Hudson v The Department For Work And Pensions (Fixed Term Regulations : no sub-topic)

Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, regulation 18(1), excludes the Regulations only in relation to an employee who is currently employed on the specified government training or work-experience scheme. It does not prevent an employee whose current fixed-term contract is outside that exclusion from relying, under regulation 8, on earlier continuous fixed-term employment which would itself have fallen within regulation 18.

Exclusions from statutory employment rights should be construed narrowly. An anomalous practical result cannot displace the natural meaning of the instrument read in its legislative and Directive context.

The appellant held a current fixed-term contract with the Department for Work and Pensions. She sought a declaration under regulation 9(5) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 that she had become a permanent employee after four years’ continuous fixed-term employment.

The Employment Judge refused the declaration. He held that earlier service, said to have been under a government scheme, could not count because of regulation 18. He also found that the appellant had been employed under a departmental scheme which fell within regulation 18 and which provided work experience.

On appeal, the central issue was whether regulation 18 barred reliance on earlier excluded fixed-term employment when the employee’s current contract was not itself excluded.

1. Appeal allowed. Regulation 18(1) is concerned with the present circumstances of the fixed-term employee and the contract under which that employee is presently employed. It did not apply to the appellant’s current contract.

2. The wording of regulation 8 permits reliance on a previous fixed-term contract. Nothing in that provision excludes a prior contract that would have fallen within regulation 18. Had that been intended, regulation 8 could readily have said so. Regulation 18, as an exclusion from statutory rights, should be construed narrowly.

3. The Employment Judge erred by treating regulation 18 as a wholesale exclusion which prevented the accrual or use of service under earlier contracts. The possibility that the correct construction might produce an unusual result did not justify departing from the words of the Regulations, read in their statutory and Directive context.

4. The issue was remitted to the Employment Tribunal to determine whether the employer could establish objective justification under regulation 8(2)(b), so as to avoid a declaration under regulation 9(5).

5. Although unnecessary to the disposition, the Tribunal rejected the appellant’s challenges to the Employment Judge’s findings on the remaining issues. The Judge was entitled to identify the actual departmental scheme on which she was employed, notwithstanding the parties’ descriptions of it. Eligibility for a scheme alone would not establish that a person was employed on it. The Judge’s finding that the scheme provided relevant work experience was also open to him on the evidence.

• Employment Appeal Tribunal: Allowed the appeal in [2012] UKEAT 0397_11_0305 and remitted the objective-justification issue to the Employment Tribunal.
• Employment Tribunal: Employment Judge Gaskell refused a regulation 9(5) declaration in a judgment sent to the parties on 7 April 2011.