FIXED-TERM EMPLOYEE

Department for Work and Pensions v Webley: [2004] EWCA Civ 1745

CA: Ward, Wall and Jacob LJJ: 21 December 2004

The applicant began employment as an administrative officer with the respondent employer on a three-month fixed-term contract, further short term contracts followed until she had been employed for just under a year, when her contract was not renewed. The applicant complained, by way of originating application, that in so terminating her contract the employer had discriminated against her as a fixed-term employee by treating her less favourably than a comparable permanent employee, in breach of regulation 3(1) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. An employment tribunal chairman determined as a preliminary issue that the non-renewal of a fixed-term contract was not capable of involving less favourable treatment within regulation 3(1) and dismissed the complaint. The Employment Appeal Tribunal allowed an appeal by the applicant and remitted the complaint to the employment tribunal for a hearing on the merits.

The employers appealed.

The Court of Appeal held:
Since fixed-term contracts were not only lawful but recognised in certain circumstances as responding to the needs of both employers and employees, the termination of such a contract by the effluxion of time could not of itself constitute less favourable treatment by comparison with a permanent employee. Accordingly, the expiry of a fixed-term contract resulting in the dismissal of the fixed-term employee could not fall within regulation 3(1) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and such a dismissal could not be a detriment for the purposes of regulation 3(1)(b).

The appeal was allowed.

Appearances: Elizabeth Slade QC and Clive Lewis (Office of the Solicitor, Department for Work and Pensions) for the employer; John Handy QC and Melanie Tether (Thompsons, Sheffield) for the employee.