Dr K Grisdale v The Chancellors, Masters and Scholars of the University of Oxford: 3311203/2023
JUDGMENT
The Claimant’s employment under a Fixed Term Contract commencing on 1 April 2022 was justified on objective grounds.REASONS
[1]The Claimant seeks a declaration that his Contract should be made permanent pursuant to Regulations 8 and 9 of the Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations 2002. The only issue before the Tribunal is whether the extension to the Claimant’s employment under a Fixed Term Contract commencing on 1 April 2022 was justified on objective grounds.[2]The objective ground relied upon by the Respondent is that the research that the Claimant was appointed to conduct as Post Doctorial Research Assistant, was dependent on time limited externally funded Research Grants and there was no expectation of that work continuing beyond the availability of that Grant funding.[3]The Tribunal must therefore decide whether the Ground amounts to precise and concrete circumstances characterising the employment to which it relates and is capable of justifying the use of successive Fixed Term Contracts and whether such use of a Fixed Term Contract is justified and said to be responding to a genuine need of being appropriate and necessary. Evidence before the Tribunal[4]In this Tribunal we heard evidence from the Claimant through a prepared Witness Statement, together with a Supplementary Witness Statement and there was an additional Witness Statement from Professor J Devriendt although he was not called to give evidence by the Claimant.[5]For the Respondent Professor Thatte and Professor Render, both giving their evidence through prepared Witness Statements.[6]We also had the benefit of a Bundle of documents consisting of some 992 pages, plus three additional emails disclosed on the second day of the Hearing.[7]The Tribunal also had an opening note from Miss Danvers, Counsel for the Respondent, setting out the Law. Statutory Provision[8]Regulation A of the Fixed Term Employees Regulations 2002 states,(1) This Regulation applies where- (a) an employee is employed under a contract purporting to be a fixed term contract, and (b) the contract mentioned in sub-paragraph (a) has previously been renewed, or the employee has previously been employed on a fixed term contract before the start of the contract mentioned in sub-paragraph (a).(2) Where this Regulation applies then, with effect from the date specified in paragraph (3), the provision of the contract mentioned in paragraph (1)(a) that restricts the duration of the contract shall be of no affect, and the employee shall be a permanent employee, if- (a) the employee has been continuously employed under the contract mentioned in paragraph (1)(a) or under that contract taken with the previous fixed term contract, for a period of 4 years or more, and (b) the employment of the employee under a fixed term contract was not justified on objective grounds- (i) where the contract mentioned in paragraph (1)(a) had been renewed at the time when it was last renewed; and (ii) where the contract has not been renewed, at the time when it was entered into.(3) The date referred to in paragraph (2) is whichever is the latter of- (a) the date on which the contract mentioned in paragraph (1)(a) was entered into or last renewed, and (b) the date on which the employee acquired four years’ continuous employment.[9]Regulation 9(1) provides that: (1) An employee who considers they are a permanent employee by virtue of Regulation 8 can request in writing from their employer a written statement confirming their contract is no longer fixed term and is entitled to be provided within 21 days, such a statement or reasons why the contract remains fixed term (and any objective grounds relied on). The statement is admissible as evidence in any proceedings before a Tribunal.[10]Regulation 9(3) provides that: (3) An employee who considers they are a permanent employee can then make an Application to a Tribunal for a declaration to that affect, but only if they have previously requested a statement and are at that time of the Application to a Tribunal employed by the employer.[11]Regulations 9(5) and (6) provide that: It is agreed that both conditions for making an Application are satisfied in these proceedings. Relevant Case Law[12]In the combined cases of Secretary of State for Children, Schools and Families v Fletcher and Duncombe v Secretary of State for Children, Schools and Families [2011] UK SC 14 2011 ICR 495, Baroness Howells reviewed the operation of Regulation 8. She noted that: “The directive was not directed against fixed term contracts as such, with the intention to prevent discrimination and abuse.” (paragraph 9); and “The abuse being to disguise what is effectively an indefinite employment as a series of fixed term contracts thus potentially avoiding the benefits and protections available indefinite employment.” (paragraph 10).[13]She went on to summarise the operation of Regulation 8, “Thus there is no need for objective justification for the current, (that is renewed or successive) contract unless and until the employee has been continuously employed for four years. But once he has, the latest renewal or successive contract has to be justified on objective grounds. Otherwise the contract will automatically be transferred into a contract of indefinite duration. As such it will still of course be terminable by whatever is the contractual notice period on either side. The concept of objective reasons in the direct for the use of successive fixed term contracts should be understood as referring to “precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed term contracts.”[14]It would appear the use of a fixed term contract to be justified on objective grounds under Regulation 8, must:(a) respond to a genuine need;(b) be appropriate for achieving the objective pursued; and(c) be necessary for the purpose. Facts[15]The Claimant has been continuously employed by the Respondent as a Post Doctorial Research Assistant from 18 October 2017 under a series of Fixed Term Contracts which have been exclusively funded by external Research Grants.[16]The Respondent does provide guidance to its members of staff on managing and ending Fixed Term Contracts. The guidance is clear that when entering into a Fixed Term Contract one or more of six specific reasons must be given as to why the Contract is for a fixed term. One of those reasons is that the work on a Research Project is dependent on external Research Grants and therefore there is no expectation that the work will continue beyond the availability of that external funding.[17]It would appear before entering into each Fixed Term Contract, the Claimant and the Respondent considered whether external funds from which the Claimant’s salary was to be paid, were likely to continue following the expiration of the Fixed Term. It would appear on each occasion, there was no reasonable prospect that the external funding would continue. It is for that reason the Respondent was only able to offer the Claimant fixed term.[18]It would appear that each time the Claimant entered into a Fixed Term Contract, the Respondent made it clear that the reason for the fixed term was that the Claimant had been appointed to carry out work which was dependent on external Research Grants and there was no expectation that the work could continue if there was no further external funding.[19]The current Contract which is for the period from 1 April 2022 to 30 March 2025, is funded by an external Research Grant, STFC (Science and Technology Facilities Council). Once this grant comes to an end it would appear further funding is only available to pay the Claimant’s salary if an individual Principal Investigator (PI) who are the main grant holders of the funding from external bodies, is successful in applying for a grant to fund that particular project. It would appear there is no funding available to continue to support the Claimant’s role past 30 March 2025, with no expectation such funding will become available in the future.[20]It is agreed that on 1 March 2023 and 26 April 2023, the Claimant made written requests to the Respondent that he be provided with a written statement confirming he is a permanent employee. The Respondents having considered the Claimant’s request, declined to accept the Claimant was a permanent employee. On both occasions the Respondents set out the objective grounds justifying the use of Fixed Term Contracts. Namely, that the Claimant was appointed to work on a Research Project dependent on external Research Grants for which there was no expectation that the work would continue beyond the external funding.Conclusions
[21]During the course of this Hearing, the Tribunal has been taken through evidence showing that the Claimant’s employment was indeed always funded by the use of external funding, time limited and with no expectation of the Claimant’s role continuing beyond the duration of that grant funding.[22]Therefore, the use of Fixed Term Contracts was in response to a genuine need, namely, to ensure: that the Claimant’s contract equated to Grant funding that had been secured to fund the Claimant’s salary and the associated costs. Further more to ensure that the Department in which the Claimant worked in, Astro Physics, did not exceed the funds available for the Research and the need to retain flexibility to adapt to changing research priorities.[23]In this respect, the Tribunal reminds itself the test is whether there is a genuine need and it is clearly not for the Tribunal to assess whether the need is reasonable. The Tribunal has not therefore undertaken a detailed analysis of the rights and wrongs of how the Respondent organises its finance and uses the funds available to it.[24]The Tribunal also concluded that use of successive contracts was appropriate and reasonably necessary for the specific purpose of responding to the needs identified. One accepts the impact on the Claimant of having a successive Fixed Term Contract may make future financial planning difficult. However, the Respondents could not be expected to employ the Claimant on an indefinite contract in circumstances where the Respondents know there was no funding beyond a certain point. That would lead to the inevitable consequence of redundancy.[25]There is no doubt when one looks at the reality of the situation, that the Respondent’s decision not to make the Claimant a permanent employee is clearly justified on objective grounds meeting the criteria.[26]Therefore the Claimant’s claim fails. Approved by: