Indirect Discrimination and Fixed Term Workers

whitehallA few weeks ago I made reference to the preamble of European Council Directive 1999/70/EC on fixed term appointments which states that the “parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers.”

Likewise, the Civil Service Management Code, set out at para 1.2.3 that “Fixed-term appointments are temporary appointments to meet short term needs. Such appointments may be made only where there is a genuine need to employ people for a short period, and must be compliant with the Recruitment Principles.”

However, as is often the nature of things despite such words the reality is less clear-cut. Whereas fixed term appointments were once reserved for specialist roles there has been a definite increase in such appointments at more junior levels of the civil service and for jobs that are indistinguishable from their permanent peers. The UCU in Lancaster University v UCU [2010] UKEAT/0278/10/2710 won an important judgement that required collective consultation when an employers planned not to renew a large number of contracts. However, just when the climate looked a little more rosy for those in more vulnerable employment the government promptly amended the Trade Union and Labour Relations Act 1992 to make clear that the non-renewal of a fixed term appointment no longer counts as a dismissal for the purposes of statutory redundancy consultation thereby pulling back the extra protection the judgement had afforded FTA employees.  And so, the position is now that a fixed term appointee who is dismissed for redundancy reasons when the reason they are dismissed is that they are a fixed term appointee will now find it very hard to argue they have been treated less favourably as a fixed term appointee.

And so now, as we are faced with government desperate to find further staffing ‘efficiencies’ it is not a surprise to find that it is its fixed term appointees who are being targeted for dismissal. Which raises the prospect that such a course of action may itself amount to indirect discrimination if employees identifying with certain protected characteristics are disproportionately affected. It appears there is precedent for this argument.

In Whiffen v Milham Ford Girls’ School & Anor [2001] EWCA Civ 385 a teacher had been on a series of fixed term appointments for five and a half years. The school had to make job cuts and had a policy of letting its fixed term appointees go before considering the redundancy of permanent staff; women were much more likely to be fixed term appointees. In this case which was brought under the then extant Sex Discrimination Act, the Court of Appeal had to consider whether the treatment, which they accepted put female employees at a disadvantage, could be objectively justified. The Court found that the treatment was not objectively justified and that the employer had indirectly discriminated against the claimant on the basis of sex.

I do not see any reason, in principle, why the same situation could not apply here when Civil Service begin their purge of fixed term appointments and reps would be wise to interrogate equality data on who has been affected by planned job losses. It seems to be not only are there sex discrimination possibilities but also potential age discrimination concerns (in my experience many FTA employees are aged 30 or under).

Changes of Contract and the Equality Act

ContractClaims under sections 19 and 20 of the Equality Act 2010 require that a provision, criterion or practice place (or in s.19 would place if applied) an individual with a protected characteristic at a substantial (in the case of section 20) or a particular (in the case of section 19) disadvantage.

In Edie & 15 Ors v HCL Insurance BPO Services Ltd  [2015] UKEAT 0152_14_0502 the Employment Tribunal asked the question as to whether the imposition of new – and detrimental – contractual terms could amount to a PCP with reference to section 19(1) of the 2010 Act. I don’t see why this would not equally apply to the PCP in section 20(3) of the Act.

In many ways this is a commonsense decision but the clear authority that a change of contract situation does not just raise prospects of a common law/constructive dismissal remedy but also (especially) protection on indirect discrimination grounds is a welcome one. This is because it gives a more tangible protection to workers than the theoretical option of constructive dismissal arguments (if you’re on the breadline walking away from an income even if a breach is grievous and fundamental it is not often a realistic option and this gives employers a license impose inequitable changes).

Certainly in my experience members in the PCS Union  are seeing a raft of changes in the workplace, changes that in my view are likely to amount to contractual variations. Many of these do place particular groups (expecially on age and disability grounds) at a disadvantage. So, for example, changes to a contractual grievance procedure that applies to all employees and make it harder to have grievances heard may still place disabled employees at a disadvantage if disabled staff are five times more likely to submit a grievance than non-disabled staff.

This doesn’t change much but at least it makes it a bit easier to force employers to objectively justify their discriminatory conduct since it is less easy to evade the issue by denying contract changes are a PCP.

A PDF of the judgement.

PCS Union win court victory on changes to terms and conditions

PCS has today announced that its challenge of the National Audit Offices decision to unilaterally change terms and conditions of service from its employees has been successful:

On 15 December, PCS won the important case against the NAO’s decision to reduce the contractual sick pay and leave of its existing staff.

This dispute started in late 2012, when the Cabinet Office wrote to all government departments, asking them to make sure the terms and conditions on offer to civil servants were in line with those provided by a “good, modern

employer”. In practice, this meant suggesting reductions in various terms and conditions, such as entitlement to sick pay. PCS organised a national response to this with the ‘Don’t rip up our rights’ campaign.

The Cabinet Office did not write to the National Audit Office, since the NAO is not part of government. Instead, it works directly for Parliament as its ‘spending watchdog’— certifying the accounts of government bodies and producing value-for-money reports on public spending.

Strong defence

But despite being independent of government, the NAO decided to reduce the terms and conditions it offered anyway. In fact, it decided to go further than government departments, and impose reductions on the contractual terms and conditions of its existing staff.

We mounted a strong defence, including a joint grievance, comprising 10% of the entire NAO workforce, a motion from the PCS group of MPs, and industrial action.

NAO management would still not come back to the negotiating table or make changes to their proposals. So, in 2014 we supported 2 members who took a test case to an employment tribunal. NAO management argued that the wording of the contracts allowed them to make changes to the terms and conditions of staff even without their agreement.

The NAO won this original tribunal case, having claimed they were following the example of Asda-Walmart, which had previously succeeded in doing something similar. But our legal advice said this was flawed.

In December, PCS took the case to an employment appeal tribunal and won. The EAT ruled that the NAO did not have the right to change the contractual terms of its staff without their agreement.

This ruling does not just benefit staff at the NAO. It also sets a legal precedent which should help to protect workers across the country from employers trying to impose detrimental changes in similar circumstances.

Although not stated in the briefing the case would appear to be that of Norman v National Audit Office. It does not look as if the reasons for the EAT’s judgement have yet been published.