Agency / Fixed Term Workers · Equality Act 2010 · Indirect Discrimination

Indirect Discrimination and Fixed Term Workers

whitehallA few weeks ago I made reference to the preamble of European Council Directive 1999/70/EC on fixed term appointments which states that the “parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers.”

Likewise, the Civil Service Management Code, set out at para 1.2.3 that “Fixed-term appointments are temporary appointments to meet short term needs. Such appointments may be made only where there is a genuine need to employ people for a short period, and must be compliant with the Recruitment Principles.”

However, as is often the nature of things despite such words the reality is less clear-cut. Whereas fixed term appointments were once reserved for specialist roles there has been a definite increase in such appointments at more junior levels of the civil service and for jobs that are indistinguishable from their permanent peers. The UCU in Lancaster University v UCU [2010] UKEAT/0278/10/2710 won an important judgement that required collective consultation when an employers planned not to renew a large number of contracts. However, just when the climate looked a little more rosy for those in more vulnerable employment the government promptly amended the Trade Union and Labour Relations Act 1992 to make clear that the non-renewal of a fixed term appointment no longer counts as a dismissal for the purposes of statutory redundancy consultation thereby pulling back the extra protection the judgement had afforded FTA employees.  And so, the position is now that a fixed term appointee who is dismissed for redundancy reasons when the reason they are dismissed is that they are a fixed term appointee will now find it very hard to argue they have been treated less favourably as a fixed term appointee.

And so now, as we are faced with government desperate to find further staffing ‘efficiencies’ it is not a surprise to find that it is its fixed term appointees who are being targeted for dismissal. Which raises the prospect that such a course of action may itself amount to indirect discrimination if employees identifying with certain protected characteristics are disproportionately affected. It appears there is precedent for this argument.

In Whiffen v Milham Ford Girls’ School & Anor [2001] EWCA Civ 385 a teacher had been on a series of fixed term appointments for five and a half years. The school had to make job cuts and had a policy of letting its fixed term appointees go before considering the redundancy of permanent staff; women were much more likely to be fixed term appointees. In this case which was brought under the then extant Sex Discrimination Act, the Court of Appeal had to consider whether the treatment, which they accepted put female employees at a disadvantage, could be objectively justified. The Court found that the treatment was not objectively justified and that the employer had indirectly discriminated against the claimant on the basis of sex.

I do not see any reason, in principle, why the same situation could not apply here when Civil Service begin their purge of fixed term appointments and reps would be wise to interrogate equality data on who has been affected by planned job losses. It seems to be not only are there sex discrimination possibilities but also potential age discrimination concerns (in my experience many FTA employees are aged 30 or under).

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