E Komeng v National Highways Limited

Under regulation 3(2) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, less favourable treatment concerning the opportunity to receive training is itself treatment contrary to regulation 3(1). A separate finding of detriment is unnecessary, subject to objective justification under regulation 3(3). Objective justification may take account of cost, provided the aim is not solely to save costs. It may also take account of the employee’s expected departure shortly after the training, together with other relevant factors. The tribunal nevertheless properly applied the proportionality test and dismissed the complaint as objectively justified and out of time.

The claimant was employed initially on an 18-month fixed-term contract and later became permanent. He complained that the respondent had failed to inform him about an HR Business Partner development course attended by comparable permanent employees. The employment tribunal dismissed his complaints under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, discrimination legislation and unfair dismissal. It found the Regulations complaint out of time and, alternatively, unjustified on its merits.

The claimant appealed on the alleged requirement for a detriment, objective justification, proportionality, time limits and constructive dismissal. The central issues were whether regulation 3(2) required a separate detriment and whether the tribunal’s alternative conclusions were legally sustainable.

1. Appeal dismissed. The tribunal had erred in treating a separate finding of detriment as necessary for the regulation 3(2)(b) complaint, but that error did not affect the outcome.
2. Regulation 3(1) establishes an overarching right not to receive less favourable treatment than a comparable permanent employee. Regulation 3(2) identifies particular forms of less favourable treatment, including treatment concerning the opportunity to receive training. Those forms are inherently within the protection of regulation 3(1). A separate detriment finding is not required.
3. The safeguards in regulation 3(2), including the requirement for a valid comparable permanent employee and treatment on the ground of fixed-term status, prevent an unreasonable extension of the right. Regulation 3(3) remains decisive: the treatment must also be objectively justified.
4. The tribunal’s consideration of detriment was therefore legally unnecessary. Its conclusion that the claimant had not reasonably viewed the failure to inform him about the course as detrimental was nevertheless adequately reasoned and was not perverse. Shamoon v Chief Constable of the RUC [2003] UKHL 11 was consistent with the test applied.
5. The tribunal correctly concluded that the treatment was objectively justified. Following Heskett v Secretary of State for Justice [2020] EWCA Civ 1487, cost may be relevant where the employer’s aim is not solely to save costs. The tribunal considered the wider aim of making a sound investment in employee development and the respondent’s use of public funds.
6. The tribunal was also entitled to take account of the claimant’s lack of expressed interest in the HRBP route, his personal difficulties at the time, and the fact that his fixed-term contract was due to end shortly after the course. de Diego Porras v Ministerio de Defensa [2016] ICR 1184 ECJ did not establish that the expected end of a fixed-term contract could never be relevant; the mere temporary nature of employment was insufficient on its own.
7. The time-limit decision stood. The tribunal’s reasoning, read as a whole, showed that it would have refused an extension even if the complaint had otherwise been meritorious. The unfair-dismissal appeal also failed because the tribunal found no fundamental breach and correctly concluded that the claimant did not resign in response to one. A resignation need only be partly in response to a breach, but the tribunal found that this was not a reason for the resignation.

• Employment Tribunal: dismissed the claimant’s complaints following a hearing in October 2023.
• Employment Appeal Tribunal: dismissed the appeal. The error concerning the separate detriment requirement did not undermine the alternative findings that the complaint was objectively justified and out of time.