Ibarz v University Of Sheffield (Part Time Workers)

A series of separate fixed-term contracts, without continuity of employment between them, does not as a matter of law prevent the consistent application of an employer’s rule, practice, scheme or policy from constituting a series of similar acts or failures. Under Regulation 7(2)(a) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the tribunal must assess substantively whether there is sufficient connection and similarity between the acts. If the final act is in time, earlier acts in that series may also be considered.

The Employment Appeal Tribunal also held that its power to award appeal fees includes fees paid on an appellant’s behalf, including by a trade union.

The claimant taught university modules under successive semester-long, fixed-term contracts from 2004 until May 2013. The Employment Tribunal found that he was an employee during each engagement, but that there was no overarching contract or continuity of employment between semesters. Those findings were not challenged.

He alleged less favourable treatment as a fixed-term and part-time worker in relation to holiday pay, pay progression, grading, pension access, wages and reduced hours. The Tribunal held that complaints relating to the final contract were in time but that all complaints concerning earlier contracts were out of time.

On appeal, the central issue was whether the consistent operation of policies and practices across discrete fixed-term contracts could amount to a series of similar acts or failures for the purposes of Regulation 7(2)(a).

1. Appeal allowed. The Employment Tribunal erred in law by treating the absence of contractual continuity, and the existence of separate fixed-term contracts, as legally excluding a series of similar acts or failures.

2. The two statutory routes are distinct. A less favourable contractual term may be treated as occurring throughout the period for which it operates under Regulation 7(4)(a). Separately, Regulation 7(2)(a) permits a complaint about earlier acts or failures where they form a series of similar acts or failures and the last is in time.

3. Arthur v London Eastern Railway Ltd showed that a connecting rule, practice, scheme or policy may establish an act extending over a period, but its presence does not prevent repeated treatment under separate contracts from also being assessed as a possible series of similar acts. The necessary question is whether the facts disclose sufficient linkage, similarity and connection to justify treating the acts as one timeous series.

4. The Tribunal had never carried out that factual assessment because it considered itself legally barred from doing so. Its ruling that all complaints before the final contract were out of time was quashed and remitted for reconsideration on the correct basis. Further evidence was considered unlikely to be necessary.

5. The appellant was also awarded the appeal issue and hearing fees under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993. The power extends to fees paid by a trade union on an appellant’s behalf. The contrary approach in Goldwater and Others v Sellafield was held to be wrong.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, quashed the Employment Tribunal’s time ruling concerning earlier fixed-term contracts, and remitted that issue.
• Employment Tribunal, Sheffield: Decision sent on 14 August 2014. It found separate periods of employment without continuity, held claims concerning the final contract to be in time, and held earlier claims out of time.