DORSET COUNTY COUNCIL v MR F J OMENACA-LABARTA [2008] UKEAT 0092_08_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0092_08_1310Case No Appeal No. UKEAT/0092/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DORSET COUNTY COUNCILAPPELLANTMR F J OMENACA-LABARTARESPONDENT
Before
His Honour Judge Ansell Professor S R Corby Mrs D M PalmerDate 13 October 2008
[1]APPEARANCES For the Appellant MR P DOUGHTY (of Counsel) Instructed by: Dorset County Council Legal Services County Hall Colliton Park Dorchester Dorset DT1 1XJ For the Respondent The Respondent debarred from defending the Appeal SUMMARY PART TIME WORKERS Fact of part-time employee being on a fixed term contract is a relevant factor of the issue of justification. HIS HONOUR JUDGE ANSELL This is the hearing of an appeal from a decision of a Southampton tribunal chaired by Mr Peters, who at a hearing on 26 July 2007 and in Reasons delivered to the parties on 10 October, rejected the claim brought by Mr Labarta for less favourable treatment under the Fixed Term Employees Prevention of Less Favourable Treatment Regulations 2002 , but made a finding that his rights not to be less favourably treated as a part-time worker were infringed, and also that he was unfairly dismissed.[2]This hearing follows leave being given at a preliminary hearing presided over by Bean J by order dated 24 June. The decision led in due course to a remedies hearing. That remedies hearing was in fact coupled with a review application which was rejected. The remedies hearing, for the reasons that were set out namely that both because future losses had not been laid out, and also because Mr Labarta had failed to attend for interviews at the school, determined that he had not suffered any financial loss and, indeed, awarded the employers a contribution of £500 costs.[3]It may well be that it was that finding which has resulted in Mr Labarta not taking any active interest in this appeal other than some submissions that were filed for the purposes of the preliminary hearing. Indeed, there has been an order made by the deputy registrar of this court on 7 August that by reason of his failure to file an answer to this appeal, he is debarred from taking any further part in these proceedings.[4]Nevertheless, the employers have been anxious to pursue this matter because of the general nature and the importance of the findings that have been made by the ET, which they say can affect their attitude towards part-time temporary staff. They are not anxious obviously for the matter to be reheard in light of the success they achieved in the remedy hearing, but invite us to set aside the tribunal's findings on less favourable treatment for the part-time worker provisions, and also the unfair dismissal, and reverse those two decisions. Background[5]Mr Labarta started off as a supply teacher at the Boddington Middle School from May 2004, but fairly soon thereafter became a full-time employee, albeit on fixed terms. Certainly up to the summer of 2005 he was on full-time fixed term contracts, either teaching ICT, French or both, it seems, always to cover illness-affected permanent employees.[6]However, in August 2005 the situation changed. The relevant employees that had been ill had left the school and he was simply offered an extension to teach ICT on a half-time basis. He wanted to work three days a week and it was agreed that he would work .6 part-time contract. The tribunal expressed it as a fixed-term contract to expire on 31 August 2006, although the agreed facts which were in front of the tribunal make it clear that the post was in fact reviewed on a termly basis.[7]Shortly after this new arrangement had started pupil enrolment dropped and as a result of reduction in revenue, the school had to economise. In February 2006 a Maths/RE teacher left the school. The governors of the school decided to combine Maths and ICT into one full-time post, which would mean to reduce the teaching establishment by a 0.6 post, which of course were the hours that Mr Labarta was teaching. Therefore on 20 April he was informed that his contract was not going to be renewed at the end of August, the reason being given there was no need for cover for the ICT teaching as the school would be recruiting a full-time Maths and ICT teacher.[8]As a result of meetings that thereafter took place, he was given the opportunity to be interviewed first for any vacant posts, which included the new Maths and ICT post and initially also included a .5 French position, although in fact soon afterwards it was decided to merge that with the teacher in the upper school.[9]It is right to say that Mr Labarta was given various opportunities to come in for meetings and interviews during June and July 2006, but he in fact declined them all. He also failed to attend an appeal hearing on 15 August, although he was represented by his union official, Mr Griffiths. Thus, the employment ended on 31 August 2006.[10]The tribunal determined that there was no claim under the fixed-term provisions on the basis that the contract was not being renewed because staffing was up to strength and the fixed-term contract had been for a specific and genuine purpose, which purpose had come to an end.[11]However, when dealing with the part-time provisions, they made a finding of less favourable treatment, determining that his contract had been terminated on the grounds that he was a part-time worker. The school needing to reduce the staffing establishment by .6 which fitted into these hours that he was working, they found that that fitted the claimant and the school looked no further than the claimant to achieve that reduction. They said the same result could have been achieved by terminating the employment of a full-time member of staff and again making the claimant full-time, which was never considered, and it was his part-time status which marked out his contract for termination.[12]Mr Doughty, who appears before us as well as appearing below, had sought to justify the treatment, on the basis that there was a clear distinction with the full-time employees in relation to the fact that the claimant had been recruited without a competitive interview, and all those on permanent contracts, whether full or part-time, had to go through that process; that the ICT post had been combined for good and practical reasons. But primarily his argument to the tribunal was that certainly since August of 2005, Mr Labarta knew that he was effectively involved in a temporary position pending further consideration of the ICT post. That temporary nature of that job could be looked at within the part-time workers provisions as justification, and he argued that the tribunal needed to go no further than take into account the temporary nature of the job as justification.[13]The tribunal, in conclusion, particularly in paragraph 55, sought to distinguish between the part-time status and the fixed-term status, and also sought to reject a number of the areas of justification that Mr Doughty put forward, since they related to events that had happened after April 2006. For example, his failure to attend for consultation and interview meetings. The tribunal argued, correctly in our view, that the justification had to exist at the time the decision was taken not to extend the part-time position.[14]The tribunal, it was argued by Mr Doughty, in their conclusions in paragraph 55, seem to suggest that the fixed-term nature of the part-time position could never be considered as a factor in justification. The tribunal's conclusions here in paragraph 55 as follows:
"The Tribunal is not satisfied that any of the reasons put forward objectively justify the termination of the Claimant's employment. Indeed we have already found that his part-time status (as opposed to his fixed-term status) was not to provide temporary cover and the failure to require the Claimant to go through competitive interview when recruited in 2004 was inextricably tied in to his fixed-term status. Essentially Mr Doughty endeavours to justify the termination on the grounds that the Claimant was the only temporary employee covering for absent staff. This may be true of the Claimant's fixed-term status but not of his part-time status."
The Legislation[15]The legislative background is that the Part-time Workers Prevention of Less Favourable Treatment Regulations came into force on 1 July 2000, and as originally drafted, a part-time worker on a fixed-term contract could not compare himself to a full-time worker on a permanent contract. However, the regulations were modified in 2002 by the Fixed-Term Employees Prevention of Less Favourable Treatment Regulations 2002 . The Part-Time Workers Regulations were thereafter amended to remove the different contract provisions in respect of fixed-term contracts. It therefore became possible for the part-time workers even on fixed term to argue that they had received less favourable treatment, even against full-time permanent employees.[16]Mr Doughty has helpfully provided from the Department of Business website a commentary on the amendment that was put through, and it makes it clear that the fact that the comparison can now take place between part-time fixed term and full-time permanent does not automatically mean that they must be treated the same. Provided that the employer can justify the difference in treatment on objective grounds, the directive goes on thus for the purposes of the part-time workers regulations where a particular worker is contracted to work for a time limited or for an indefinite period may, depending on the facts of the case, be a relevant factor in determining whether less favourable treatment of a part-timer is acceptable.[17]It does seem to us that in paragraph 55 the tribunal may have fallen into the error of failing to take into account the fixed-term nature of the position as one element of justification. It is not clear from the language that the tribunal used how far they took the fixed-term status into account, if at all. To the extent that in principle they seem to have rejected that particular part of the justification, we accept that there was an error in their reasoning.[18]However, Mr Doughty before us seems to go further and suggests that the tribunal were almost bound to take into account the fixed-term nature as the determinative factor in deciding whether or not there had been less favourable treatment of Mr Labarta from the aspect of his part-time status, by simply terminating his contract, and either not considering him for other positions or by failing to put him into a possible pool for consideration of the new position. We do not agree with that broad-brush approach that he seeks to suggest. It seems to us that the tribunal were right and, indeed, this comes through particularly from paragraph 3 of the review application, that the tribunal were mindful for the fact that although his fixed-term position had come to an end, the ICT 0.6 teaching requirement still existed, albeit in the future, in the form of a combined position. This was not a situation which had existed in his previous fixed-term contracts. Admittedly, they were full time but the same argument, it seems to us, could have applied to part time, where he was covering for sick employees who then returned namely, he was doing a job which was going to disappear completely. This job, this position, or rather necessity for a part-time ICT teaching was going to be merged into a new position. It seems to us that the tribunal were clearly mindful of that situation. As a result, his part-time status, his part-time rights were being infringed by the fact that, effectively, his future was not considered by the employers in the form of either being placed into a pool or alternative employment.[19]It does seem to us that the tribunal, on the facts of this case, even taking into account that they may have given insufficient weight to the temporary nature of the position, were still correct in coming to the conclusion that termination had not been justified, and were entitled to form the view that the factors that Mr Doughty put forward did not justify the actions that the employers had taken. Indeed, it does seem to us that in the circumstances in which the work that he was doing had not disappeared completely, but had been merged into another job, that his part-time status was an important factor, separate and apart from the fixed-term nature of the position, and was a factor of which the employers had failed to take proper consideration.[20]In those circumstances, therefore, although we criticise the tribunal in one aspect of their approach, we are satisfied that on the facts of the case, they were in fact correct in coming to the view that they did, on the particular position that this employee faced. We are not laying down general principles that the fixed-term nature of a part-time position will never be a factor; clearly it can be a factor depending on the background circumstances of the job that he was doing. We have given examples in terms of covering for sickness or for a position that no longer existed.[21]We also therefore support the tribunal's findings on unfair dismissal, since it is clear from paragraph 59 that to a greater extent the dismissal was based on the less favourable treatment as a part-time employee, and therefore unlawful.[22]Accordingly, therefore, this appeal is dismissed.