Department for Work and Pensions v Webley

A lawful fixed-term contract may end by effluxion of time. That expiry, and the resulting dismissal, do not of themselves amount to less favourable treatment or a detriment under regulation 3(1)(b) when compared with a permanent employee. A claim based only on refusal or failure to renew or extend the contract beyond its agreed term therefore fails. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 preserve the distinction between fixed-term and permanent work. They address discriminatory treatment and abuse through successive contracts, but do not require conversion to permanent employment. A maximum 51-week policy for temporary civil-service appointments was lawful and was not abusive on the facts considered.

Atasha Webley was employed by the Department for Work and Pensions under successive short fixed-term contracts. Her final appointment ended after 51 weeks, although the Department continued to need temporary staff. She complained that the refusal to extend or renew her contract treated her less favourably than comparable permanent employees and subjected her to a detriment under regulation 3 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

The Employment Tribunal dismissed the claim on a preliminary issue. The Employment Appeal Tribunal allowed her appeal, set aside that decision and directed a merits hearing. The Court of Appeal considered whether expiry or non-renewal of the fixed-term contract, as the only alleged act, was capable of constituting less favourable treatment under regulation 3(1)(b).

Appeal allowed. The order of the Employment Appeal Tribunal was set aside, the originating application was dismissed, costs were awarded to the appellant subject to detailed assessment, and permission to appeal to the House of Lords was refused.

1. The Court of Appeal, in the unanimous judgment of Wall LJ agreed by Jacob and Ward LJJ, held that fixed-term contracts are lawful and recognised by Council Directive 99/70. The Regulations implement two objectives: protection against less favourable treatment during fixed-term employment and prevention of abuse through successive fixed-term contracts. They do not abolish the distinction between fixed-term and permanent work or require conversion of a fixed-term contract into a permanent one.

2. Expiry of a lawful fixed-term contract by effluxion of time is an essential feature of that contract. It therefore cannot, of itself, constitute less favourable treatment compared with a permanent employee. The dismissal resulting from that expiry is likewise not, of itself, a detriment under regulation 3(1)(b).

3. Because the only complaint was the Department’s refusal or failure to extend the appointment beyond 51 weeks, the preliminary question, properly understood by reference to the facts of the case, had to be answered no. The Employment Appeal Tribunal had asked an overly broad question by focusing on whether non-renewal was generally capable of amounting to less favourable treatment.

4. The 51-week policy was neither unlawful nor irrational. The Civil Service Order in Council 1995 and the Civil Service Commissioners Recruitment Code provided lawful recruitment routes for short-term and permanent appointments. The policy did not constitute abusive successive employment within regulation 8. The regulation 3(3) questions therefore did not need to be determined.

5. Whiffen v Milham Ford Girls School [2001] ICR 1023 did not assist the respondent because it concerned indirect sex discrimination, not a claim under regulation 3(1)(b). The reference to Preston and others v Wolverhampton Healthcare NHS Trust [2001] 2 AC 415 and [2001] 2 AC 455 merely concerned the possibility that successive intermittent contracts could produce a stable employment relationship and did not affect the result.

6. The court additionally observed that regulation 3(1)(a) concerns ordinary contractual working conditions rather than the duration provision defining a fixed-term contract. That limb was not pursued in the appeal.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1745, allowed the Department’s appeal, set aside the Employment Appeal Tribunal’s order and dismissed the originating application.
• Employment Appeal Tribunal: On 24 March 2004, allowed Mrs Webley’s appeal from the Employment Tribunal, set aside the preliminary decision and directed that the application proceed to a full merits hearing.
• Employment Tribunal, Stratford: In a decision promulgated on 11 November 2003, answered the preliminary issue against Mrs Webley and dismissed her claim.