FTD064

• “In order for the Board to continue its association with the Mater/UCD training scheme, it is essential that the training posts are available to Non-Consultant Doctors. To issue a Non-Consultant Hospital Doctor participating on an approved training scheme with a contract of indefinite duration would prevent the Board from fulfilling a legitimate organisational objective”.

Position of the parties.

The Claimant’s case.

The Claimant submitted that he entered into a contract of employment with the Respondent to provide services as a qualified Doctor. He said that his participation in post-graduate medical education was part of his continuing professional development. In that respect the Claimant contends that his position was no different to that of a Doctor permanently employed in the health service. The Claimant contends that he became entitled under the Act to a contract of indefinite in July 2003. The Claimant also claims that the Respondent contravened Section 8 of the Act in failing to inform him in writing of the objective grounds relied upon for renewing his fixed-term contract and the failure to offer him a contract of indefinite duration.

The Respondent’s case.

While a number of matters were raised in the notice of appeal the Respondent confined its challenge to the Rights Commissioner’s Decision to an assertion that she erred in holding that the renewal of the Claimant’s fixed-term contract on 1st July was not justified on objective grounds. The Respondent contended before the Rights Commissioner and equally contended before this Court that the nature of the post held by the Claimant as a training post justified his continued employment on fixed term contracts. Specifically, the Respondent submitted that it is essential that hospitals have dedicated training posts available and that NCHDs rotate through those posts. According to the Respondent to continue NCHDs in training posts indefinitely would block other Doctors from having the opportunity to avail of higher specialist training. It submitted that a feature of the scheme on which the Claimant was placed is that once a Doctor has completed 3½ years on the scheme their tenure expires and another doctor is recruited to rotate through the scheme.

The Respondent accepted that it did not inform the Claimant in writing of the objective grounds relied upon as justification for the renewal of his fixed-term contract and the failure to offer him a contract of indefinite duration. It claims, however, that the Claimant was fully aware that his post was temporary and wasfor the purpose of providing him with training opportunities.

The law applicable.

The Act transposed into Irish law Council Directive 1999/70/EC of 28th June 1999 concerning the Framework Agreement on Fixed-Term Work concluded by ETUC, UNICE and CEEP. Clause 5 of the Framework Agreement provides as follows: -


Measures to prevent abuse (clause 5)

• To prevent abuse arising from the use of successive fixed-term employment contracts or relationships Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
  
  

• 2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
  

• “(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
  

• 
  (2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
  
  (4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—
  

• • 
    (b) that a written statement is evasive or equivocal,
  
  the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.”

• (1) 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.
  
  (2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes ofsection 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.

Conclusion of the Court

The Respondent’s case is largely predicated on the proposition that the Claimant was engaged on a training scheme. The contract between the Claimant and the Respondent was set out in writing and was signed by the parties. It is plainly a contract whereby the Claimant undertook to provide his skill as a qualified Doctor in the treatment of patients. While the work which he performed under the contract may have enabled him to develop his clinical knowledge and skill so as to attain further qualifications this did not, in theCourts view, mean that his contract was other than a normal contract of employment. Under that contract the predominant benefit which the Respondent derived was the professional clinical services of the Claimant in the treatment of patents under the Respondent’s care. It could not, therefore, be described as a Contract for Training as that term is normally understood.

The Act became law on 14th July, 2003. At that time the aggregate duration of the Claimant’s fixed-term contracts exceeded three years. Thus the Respondent was entitled to renew the contract once but only once and for a period not exceeding one year. The Respondent renewed the Claimant’s contract on 1st January, 2004, for a period of six months. On the expiry of that contract on 30th June, 2004 it, was further renewed up to 31st December, 2004. Unless this second renewal can be saved by Section 9(4) it contravened Section 9(1) of the Act. In that event the term of the contract which provided for its termination on 31st December, 2004, was voidab initioand the resulting contract became one of indefinite duration. The Claimant would thus have become an employee of the Respondent on a contract of indefinite duration by operation of law on 1st July, 2004.

The Claimant was not provided with a written statement in the terms required by Section 8(2) of the Act at the time of the renewal of his fixed term contract on 1st January, 2004, nor on its further renewal on 1st July, 2004. This is a mandatory provision and it is no defence for the Respondent to say that the Claimant should have been aware of what such a statement would have contained had it been furnished. In that regard the Rights Commissioner was clearly correct in holding that the Respondent had contravened Section 8.

It is also apparent from the evidence before the Court that at the time the Claimant'sfixed-term contract was again renewed on 1st July, 2004, the Respondent had not formulated its position in relation to the Claimant’s continued employment. The Respondent was put on notice in April, 2004, that the Claimant considered himself entitled to a contract of indefinite duration. Yet it was not until 26th August 2004 that the Respondent proffered the reasons now relied upon as constituting objective grounds for the renewal of the Claimant’s contract for a further fixed-term on 1st July, 2004. In these circumstances it would seemfair and equitable for the Court to infer that the Respondent had given no real consideration to offering the Claimant a contract of indefinite duration by the material date (1st July 2004). It seems that the decision to renew the contract for a further fixed-term on that date was made as a matter of course and without advertence to the Claimant’s rights under the Act or to the consequences which flow from a contravention of those rights. This would further imply that the grounds now relied upon (that the Respondent could not retain its association with the Mater / UCD scheme if the Claimant was given a contract of indefinite duration) were not in the active contemplation of the Respondent at the material time. If that was the case the grounds now relied upon could not have been the operative reason for the renewal in the sense that there was a direct causal link between the decision to renew the contract for a fixed term and the concerns subsequently expressed. On this construction of events the Claimant would have received a contract of indefinite duration by default on 1st July, 2004, and that could not have been undone by the later decision which crystallised on or about 26th August, 2004.

Nevertheless, the Court must consider if the grounds relied upon by the Respondent constitute objective grounds within the meaning of Section 7 of the Act. Essentially the Respondent contends that the Claimant post was a training post which he could not hold on a permanent basis. It contends that he would have to vacate the post and make way for others when the training purpose of the post was fulfilled.

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. This test requires that the court be satisfied that the reasons relied upon

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  (a) correspond to a legitimate objective of the employer
  
  (b) are appropriate with a view to achieving the objective pursued, and
  
  (c) are necessary to that end.
  

• Legitimate Objective of the Employer
  
  In Bilka, the Court of Justice pointed out that what is required here is that the employer demonstrates that the objective being pursued corresponds to a real need on the part of the undertaking.
  
  If the Respondent wishes to reserve certain post for Doctors wishing to enhance their skills and qualifications, that could be regarded as corresponding with a legitimate need of the Respondent and could accordingly be regarded as a legitimate objective.
  
  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. In Case C-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).
      
    The means chosen in the instant case was to place the Claimant on a succession of six-month contracts. He had no security of tenure beyond the six months duration of each successive contract. Even if the objective of the Respondent was to rotate the post amongst other NCHD’s the use of successive short-term contracts could not be regarded as a proportionate and appropriate means of achieving that objective. Such a practice constitutes an abuse of the use of fixed-term contracts which is the mischief which clause 5 of the Directive, and consequently Sections 8 and 9 of the Act, were intended to prevent. Moreover it is difficult to see how a succession of six-month contracts could be an appropriate means of providing opportunities to undertake a course of study and training which lasts on average 3½ years.
    

• • 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. If the Respondent wishes to provide training posts it could do so by providing training contracts for the duration of the course of study or until a particular result was achieved. In that regard what the Act proscribes is thesuccessiveuse offixed-term contracts.
    
    There is no evidence before the Court by which it could conclude that there are no means by which the provision of training places for NCHDs could be provided other than by the use of successive short-term contracts beyond the duration permitted by Section 9(1) and (2) of the Act. It is patently necessary for the Respondent to review its practices and procedures in respect of the use of fixed-term contracts and to consider means by which its legitimate objectives can be pursued in a way that avoids the abuse of successive fixed-term contracts. It appears clear on the evidence that no such consideration had been given at the time material to this complaint. Moreover, it could not be seriously contended that granting the Claimant a contract of indefinite duration in circumstances where he met the criterion prescribed at Section 9(1) of the Act would prevent the future training of other NCHDs.