Secretary of State for Justice v Betts

Selection for employment in the Civil Service is an appointment for the purposes of section 10(2) of the Constitutional Reform and Governance Act 2010. The requirement of selection on merit through fair and open competition applies to recruitment both to civil-service office and to civil-service employment.

The requirement is mandatory. It cannot be avoided by relying on employment-rights legislation or on a general statutory power to employ. Where there has been no compliance and no statutory exception, the resulting employment contract is ultra vires and ineffective. The individual’s status as a worker, and accrued worker rights, are nevertheless unaffected.

The Secretary of State appealed from a preliminary judgment of the Employment Tribunal, Cardiff, promulgated on 9 March 2016. The Tribunal had found that three sessional teachers engaged by HM Prison Service were employees, but held that their contracts were not rendered illegal by recruitment outside fair and open competition.

The appeal concerned whether “appointment” in the Civil Service Order in Council 1995 and section 10(2) of the Constitutional Reform and Governance Act 2010 included employment, whether any residual power permitted the Secretary of State to employ the claimants, and the legal consequences of non-compliance.

1. Appeal allowed. The Employment Tribunal was wrong to distinguish appointment to civil-service office from employment in the Civil Service.
2. Section 10(2) of the Constitutional Reform and Governance Act 2010 applies to all appointments to the Civil Service. “Appointment” is a neutral term which covers recruitment to a position in the Civil Service. Employment is a subset of appointment. Excluding employment would substantially defeat the public safeguard of impartial recruitment on merit through fair and open competition.
3. Section 191 of the Employment Rights Act 1996 extends specified employment rights to Crown employment. It does not confer a power to appoint or employ persons in the Civil Service, nor does it alter the statutory recruitment requirement.
4. The power in section 3 of the Prison Act 1952 is a statutory management power preserved by section 4(1) of the 2010 Act, but is exercisable subject to section 3 and the recruitment provisions of that Act. It therefore provides no residual power to employ outside fair and open competition.
5. The requirement in section 10(2) is mandatory, not aspirational. Applying the approach in Queen v Secretary of State for the Home Department, ex parte Jeyeanthan [1999] EWCA Civ 3010, there had been no substantial compliance, the non-compliance could not be waived, and the statutory exceptions had not been invoked.
6. The absence of fault by the claimants did not cure the defect. Their contracts of employment were ultra vires and of no effect. Their status as workers, and rights arising from worker contracts, remained unaffected. The appeal was allowed to that extent only.

• Employment Appeal Tribunal: allowed the Secretary of State’s appeal to the extent that the contracts of employment were ultra vires and of no effect.
• Employment Tribunal, Cardiff: found that the claimants were employees but held that their contracts were not void for illegality; reasons promulgated 9 March 2016.