University Of Stirling v University And College Union (Redundancy : Definition)

Whether expiry of a fixed-term contract constitutes dismissal as redundant depends on the reason for dismissal in the particular circumstances. A fixed-term contract lasting more than three months is not automatically within the collective consultation regime. Under section 195 of the Trade Union and Labour Relations (Consolidation) Act 1992, a dismissal falls within section 188 only if none of the employer’s reasons relates to the individual concerned. A reason relates to the individual where it concerns something the employee is or has done. The employee’s agreement to employment for a finite period is such a reason. The regime may nevertheless apply where a fixed-term contract is not renewed because of an employer-related business decision, such as closure or reduction of work.

The University appealed against an Employment Tribunal decision holding that employees whose fixed-term contracts were not renewed had been dismissed as redundant within section 195 of the Trade Union and Labour Relations (Consolidation) Act 1992. The employees included researchers employed subject to external funding and staff engaged for teaching, maternity-cover and sickness-cover work.

The appeal concerned whether expiry of a fixed-term contract, without renewal, was dismissal for a reason not related to the individual concerned, so that the employer’s collective consultation obligations under section 188 applied. The Union cross-appealed in relation to one employee whom the Tribunal had found not to have been dismissed.

1. The appeal was upheld. The cross-appeal was upheld to the extent that it concerned Ms Fife, whom the parties agreed had been dismissed.

2. The Employment Tribunal had wrongly introduced a requirement that the reason must be direct and personal. Section 195 uses clear statutory language. A reason relates to the individual if it concerns something the employee is or has done. This is distinct from an employer-related reason, such as the need to make a business change.

3. The Tribunal also erred in treating earlier legislation, and Natfhe, as establishing that expiry of every fixed-term contract required consultation. The authorities established that the reason for dismissal must be examined on the facts of the particular case.

4. Section 282 did not bring every fixed-term contract exceeding three months within section 188. It meant that section 188 might apply to such contracts, but the decisive question remained the section 195 test.

5. The European Directive assisted as interpretive context, but a Marleasing construction was unnecessary because the domestic legislation went beyond the Directive’s minimum requirements. The Directive’s exclusion of fixed-term contracts ending on their agreed expiry date nevertheless supported distinguishing ordinary planned expiry from employer decisions involving business closure or restriction.

6. On the facts, each employee had entered into a contract accepted to be finite and ending on a specified date or event. That reason relied on the employees’ own contractual arrangements and related to them as individuals. They were therefore not dismissed as redundant within section 195. For completeness, where there are several reasons, section 188 applies only if none of the reasons relates to the individual concerned.

• Employment Appeal Tribunal: upheld the employer’s appeal and held that the four test-case employees were not dismissed as redundant within section 195 of the Trade Union and Labour Relations (Consolidation) Act 1992. The cross-appeal was upheld regarding Ms Fife.
• Employment Tribunal: held that, save for Ms Fife, the employees had been dismissed as redundant within section 195.