Introduction
Where a fixed-term or part-time employee is subjected to less favourable treatment in the form of a series of similar acts or failures, the time limit for bringing a claim is three months from the last act/ failure in the series. The Employment Appeal Tribunal (EAT) has confirmed that, where the complaint concerns acts or failures that span across a number of separate and distinct contracts with gaps in between these can be sufficiently linked to be treated as a series and thereby extend the time limit for claims to be brought.
Legal background
Fixed-term employees and part-time workers are protected from less favourable treatment compared to permanent or full-time staff doing the same or broadly similar work, under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (collectively “the Regulations”).
Claims under the Regulations must normally be lodged within three months of the date on which the less favourable treatment or detriment took place. However, where the less favourable treatment is part of a series of similar acts or failures, the complaint must be presented within three months of the last in the series. For the purposes of calculating the date of the less favourable treatment or detriment, that treatment is regarded as taking place on each day of the period during which the treatment is less favourable.
Facts
Dr Ibarz taught Spanish and Latin American Studies at the University of Sheffield. The University splits its academic years into two semesters. Dr Ibarz was engaged on a series of short-term contracts lasting one semester at a time, separated by the University’s holidays.
Dr Ibarz brought a claim in the Employment Tribunal (ET) complaining that since 2004 the University had breached the Regulations by treating him less favourably than other full-time and permanent employees in various ways, including in relation to: holiday pay; pay progression; and pension entitlement.
The ET found that Dr Ibarz’s employment with the University was not continuous because during the University’s holidays there was no contractual relationship between the parties.
The ET then went on to conclude that events which took place during different teaching contracts could not form part of a “series of similar acts”, with the result being that his claim would be confined to matters which occurred during the last semester before he commenced proceedings.
Dr Ibarz appealed against the ET’s judgment.
Decision
The EAT upheld Dr Ibarz’s appeal and remitted the matter back to the ET to be decided afresh. The EAT concluded that the ET had misread an earlier Court of Appeal case: Arthur v London Eastern Railway Ltd (“Arthur”).
The ET had understood the judgment in Arthur to preclude the possibility that an employer’s consistent application of particular practices and policies to a series of discrete and separate contracts of employment could amount to a series of similar acts.
The EAT found on the contrary that the Court of Appeal in Arthur was not saying merely because the instances of detriment were spread over a series of discrete fixed-term contracts they were incapable of being a series of similar acts or failures.
The EAT determined that the ET should therefore have considered whether and to what extent the University’s various practices and policies, albeit applied across a series of fixed-term contracts, did amount to a series of similar acts or failures such that Dr Ibarz’s complaints in respect of earlier semesters could be considered.
The EAT consequently referred the matter back to the ET to consider whether Dr Ibarz’s other claims of detriment were part of a series of similar acts or failures and had been presented in time.
Comments
This case is potentially important for any employers who regularly appoint workers on fixed term and/or part-time contracts. First, it provides a timely reminder that fixed-term and part-time workers should not be treated less favourably than permanent or full-time workers respectively; and second, it is possible that detriments occurring under discrete and separate contracts (even where there are breaks in between the contracts) can amount to a series of similar acts or failures and thus bring older, potentially out of time complaints, within the jurisdiction of the ET.
Click here to view our newsbrief in full.
Continue reading other articles: When are statutory collective consultation provisions triggered? Agency worker rights clarification, Update on the fees regime: How far will the Government go? Who is an appropriate companion at an investigatory meeting? It’s not always black and [Mr] White – TUPE Update, In a nutshell…