of limiting the employment of fixed-term employees to 51 weeks, even where, as in the instant case, there was a continuing need for someone to carry out the same or similar duties. E, in her complaint before the employment tribunal, had argued that W's failure to renew her contract after 51 weeks amounted to her being treated less favourably than comparable permanent employees, within the meaning of reg.3(1)(b). W submitted that if the less favourable treatment was that asserted by E, then the only way of eliminating the discrimination complained of would be to convert the fixed-term contract into an indefinite or non-time limited contract. That would effectively amount to abolishing the distinction between fixed-term and permanent work and had clearly not been the outcome intended by either Council Directive 99/70 or the Regulations.
HELD: Once it had been recognised that fixed-term contracts were not only lawful, but were recognised in the preamble to the Directive as responding "in certain circumstances, to the needs of both employers and workers", it followed that the termination of such contracts by simple effluxion of time could not, of itself, constitute the less favourable treatment of a fixed-term employee by comparison with a permanent employee. Thus, the dismissal of a fixed-term employee by reason of her contract having come to an end could not, of itself, represent a detriment within reg.3(1)(b), Whiffen v Milham Ford Girls' School & anr (2001) EWCA Civ 385 , (2001) LGR 309 distinguished. In the instant case, the 51-week rule operated by W could be justified by reference to the Civil Service Order in Council 1995 and the Civil Service Commissioners Recruitment Code.