Mr C Nicol v Blackfriars Settlement: 2302611/2015
JUDGMENT
The unanimous decision of the Tribunal is that the Claimant’s claim do not succeed and are dismissed.REASONS
[1]Oral the reasons were given at the conclusion of the hearing. These reasons have been given by Tribunal in response to a request by the Claimant.[2]This is a claim for race discrimination and sex discrimination bought by the Claimant against the Respondent. At the start of the hearing, the Respondent asked the Tribunal if it would entertain an application to strike out the Claimant’s claims on the basis that the claim had no reasonable prospect of success. In the discussions following this request, it became apparent that the claim hinged on one factual matter and Mr Brown who was representing the Claimant confirmed that if the Tribunal found against him on that one factual matter, then his whole claim would fail. Therefore, by agreement, the Tribunal heard evidence in relation to the one factual matter, which is set out below.[3]The single issue for the Tribunal had to determine was whether the Respondent was entitled to give Ms Underhill a permanent contract of employment in June 2015 without advertising the position either externally or internally. The Claimant’s claim is that because it was not advertised he was precluded from applying which was direct discrimination and victimisation on the grounds of race and sex. This was the only matter the Tribunal considered.[4]The basic background is not in dispute. The Respondent is a small charity working in the local community. The Claimant was employed as an accountant.[5]Miss Underhill was first employed as a consultant and then under a succession of fixed term contracts from 2012. It is not disputed that that the final extension to the fixed term contract expired. It is also not disputed that Miss Underhill continued to work for the Respondent in the same role that he had been doing for the previous three years and continued to be paid as she had been before.[6]The Tribunal accepts that there was an auditing process which was about to be carried out and the Respondent needed to ensure their employment contracts are all up-to-date and accurate. About the same time Miss Underhill spoke to Mr Beach (who started working for the Respondent on 16 February 2015), explaining that she was currently not working and under any written contract as the fixed term contract in which she had previously been employed had expired without formally being renewed.[7]Mr Beach took advice from the external HR consultants the Respondent uses. Given Miss Underhill’s period of employment with the Respondent (three years), she had qualified for the right not to be unfairly dismissed and therefore to all intents and purposes, was on par with permanent employees who had also accrued this right.[8]The Respondent says that Miss Underhill undertook her duties satisfactorily and that there was no potentially fair reason to terminate her employment. In any event, Ms Underhill was carrying on doing the same role she had done for the previous three years and therefore no vacancy arose to be advertised.[9]The Tribunal’s conclusion is that there no vacancy to advertise. Miss Underhill was the incumbent in that post. There is precedent for this in that Mr Leong, who the Claimant supervised, was also moved from a temporary contract to a permanent contract in the same role without the position being advertised.[10]The Tribunal does not accept the evidence given by Mrs Islam in so far as the evidence is not directly relevant to this situation in that first, the examples she gave of fixed term employees begin appointed as permanent employees by way of a competitive recruitment process were of a large public sector organisation (NHS) which has its own recruitment policies and practices, and second the examples she gave involved staff who were on fixed term contracts, but had worked for less than two years thereby not accruing the right not to be unfairly dismissed.[11]The Tribunal accepts that when a vacancy arises, then, that vacancy should be advertised either externally or internally or both and recruitment process undertaken in accordance with equal opportunities legislation and practice. Mr Brown, has submitted that if an employee can simply get permanent status by the continual renewal of fixed term contracts this could be used by the employer is a ruse to evade their obligations under the equality legislation. However, there is no evidence to suggest that when Miss Underhill was recruited in 2012 that was not part of an competitive process – indeed there is an application form in the bundle which indicates that it was.[12]The Tribunal also take account of its own industrial experience that, particularly in the charitable sector, staff are often taken on a fixed term basis, as there are often question marks about funding in the long time. This does not mean that the recruitment exercise for that fixed term position is not as open, and competitive as any other recruitment exercise for permanent position.[13]There is no evidence that the Respondent is trying to manipulate the situation to evade equal opportunities legislation. Mr Beach has given evidence about a particular set of circumstances (the audit, Ms Underhill’s accrued rights and the need to formalise her working arrangements) and in those circumstances the Tribunal does not accept the Claimant arguments and find that the Respondent acted reasonably in not considering that there was a vacancy that needed to be advertised.[14]Given that the Claimant accepted start of the hearing should Tribunal find that there was no reason for the Respondent to advertise the post that his claim would fall away the Tribunal dismisses the Claimant’s claim.[1]Oral reasons were given at the conclusion of the hearing. These written reasons are given at the request of the Claimant.[2]The Claimant applied for reconsideration of the judgments promulgated on the 2016, dismissing his claims. By the time this reconsideration was heard the Claimant had appealed to the Employment Appeal Tribunal (EAT) which had dismissed his claim as having no reasonable ground for appealing.[3]The Tribunal asked the Claimant to set out in his own words the basis for this reconsideration application. The Claimant told the Tribunal that the EAT rejected his application as it said that the way the matter had been put before the Tribunal meant that there was no choice but to reach the decision reached. The Claimant says that he accepted this. He went on to say that matters came up about the way the matter was presented to the Tribunal which were not examined on the day. The Claimant mentioned Ms Underhill’s suitability for the role and the evidence given by Mr Biggs which he said was false. The Claimant also mentioned other evidence which was not put before the Tribunal and confirmed that this evidence was available at the time of the full merits hearing. The Claimant said he sent this to Mr Brown who was representing him at the time, but Mr Brown did not use it. Case Number: 2302611/15[4]Further, the Claimant said that whilst he knew Mr Brown was representing him, that Mr Brown should have asked for time to take instructions from him but he did not do this and therefore short of arguing with Mr Brown before the Tribunal there was nothing he could do. The Claimant said there was no request for an adjournment.[5]The Respondent submitted that instructions were taken on the morning of the hearing when the Respondent spent time in discussion with Mr Brown about what the claim was as the Respondent was considering an application to strike out. The Respondent’s submission was that Mr Nicol there during this discussion. The Respondent said that in the hearing the Judge asked yes/no questions to Mr Brown to establish if the one issue (whether the Respondent was entitled to give Ms Underhill a permanent position) would be determinative of the case and Mr Brown said it would be. The Respondent agreed this was a sensible approach and the Tribunal then called an adjournment for Mr Brown to take instructions from the Claimant.[6]In considering the Claimant’s application, the Tribunal referred to the notes of evidence taken at the time. They record that the hearing started at 10.30 am and was adjourned at 11 am for Mr Brown to talk to his client and to the Respondent’s representative. The parties returned at 11.25 when Mr Brown confirmed that the single issue would be determinative and it was agreed this is how the hearing would proceed. There was then discussion about who would go first and a further adjournment was given so the Respondent could talk to Mr Brown about what evidence would be given (there were no witness statements for the Claimant’s witnesses) and the parties returned at 11.50 at which time the evidence began. Clearly the Claimant was given several opportunities to talk to Mr Brown and give Mr Brown instructions. His assertion that he did not have this opportunity was incorrect.[7]The Claimant’s application for reconsideration is refused. If there is an issue between the Claimant and Mr Brown, then that is an issue between them. The Tribunal made the decision on the way the case was presented having given opportunity for Mr Nicol to discuss and give instructions to Mr Brown. The other matters raised are not new matters and could have been brought to the Tribunal’s attention at the hearing in July 2016.