FTD1017

6.—(1) Subject toSubsections (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.

(2) If treating a fixed-term Employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent Employee can be justified on objective grounds then that Employee may, notwithstandingSubsection (1), be so treated…….

(4) For the avoidance of doubt, the reference in this Section to a comparable permanent Employee is a reference to such an Employee either of the opposite sex to the fixed-term Employee concerned or of the same sex as him or her………

(6) The extent to which any condition of employment referred to inSubsection (7)is provided to a fixed-term Employee for the purpose of complying withSubsection (1)shall be related to the proportion which the normal hours of work of that Employee bears to the normal hours of work of the comparable permanent Employee concerned.

(7) The condition of employment mentioned inSubsection (6)is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an Employee.

(8) For the avoidance of doubt, neither this Section nor any other provision of this Act affects the operation of Part III ofthe Organisation of Working Time Act 1997.

Section 7 of the Act deals with the objective grounds specified in Section 6 (2).

7.—(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.

Section 12 of the Act renders void any section of any agreement or contract of employment that purports to limit or exclude the application of this Act.

12.—Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act.

Position of the Parties

The Respondent’s Position

The HSE argues that the relief nature of the Complainants' contracts of employment was not related to their fixed-term status but rather was due to the nature of the needs of the service. The HSE requires Employees to provide locum cover for whole-time colleagues, both permanent and fixed-term, whilst on leave from their employment. The eight Claimants were employed by the Midland Regional Hospital in Tullamore to “fill in” for other staff nurses when absent due to annual leave, sick leave, parental leave and other exigencies that arose over the two-year period of their employment. The nature of their employment was outlined to the Complainants at the commencement of their contracts.

The HSE submitted that Employees who are employed in a relief capacity work under “if and when required” contracts of employment. Due to the uncertainty of when service exigencies will arise “if and when required” employment contracts do not specify hours of work. Instead the nature of the contracts is such that they guarantee access to any relief work that becomes available on an “if and when required” basis. However, the contracts contain all of the other standard elements of an employment contract such as matters relating to pay, reporting relationships, termination, confidentiality clauses, etc.

The contracts are constructed in such a way that locum relief staff can (and do) refuse work that is offered to them and can make a decision on each individual occasion as to whether or not they will accept the work that has been offered to them. Where Employees turn down offers of work they retain the entitlement to be called again when the next vacancy arises.

In mid-2007 the HSE Midlands Area decided to form a temporary relief nursing panel to ensure that adequate cover was available to the three Midland Hospitals in Tullamore, Mullingar and Portlaoise. Candidates were selected from the nursing degree graduates from the Athlone Institute of Technology, which included the eight Complainants. Most had completed various work placement assignments in the Midland Regional Hospitals and had proven themselves to be of a high standard. They were offered and accepted “if and when required” contracts of employment.

The HSE submitted that it has not treated the Complainants less favourably, within the statutory meaning of that term, than a permanent Employee on the basis that it has not offered guaranteed hours of employment to them. It submitted that the fact that they were offered relief work is not related to their fixed-term status but due to a genuine need of the Employer to have relief Workers available to it on an ongoing basis to ensure adequate levels of service to its patients and clients.

It further submitted in support of its position that there are many staff nurses employed on a fixed-term basis and work a predetermined number of hours per week who do not have an entitlement to refuse work unlike their "if and when required" colleagues. Similarly, permanent staff nurses have predetermined working hours (both full-time and part-time) and are not entitled to refuse work. Consequently it submitted that the fact that working hours are not predetermined in the Complainants' “if and when required” contracts of employment is not related to their fixed-term status but due to the inability of the HSE to accurately and specifically determine when relief exigencies will arise.

The HSE referred the Court to the Decision inMorrin, Schneeberger and Whelan v Brothers of Charity [FTD104, FTD105, FTD106].The Court was also referred to theWhippel case [2004/C300/21]in which the European Court of Justice acknowledged that relationships of this nature (which the ECJ described as “work-on-demand” contracts) can amount to contracts of employment for the purposes of, inter alia, the Part-Time Workers Directive (Directive 97/81/EC).

The HSE submitted that the Labour Court inFTD 104had found that“contracts which do not fix working hours of the employees are valid…”

They further submitted that the ECJ held in the Whippel case:-

that “ a contract of part-time employment according to need which makes provision for neither the length of weekly working time nor the organisation of working time does not result in less favourable treatment within the meaning of Clause 4 of the Framework Agreement”.

The HSE submitted that the provisions of Clause 4 (which deals with equal treatment) in the Council Directive 97/81/EC of 15 December 1977 concerning the Framework Agreement on part-time work are similar to clause 4 in Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work. On that basis the HSE submitted that the rationale adopted by the ECJ in the Whippel case should be applied to the claim before the Court and it should find that issuing the Complainants with “if and when required” contracts which do not specify weekly working hours does not constitute unequal treatment within the meaning of Section 6(1) of the Act.

The HSE went on to submit, without prejudice to the foregoing submissions, that objective grounds exists for the use of “if and when required” contracts of employment.

1. Health Service Employers must be able to operate at optimum levels at all times. Under their terms of employment all staff are entitled to take leave from work for various reasons some of which can be anticipated, some of which cannot. Accordingly it is “ vital for health service Employers to have a panel of relief Employees available to them to ensure that cover can be provided for the duration of these exigencies.”

2. The provision of health services is labour-intensive. Without relief panels Employers would not be able to fill short-term absences of other permanent and fixed-term Employees and the quality of the service provided would immediately suffer. Therefore having relief panels fulfils a genuine need and objective of the HSE.

3. Due to the uncertainty of when demand for relief Workers will arise it is important that the flexibility inherent in the “if and when required” contracts is available to both sides. Employers must be free to offer employment to Employees when the need arises and Employees must be free to either accept or reject such offers because of the unpredictability of the timing of such offers of work.

4. Having relief panels ensures that Employers can provide continuous and quality care to patients and is the only way open to Employers to unsure short-term exigencies can be covered in the event of Employee absences.

Accordingly, the Respondent submits that the Complainants were not treated less favourably than permanent Employees on the basis that their “if and when required” contracts do not have predetermined weekly working hours and relied on the findings of the ECJ in Whippel v Peek and Cloppenburg in support of its argument. Furthermore, the Respondent submits that there are objective grounds for the difference in treatment of the Complainants.

The Complainants' Position

The INMO on behalf of the Complainants submitted that the HSE had contravened Section 6 of the Act when it issued the them with fixed-term contracts which have no specified minimum guaranteed hours thereby treating them less favourably than their comparable permanent Employees that have guaranteed specified hours in their contracts of employment.

The INMO submitted that this discriminatory treatment is based solely on the fixed-term status of the Complainants and that there is no objective justification for such unfavourable treatment.

Both parties are largely in agreement regarding the nature of the contracts issued to the Complainants. However, the INMO submitted that at the time the Complainants signed their contracts of employment the “if and when required” nature of the contracts was not explained to them by HSE management. To the contrary, the INMO submitted that the Assistant Director of Nursing at the time informed the Complainants that they would be employed on a full time (39-hour week) basis for a fixed term of two years. It was submitted that both parties to the contract, therefore understood that they were employed under a two year fixed-term contract and on a full time basis. The Complainants worked on a full-time basis from the commencement of their employment until week commencing 17th September 2007 when they were informed that, until further notice, their services would no longer be required.

The INMO submitted that this decision was taken consequent upon a Directive issued by the HSE on September 4th 2007 which was driven by budgetary constraints and was unrelated to the staffing needs of the hospitals.

The INMO submitted that Workers on fixed-term contracts were being treated less favourably than permanent Employees contrary to Section 6 of the Act. They also submitted that any provision in a contract that purported to exclude or limit the application of, or is inconsistent with, any provision of the Act is void and consequently the “if and when required” clause in their employment contract was of no effect. The Court’s attention was drawn to the EAT Determination in the case ofThornton v Galway-Mayo IT [RP666/2003]in this regard.

The INMO further submitted that the “if and when required" contracts of employment were less favourable than the guaranteed hours contracts that all permanent Employees of the HSE enjoyed.

The INMO submitted that the Complainants were employed to meet staffing needs in the three hospitals. The decision to terminate their employment was based on financial grounds and was not related to the staffing needs of the hospitals concerned. It arose directly out of the Circular issued by the HSE on September 4th 2007 that related to budgetary restrictions and not to patient care or staffing difficulties. None of the permanent Employees had their employment terminated in this manner and accordingly it was submitted that the fixed-term nature of the employment of the Complainants was the only reason they were less favourably treated than their permanent comparators.

Findings of the Court:-

The INMO and the HSE each raise two points for consideration by the Court. The INMO submits that the HSE represented to the eight named Employees that they were being offered two-year fixed-term wholetime contracts of employment in order to enable them to gain some postgraduate nursing experience. If the Court upholds that view than the Court is asked to determine if the decision to terminate their employment before the expiry of the two years is contrary to the provisions of Section 6 (1) of the Act. If the Court rejects this argument then the INMO submits that “if and when required” contracts of employment that do not contain a guaranteed minimum number of hours work each week are contrary to the provisions of Section 6 of the Act and asks the Court to find accordingly.

The HSE submits that the eight named nurses were offered and accepted “if and when required” contracts of employment and were not offered two-year wholetime fixed-term contracts of employment. It further submits that "if and when required" contracts of employment are consistent with the Act and the Directive and should be upheld by this Court in this case. Finally, the HSE submits that the employment offered was contingent on the occurrence of a vacancy arising out of the contingent needs of the hospitals. It submits that it was entitled to match the employment to the contingencies and to terminate the Complainants’ employment when the contingencies ceased to exist.

Having considered the information presented to it by both sides in this case the Court is satisfied that the HSE offered eight named nurses two year fixed-term contracts of employment to enable them gain some post-graduate experience by providing cover for various contingencies within various hospitals in the Midland area. The HSE in the course of the hearing of the case confirmed as much to the Court. Furthermore, the Assistant Director of Nursing assured the Complainants when explaining the contract of employment that they would be employed for two years, on a whole-time basis primarily to provide cover for various contingencies that arise from time to time within the hospital system. Accordingly, the alleged “if and when required”clause of the contracts of employment had no reality for the Complainants.

The Court, therefore, finds that each of the Complainants was employed on a two-year full-time fixed-term contract of employment

Shortly after taking up work the HSE, pursuant to an Employment Control Circular, prematurely terminated the contracts. The only question then for this Court to consider is whether the early termination of those contracts constituted less favourable treatment within the meaning of Section 6 (1) of the Act.

The essential point at issue ultimately relates to the security of tenure inherent in the respective contracts of the Complainants and the comparator. Put simply, the comparators are permanent whole-time Employees whereas the Claimants are not. Accordingly the employment pattern of the comparator provides for consistent wholetime work on terms and conditions agreed between the parties. The Complainants had similar terms and conditions of employment but did not have similar tenure.

Accordingly, the point in issue turns on whether or not tenure is to be regarded as a condition of employment within the meaning of Section 6(1) of the Act. That is a question that was finally settled by a Decision of the High Court in Minister for Finance v Una McArdle [2—7] 18 ELR 165.

That case involved an appeal on a point of law from a Determination from this Court. This Court had held, inter alia, that the Claimant was entitled to the same conditions as to tenure in the contract of indefinite duration which she acquired by operation of Section 9(3) of the Act of 2003 as that contained in the contract of her comparator. In reversing this Court's Decision on that point, Laffoy J held as follows: -

• "Where the Labour Court fell into error in adopting the Rights Commissioner’s formulation of the defendant’s entitlement to security of tenure was in accepting the underlying assumption of that formulation that the defendant’s condition as to duration or tenure of her employment must not be less favourable than that of her chosen comparator. That underlying assumption seems to be predicated on the requirement of Section 6(1). However, Section 6(1) only outlaws discrimination in relation to the fixed-term employee’s “conditions of employment” as defined, which, as the Labour Court correctly recognised when dealing with the issue of the appropriate comparator in the context of Section 6, does not cover the duration of the contract".