FTD063

FULL RECOMMENDATION

FTC/05/11

DETERMINATIONNO.FTD063

(R-032242-FT-05/JH)

SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

STATE LABORATORY
(REPRESENTED BY THE CHIEF STATE SOLICITORS OFFICE)

- AND -

UNA MC ARDLE
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill

SUBJECT:
1. Appeal against Rights Commissioner's Decision R-032242-FT-05/JH

BACKGROUND:

2. The respondent appealed the Rights Commissioner's recommendation to the Labour Court on the 4th of November, 2005. A Labour Court hearing took place on the 23rd February, 2006. The following is the Court's Determination:

DETERMINATION:

This is an appeal by the State Laboratory (the Respondent) against the decision of a Rights Commissioner in a claim by Una McArdle (the Claimant) under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Claimant contends that the Respondent contravened the Act by providing her with terms and conditions of employment less favourable than those applicable to a comparable permanent employee. It was further alleged that the Respondent failed to provide the Claimant with a contract of indefinite duration in circumstances where she became entitled to such a contract pursuant to Section 9(1) of the Act, and that she was precluded from applying for a permanent vacancy with the Respondent.

The Rights Commissioner held with the Claimant and awarded her compensation in the amount of €14,000 as well as a number of orders directing the Respondent to comply with the Act in relation to the Claimant. The Respondent appealed to this Court.

The facts.

The material facts of the case are not in dispute and can be shortly stated.

The Claimant commenced employment with the Respondent in her capacity as a Laboratory Technician in March, 2000, on a fixed-term contract for one year. The purpose of her employment was to assist in the analysis of samples of drivers suspected to have been under the influence of drugs. Her contract was renewed on an annual basis thereafter.

The Claimant was issued with a further fixed-term contract on 31st May, 2004, which purported to be in respect of the period 22nd March, 2004, until 21st March, 2005. The Respondent accepts that this latter contract did not comply with the requirements of Section 8 of the Act. The Respondent further accepts that the Claimant became entitled to a contract of indefinite duration with effect from 22nd March, 2004. The Rights Commissioner awarded the Claimant compensation in the amount of €4,000 in respect of the contraventions of Section 8 and 9 of the Act. The Respondent did not appeal against this aspect of the Rights Commissioner’s decision.

The Claimant is classified as an unestablished civil servant and was so classified during the currency of her fixed-term contracts. Under the relevant statutory regulations all temporary civil servants are classified as unestablished.

As an unestablished civil servant the Claimant is not afforded the same pension entitlements as established civil servants assigned to the Respondent. Nor is she afforded the same tenure as an established civil servant. Furthermore, by reason of her unestablished status the Claimant did not have access to a career break and was excluded from a promotional competition.

Issues in Dispute.

The gravamen of this case is a claim by the Claimant that she is entitled to the same terms and conditions of employment, including security of tenure, as an established civil servant with whom she is engaged in like work. The Respondent contends that she is entitled to the same conditions of employment as another unestablished civil servant. The Respondent further contends that a contract of indefinite duration means a contract which is determinable on reasonable notice. It is common case that the procedures which must be complied with in order to terminate the employment of an established civil servant are different and more elaborate than those applicable in the case of unestablished civil servants.

There are thus four net issues for determination in this case. Firstly, there is a question as to whether an established civil servant engaged in like work with the Claimant can be relied upon as an appropriate comparator, (as contended by the Claimant) or whether comparison must be confined to an unestablished civil servant (as contended by the Respondent). Secondly, there is a question as to whether tenure, or more accurately the circumstances and process by which the employment relationship can be terminated, can properly be classified as a condition of employment. Thirdly, there is the related question of what is meant by the expression“a contract of indefinite duration”. Finally, the Court must consider if the Respondent contravened the Act in not allowing the Claimant to participate in a competition for a promotional post. All of these questions turn on the true construction of various provisions of the Act.

Submissions in an earlier case

The full range of issues arising in the instant case arose in an earlier case before the Court involving 91 Claimant’s against various Government Departments. The Court has not yet given its determination in that case. Mr Kerr BL and Ms Bolger BL appeared in the earlier case, instructed by the same Solicitors as in the instant case, (as now for the Respondent and the Claimants respectively), when they were lead by Senior Counsel. In formulating this Determination, the Court took full account of the detailed and helpful submissions made in the earlier case as well as those made in the instant case.

Appropriate Comparator.

Section 6(1) prescribes the entitlement of fixed-term employees to equality of working conditions as follows:

“Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”.

The term “comparable permanent employee” is defined by section 5 of the Act. Section 5(1)(a) provides:

the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

Section 5(2) provides:

The following are the conditions mentioned in subsection (1)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical ormental requirements, responsibility and working conditions.

The combined effect of these provisions is that a comparable permanent employee for the purposes of the Act is a permanent employee employed by the same employer as the complainant, who is engaged in like work with the complainant.

(While the termlike workis not used in the Act, the conditions set out at section 5(2) amount to same thing. For ease of reference the term like work is used to describe those conditions).

Section 6(1) of the Act prescribes the entitlement of fixed-term employees to equality of conditions of employment with comparable permanent employees, as follows: -

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

It is for the Claimant to choose his or her comparator provided they meet the statutory criteria. The only test is whether the Claimant and the comparator are engaged in like work. The purpose of a comparator under the various statutes dealing with discrimination is to demonstrate if a higher value is placed on the same or similar work as that performed by the Claimant when it is performed by another employee having a different gender, characteristic, or status, as the case may be. Hence the determinative considerations are the nature of the work being performed by the two and that one is in a protected category and the other is not. This was made clear by the ECJ in C-129/79Macarthys Ltd v SmithIRLR 210, wherein the Court said:

“[T]he decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing equal work within the meaning of Article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the service in question.”.

It was further made clear by O’Sullivan J inWilton v Steel Company of Ireland[1999] ELR 1, that for the purpose of the Anti-Discrimination (Pay) Act 1974 a Claimant is entitled to choose his or her comparator. The following statement appears in the headnote of the report: -

“ The plaintiff was entitled to chose her comparator and, having done so, the equality officer was obliged to make a comparison with that person. Accordingly, if paragraph 5.9 of the recommendation showed that the equality officer had not compared the plaintiff with her comparator, but with an other, then an error of law would have occurred and the matter would have to be sent back to the equality officer. Ainsworth (appellant) v. Glass Cubes and Components Ltd (respondents) [1977] IRLR 74 applied”

WhileMccarthys Ltd v SmithandWilton v Steel Company of Irelandwere concerned with claims for equal pay as between men and women, the underlying principle of comparison between the work of a claimant and a comparator is the same as that enshrined at Section 5 of the Act. The Act and the Employment Equality Acts 1998 to 2004 (and the Anti-Discrimination (Pay) Act 1994) arein pari material(that is their context is similar). Consequently, provisions in the Act of 2003 which are similar to those in the earlier Acts should be similarly construed. As was pointed out by Griffin J. inCronin v Youghal Carpets (Yarns)[1985] IR 312: -

“It is a well established principle to be applied in the consideration of an Act that where a word or expression in an Act has received clear judicial interpretation, then there is a presumption that a subsequent Act which incorporates the same word or expression in a similar context should be construed so that the word or expression is interpreted according to the meaning that has previously been ascribed to it, unless a contrary intention appears.”

It is to be assumed that in enacting Section 5 of the Act the Oireachtas was aware of the construction which had been placed on the similar provisions contained in equality legislation. On the doctrine of parliamentary endorsement it is to be assumed that a similar approach in applying the provision now under consideration was intended.

It is accepted that the Claimant was engaged at all material times in doing the same job as permanent civil servants who are designated as established. Moreover, it is also accepted that there are no other civil servants employed by the Respondent engaged in like work with the Claimant who are designated as unestablished.

It is clear that the Claimant and a number of established civil servants perform the same work under the same or similar conditions and each is interchangeable with the other in relation to the work. Accordingly such persons are comparable permanent employees in relation to the Claimant, within the meaning of Section 5 of the Act. It follows from the plain and ordinary language used in section 6 (1) that, absent any of the defences provided for by subsections (2) and (5), the Claimant is entitled to the same conditions of employment as established civil servants with whom she is engaged in like work. Hence, it follows that the Claimant, as a fixed-term employee was entitled to the same conditions of employment as her nominated comparators who were established civil servants (except, of course, in relation to the duration of her contract).

Conditions of Employment

What is obligated by Section 6 of the Act is that a fixed-term employee be treated no less favourably than a comparable permanent employee, in respect of his or her conditions of employment. This Section is in turn based on Clause 4 of the Framework Agreement annexed to Directive 1999/70, which reads as follows: -

“Principle of non-discrimination (clause 4)
1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.

For the purpose of the Act conditions of employment clearly includes entitlements in respect of pensions. This is expressly provided for at Section 2(1). It follows that the Claimant was, at all material times, entitled to the same pension arrangements as those applicable to an established civil servant who is a comparable permanent employee. In so far as domestic legislation in relation to public service pensions may provide otherwise, Section 6 of the Act, which is based on the law of the European Community, must prevail. This is the clear import of the decision of the ECJ inAmministrazione delle Finanze dello Stato v Simmenthal[1978] ECR629.

The Claimant also asserts an entitlement to the same tenure as an established civil servant. The aspect of the case raises more complex questions.

Tenure.

Section 5 of the Civil Service Regulations Act 1956 provides that every established civil servant shall hold office at the will and pleasure of the Government. Section 6 of that Act provides that an appropriate authority may terminate the employment of an unestablished civil servant. An appropriate authority can be a Minister or a designated official of the relevant Government Department.

While both parties refer to tenure in their submissions to the Court what is at issue in reality is the job security which should be afforded to the Claimant. This is turn relates to such questions as who could terminate her employment and in what circumstances her employment can be brought to an end.

In the case of an established civil servant appointment is normally up to the age of 65, at which time their contract of employment comes to its natural end. While no evidence was adduced on the point it is assumed that the contract of employment of an established civil servant could be terminated earlier for such reasons as misconduct, incapacity etc. It could thus be said that the tenure of an established civil servant is up to the age of 65, but their employment could be terminated during that tenure on certain grounds.

In the case of a civil servant employed on a fixed-term contract, tenure is up to the date on which the contract is expressed to expire, at which point it will come to its natural end by effluxion of time. If the grounds upon which a fixed-term employee’s contract can be terminated during its tenure are a condition of employment they must, in accordance with Section 6 of the Act, be no less favourable than those applicable in the case of a comparable permanent employee. As already stated, in the case of the Claimant a comparable permanent employee is an established civil servant. It was, however, submitted by Counsel for the Respondent that, in relation to a civil servant, tenure is not a condition of employment since both tenure and conditions of employment are dealt with separately in the Civil Service Regulations Act 1956.

The range of issues which can properly be classified as conditions of employment has previously been considered by the Superior Courts. A leading case on this subject is that ofO'Cearbhaill v Bord Telecom �ireann[1994] ELR 54. Here Blayney J. said the following: -

Neither of the parties was able to refer the Court to any case in which the question of what constitute conditions of service was considered. Kenny v An Post [1988] IR 285 and O'Rourke v Talbot (Ireland) Ltd [1984] ILRM 587 were cited but neither of these cases really throws any light on the question so the matter must be approached on first principles. It seems to me that conditions of service are conditions which one would expect to find in a contract of employment between an employer and an employee. Any terms which it would be normal to include in such a contract would be entitled to be so described. And in considering what these terms might be, what has to be borne in mind is the nature of a contract of employment — it is a contract between an employer and a single employee. Each employee has an individual contract, so the conditions of service would have to be appropriate to such a contract.

One would normally expect a contract of employment to contain a term relating to the circumstances in which it may be terminated during its tenure. The Claimant’s contract contains such a term at clauses 5 to 7 inclusive. It provides that the employment may be terminated at any time by either party in accordance with the Minimum Notice and Terms of Employment Acts 1973 to 1991. It further provides that in the event of misconduct the contract may be terminated without notice. Moreover, there is an obligation, under Section 14 of the Unfair Dismissals Act, 1977 (as amended), to give employees a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissal. There can be little doubt that an obligation to use the procedures so specified is implicitly incorporated into the individual contract of employment.Having regard to these considerations and to the dictum of Blayney J inO'Cearbhaill v Bord Telecom �ireann, the Court is fully satisfied that the circumstances in which the Claimant’s fixed-term contract of employment could be terminated during its tenure formed part of her conditions of employment. Consequently those circumstance could not be less favourable than those applicable in the case of an established civil servant.

Contract of Indefinite Duration.

A central issue in this case concerns the meaning that is to be given to the term “a contract of indefinite duration”for the purpose of Section 9 of the Act. The Claimant contends that in her case it means, in effect, that such a contract should have the same tenure as that of her comparator. The Respondent contends that a contract of indefinite duration is a contract which may be terminated on reasonable notice.

The expression“contract of indefinite duration”appears in both the Framework Agreement and the Act. In accordance with Section 2(3) of the Act the expression must be given the same meaning as it has in the Framework Agreement. It is settled in the law of the Community that a word or expression used in Community legislation must, unless some contrary intention appears, be given a uniform meaning by all Member States, which must take account of the purpose of the provision and linguistic differences (see Case C-188/03,Junk v Kuhnel, ECJ, Unreported, 27th January 2005).

In support of its contention that a contract of indefinite duration is terminable on reasonable notice Counsel for the Respondent referred the Court to the leading case ofWalsh v Dublin Health Authority(1964) 98 ILTR 82. The Court was also referred to the decision of the High Court inDooley v Great Southern Hotel[2001] ELR 340 and that inSheehy v Ryanin which the decision inWalshwas followed.

It should be observed that these decisions were concerned with what constitutes a permanent position at common law. They could not be relied upon as a binding precedent in interpreting an expression which must have a uniform Community wide meaning. Nonetheless, in view of the emphasis place on the decision inWalshby Counsel, it should be considered in some detail.

That case concerned a Carpenter who was employed by the Dublin Health Authority in what was described as a permanent and pensionable position. It was proposed to make him redundant and he sought a declaration that he was entitled to a job for life or until pensionable age. Budd J. did not accept that because the job was described as permanent this could, in itself, mean that it was not capable of termination on notice. He said, at page 86-87 of the report:

“The word “permanent” has various shades of meaning. Generally, it means something lasting, as distinct from temporary. In the case of a contract of service, a person may be said in one sense of the word to be “permanently” employed when he is employed for an indefinite period on the regular staff of the employer, as distinct from persons taken on for a temporary or defined period. That does not, necessarily mean that such a person has a contract of employment for life. On the other hand a person may be given “permanent” and pensionable employment in the sense that under his contract he holds his employment for life or for life subject to the right of his employer to dismiss him for misconduct, neglect of duty or unfitness or again it may mean that his employment is to last until he reaches full pensionable age, subject to the rights of the employer just mentioned. As to what is meant, and should be implied as being in the contemplation of the parties, depends upon the true construction of the whole contract viewed in the light of the surrounding circumstances and all relevant matters”

Later, in rejecting the Plaintiffs claim that his contract, by reason of being described as permanent must, as a matter of law, be interpreted as continuing until pensionable age, Budd J. stated at page 95:

I have come to the view that the plaintiff has not sustained his case that his employment as a servant was permanent as being continuous for life or that it lasts until full pensionable age is reached, only subject to interruption for misconduct, neglect or unfitness, either at common law or by reason of the provisions of any of the statutes or regulations he relies on. He has, in my view, only established permanency in the sense that this employment was under the terms of his contract indefinite in duration but subject to dismissal on reasonable notice …. If he is not permanent and pensionable in the sense that he claims of having a contract of employment for life subject only to dismissal for misconduct, neglect or unfitness or until he achieves full pensionable age, but merely employed for an indefinite period, as I have held, it follows that he would be dismissible on reasonable notice. It has not been contended that the length of notice given to him was not reasonable and he is therefore not entitled to the second declaration sought.

From these passages it is clear that Budd J. was not setting down a general principle that every contract of service which is described as permanent, or as being of indefinite duration, must be regarded as terminable at will on reasonable notice. The learned Judge was clearly making the point that a contract so described may indeed be for life or until pensionable age or for life subject to termination for stated reasons. It is a matter of construing the contract as a whole in light of the surrounding circumstances and all relevant matters. There is nothing in eitherDooley v Great Southern HotelorSheehy v Ryanwhich would suggest otherwise. Moreover, the decision of Costello J. (as he then was) inGrehan v North Eastern Health Board[1989] IR 422, indicates that there are circumstances in which a term providing for termination on reasonable notice will not be implied in a contract of service where this is not justified having regard to the terms of the contract as a whole.

Against that background it is necessary to consider the terms which must be implied in a contract of indefinite duration which comes into existence in accordance with Section 9 of the Act. It is, however, first necessary to consider the effect of that Section.

Section 9 provides as follows:

(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

Subsection 3 is of particular significance. That subsection applies to a situation where an employee is given a renewed fixed-term contract in contravention of subsections (1) or (2). In such a case subsection (3) would operate so as to render void,ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law, the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed-term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with Section 6.

In other words, the expression“contract of indefinite duration”should be understood in contradistinction to a contract of definite duration or a fixed term contract. The terms and conditions of a contract of indefinite duration which comes into being by operation of Section 9(3) must therefore be the same as those contained in the fixed-term contract from which it is derived, as modified by Section 6, in all respects other than its fixed duration. Obviously, these terms will vary from one employment to another and every case will be decided mainly on its own facts.

Terms as to Tenure of the Claimant’s Contract of Indefinite Duration.

In the Decision under appeal the Rights Commissioner formulated her understanding of the Claimant’s entitlement as to security of tenure as follows; -

“In the case of the Claimant she is a person who has an expectation that subject to the normal date of retirement in the employment, she will be retained in employment and will not be dismissed without there being any good reason such as misconduct or unfitness for her position, or other compelling or unavoidable circumstance. Any dismissal shall be achieved by the application of the relevant Statute as the case may be by reference to the comparable permanent employee, in this case, an established civil servant.”

Having regard to the principles adopted and set out in this determination, the Rights Commissioner’s formulation is a helpful and concise summation of the Claimant’s current position with which the Court concurs and readily adopts.

Section 10 – Entitlement to apply for a permanent vacancy.

It is accepted that the Respondent refused to allow the Claimant to participate in a competition for a permanent post which it had advertised on 7th October 2004. At that stage the Claimant had become entitled to a contract of indefinite duration by operation of Section 9(3) of the Act. The Respondent contended that her exclusion from the competition was related solely to her status as an unestablished civil servant.

The Claimant’s status as an unestablished civil servant, and in consequence her exclusion from the competition was inextricably linked to her status as a fixed-term worker. At the material time the Respondent’s position was that the Claimant’s status remained unchanged until the outcome of the within appeal. This is clear from the terms of a letter which the Respondent wrote to the Claimant dated 4th November 2004, which is recited in relevant part at page 8 of the Rights Commissioner’s decision as follows: -

“As indicated in the above notice at paragraph eligibility, applications are invited from established (i.e. permanent) officers only. At this time your status remains unestablished pending the outcome of a forthcoming Fixed-Term Working Act 2003 [sic] hearing in the Labour Court”

The Court is satisfied that the basis for the impugned refusal flowed directly from the Claimant’s original status as a fixed-term employee and comes within the scope of Section 10 of the Act.

Section 10(1) of the Act provides as follows: -

(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

The scope of the obligation placed on an employer by this provision was considered by the Court inAer Lingus v A Group of Workers[2005] 16 ELR 261. Here the Court held as follows: -

The court accepts that the wording ofs.10(1)of the Act and clause 6 of the[Framework] Agreement indicates that fixed-term employees have an entitlement to compete for available vacancies within an undertaking. However, the court cannot accept, on a reading of the agreement as a whole, that this is an unqualified and unconditional right admitting of no exceptions and not subject to a defence based on objective justification.

The Respondent accepts that the obligation to inform fixed-term employees of vacancies carries a concomitant obligation to allow fixed-term employees to apply for such vacancies. Counsel for the Respondent contended, however, that the post at issue was a promotional post and was not a vacancy within the meaning of Section 10. Counsel further submitted that the reason for the Claimant’s exclusion was her status as an unestablished civil servant and that this is an objective ground on which the treatment complained of could be justified.

The Court cannot accept either submission. No meaningful distinction can be made in the context of Section 10 of the Act between vacancies at different levels within an employment. All that is required is that the vacancy be in respect of a permanent post. Secondly by a circular letter dated 2nd December 2005, the Department of Finance removed the restriction on unestablished civil servants competing for promotional competitions and did so expressly in order to comply with the Act. If it is accepted, as it clearly is, that there was no justification for this restriction in December 2005, it could not be seriously argued that there was such a justification in October 2004.

In these circumstances the Court concurs with the Rights Commissioner’s conclusion that the Respondent contravened the Act in not allowing the Claimant to compete for the said vacancy.

The Respondent also submitted that the compensation in the amount of €10,000, which the Rights Commissioner awarded to the Claimant, for this contravention of the Act was excessive. The Court is of the view that, having regard to her qualifications and experience the Claimant would have had a good prospect of being appointed to the promotional post had she been allowed to enter the competition. In these circumstances the compensation is just and equitable and the Court does not see any basis upon which it should interfere with the award.

Objective Justification.

In its submissions in the case involving 91 claimants and various Government Departments the State made extensive submissions to the effect that the statutory framework governing the employment of Civil Servants constitutes objective grounds justify any less favourable treatment to which those claimants may have been subjected. Those submissions were adopted by the Respondent in the instant case and have been considered by the Court.

In advancing his argument on this point Counsel laid great emphasis on the difference between established and unestablished posts in the Civil Service. Recruitment to the former category of posts is now governed by the Civil Service Management (Recruitment and Appointments) Act 2004 (the 2004 Act). This, it was pointed out, involves the holding of open competitions run by the Public Appointments Service or license holder in accordance with codes of practice as laid down by the Commission for Public Service Appointments.

It was submitted that under the relevant regulations different conditions apply in respect of such matters as pensions, sick pay, holidays, and eligibility for promotion as between established and unestablished civil servants. It was contended that if fixed-term workers were treated less favourably in respect of their conditions of employment than established civil service it was solely because they were categorised as unestablished and not because they were fixed-term employees.

As the Court has taken the view that a fixed-term employee is entitled to select an established civil servant with whom he or she is engaged in like work as a comparator for the purposes of the Act, the issues arising here could well be academic. If, as the Court has found, fixed-term employees, and those who acquire a contract of indefinite duration under Section 9, are entitled to equality of conditions of employment, including pensions, sick pay and security within tenure, with established civil servants there may well be no meaningful difference between the two categories. Nevertheless, for the sake of completeness, the Court should consider if the legislative framework relied upon by the Respondent could provide objective grounds for treating fixed-term employees in a less favourable manner than comparable permanent employees.

Section 7(1) of the Act deals with what constitutes objective grounds justifying less favourable treatment. It provides:

A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

It should first be noted that this provision precludes reliance on the status of the employee as a fixed-term worker as providing objective grounds for less favourable treatment. It was acknowledged by the Respondent that all fixed term employees are classified as unestablished, and that the vast majority of permanent employees in clerical or administrative grades are established civil servants. Against that background it would seem that to rely on the unestablished status of a fixed-term employee as justification for less favourable treatment is, in practical reality, a disguised or covert way of relying on their fixed-term status.

It was further suggested that the difference in treatment of which the Claimant complains is derived from the obligation of the employer to adhere to statutory provisions contained in the 1956 and 2004 Acts. It would seem that the doctrine of supremacy of European law would preclude a Member State, as an employer, from relying on a provision of its domestic legislation to offset or supplant the rights of an individual derived from the law of the Community. Moreover, if domestic law is incompatible with the law of the CommunityAmministrazione delle Finanze dello Stato v Simmenthal[1978] ECR629 is authority for the proposition that the National Court or Tribunal must refuse to apply the domestic law so as to afford supremacy to Community law.

In so far as pension benefits are concerned, Section 2 of the Civil Service Regulation Act 1956 provides, in effect, that an established civil servant is one who is entitled to a pension under the Superannuation Acts, 1834 to 1954. It follows that a unestablised civil servant is one who is not so entitled. Thus to rely on the unestablished status of a fixed-term employee to justify his or her exclusion from the benefits of the scheme applicable to established civil servants is a circular and counter-intuitive argument. It could not be logically argued that the exclusion of an unestablished civil servant from the scheme established by the Superannuation Acts 1834 to 1954, is in itself the objective ground on which that exclusion is justified.

It was, however, argued that it is not the Act of 2004 which is relied upon as providing objective grounds for less favourable treatment but rather the objective which that legislation seeks to pursue. That objective, it was submitted, is to ensure openness, objectivity and transparency in the making of public appointments. If the achievement of those objectives is the ground relied upon it may cogently provide some justification in relation to appointments to permanent posts. But it could not be logically advanced as justifying differences in conditions of employment as between fixed-term and comparable permanent employees. Nor could it be relied upon to justify continuing to apply less favourable conditions of employment to former fixed-term employees after their contracts are translated to ones of indefinite duration.

The second limb of Section 7(1) provides that the grounds relied upon must be justified as being for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose. This is a restatement of the three tier test for objective justification in indirect gender discrimination cases formulated by the ECJ in Case 170/84Bilka-Kaulhaus GmbH v Karin Weber von Hartz[1986] ECR 1607, which is also to be found at Section 22(1)(a) of the Employment Equality Acts 1998 and 2004. The various elements of the test were analysed in detail by this Court inInoue v NBK Designs Ltd[2003] 14 ELR 98.

Each element of this test should be considered in turn.

Legitimate Objective of the Employer
If the objective of the employer is to maintain confidence in the system of making public appointments and to appoint the best available person this undoubtedly constitutes a legitimate objective within the meaning of the first part of the test.

Are the Means Chosen Appropriate
This aspect of the test requires that the means chosen be proportionate to the objective which they are intended to achieve. As previously observed the objective relied upon by the Respondent could not be advanced in any way by affording fixed-term workers less favourable conditions of employment than those afforded to comparable permanent employees.

Moreover, in CaseC-476/99Lommers v Minister van Landbouw, Natuurbeheer en Visserij[2002]IRLR 430 paragraph 39,the ECJ pointed out that: -
- “ [A]ccording to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).
In the Court’s view a rigid application on the legislation concerned to justify what is, in effect, an attempt to derogate from the requirements of the Framework Agreement, could not meet the requirements of proportionality (see also the recent decision in Case C-144/04Mangold v Helm[2006] IRLR 143

Are the Means Chosen Necessary to Achieve the Objective being Pursued
The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect, by which the objective in view could have been achieved. Again, affording fixed-term employees less favourable conditions of employment could not be justified as necessary to achieve the objective relied upon. It is for the Respondent to demonstrate by evidence that there were no alternative means available by which the integrity of its recruitment policy could be maintained. The Respondent adduced no such evidence.

For these reasons the Court does not accept that the less favourable treatment to which the Claimant was subjected is justified on objective grounds.

Summary

For all of the reasons set out herein the Court has reached the following conclusions:

1. The Claimant is entitled to rely on an established civil servant with whom she is engaged in like work as a comparator for the purpose of Section 6 of the Act.

2. The Claimant as a fixed-term employee was entitled to the same conditions of employment, including pension entitlements and access to a career break, as a comparable permanent employee who is an established civil servant.

3. The Claimant was entitled to rules and procedures for the termination of her fixed-term contract during the currency of its tenure, not less favourable than those applicable to the termination of the contract of employment of a comparable permanent employee who was an established civil servant.

4. On attaining a contract of indefinite duration the only provision of the Claimant’s contract which was severed was that providing for its termination by effuxion of time. All other provisions relating to her entitlement to the terms and conditions referred to at 2 and 3 above remained unaffected. Consequently the Claimant is now entitled to the same terms and conditions of employment, including tenure and matters ancillary and related thereto, as her nominated comparator who is an established civil servant.

5. The Claimant was subjected to less favourable treatment in being denied the opportunity to participate in a competition for a permanent vacancy.

Determination

The appeal herein is disallowed and the Decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court

Kevin Duffy
4th April, 2006______________________
CONChairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.