In An Appeal By University College Union V. The University Of Stirling
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Drummond Young,Lord Brodie |
| Judgment Date | 14 January 2014 |
| Neutral Citation | [2014] CSIH 5 |
| Court | Court of Session |
| Published date | 14 January 2014 |
| Date | 14 January 2014 |
| Docket Number | XA90/12 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 5 | |
| Lord Brodie Lord Bracadale Lord Drummond Young | XA90/12 OPINION OF LORD BRODIE in an appeal to the Court of Session under Section 37(1) of the Employment Tribunals Act 1996 against a decision of the Employment Appeal Tribunal which was intimated to parties on 13 February 2012 by UNIVERSITY COLLEGE UNION Applicant and Appellant; against THE UNIVERSITY OF STIRLING Respondents: _______________ |
Alt: Napier QC; Anderson Strathern LLP
14 January 2014
Introduction
[1] This is an appeal, under section 37(1) of the Employment Tribunals Act 1996, against a decision of the Employment Appeal Tribunal of 13 February 2012 upholding an appeal from the decision from an employment tribunal (constituted by a single employment judge), sitting at Glasgow, registered on 26 November 2010. The appellant before this court and claimant before the employment tribunal is the University College Union ("the appellant"). The respondent is the University of Stirling.
[2] The appeal concerns the incidence of the obligation, imposed by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, in the event of an employer proposing to dismiss as redundant 20 or more employees at an establishment, requiring the employer to consult about the dismissal with the appropriate representatives of the employees.
[3] Following a pre-hearing review, the employment tribunal concluded in respect of three out of four employees employed under contracts limited by time or by reference to a specific event (fixed-term contracts or "FTCs") who had been selected as test cases, that the discharge of their contracts by the effluxion of time, while amounting to dismissals did not amount to dismissals "for a reason related to the individual concerned" and accordingly were dismissals as redundant for the purpose of section 188 of the 1992 Act with the result that there had been an obligation to consult with the appellant (which had not been obtempered). By the time of the hearing before the Appeal Tribunal parties had agreed that in fact all four of the selected employees had been dismissed and the Appeal Tribunal proceeded on that basis. However, it found that a reason for the dismissals did indeed relate to the individuals concerned and the Appeal Tribunal therefore concluded that, having regard to the terms of section 195 of the 1992 Act, the dismissals were excluded from the ambit of section 188.
Applicable legislative provisions
[4] Council Directive 98/59/EC (the "Collective Redundancy Directive") provides:
"Article 1
1. For the purposes of this Directive:
(a) 'collective redundancies' means dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is:
(i) either, over a period of 30 days:
- at least 10 in establishments normally employing more than 20 and less than 100 workers,
- at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers,
- at least 30 in establishments normally employing 300 workers or more,
(ii) or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question:
(b) 'workers' representatives' means the workers' representatives provided for by the laws or practices of the Member States.
For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations of an employment contract which occur on the employer's initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies.
2. This Directive shall not apply to:
(a) collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts;
(b) workers employed by public administrative bodies or by establishments governed by public law (or, in Member States where this concept is unknown, by equivalent bodies);
(c) the crews of seagoing vessels."
[5] Council Directive 1999/70/EC provides inter alia as follows:
"Article 1
The purpose of the Directive is to put into effect the framework agreement on fixed-term contracts concluded on 18 March 1999 between the general cross-industry organisations (ETUC, UNICE and CEEP) annexed hereto.
Article 2
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 10 July 2001, or shall ensure that, by that date at the latest, management and labour have introduced the necessary measures by agreement, the Member States being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.
...
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.
2. Where appropriate, the principle of pro rata temporis shall apply.
3. The arrangements for the application of this clause shall be defined by the Member States after consultation with the social partners and/or the social partners, having regard to Community law and national law, collective agreements and practice.
4. Period-of service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of service qualifications are justified on objective grounds."
[6] The Trade Union and Labour Relations (Consolidation) Act 1992 provides, inter alia, as follows:
"188 - Duty of employer to consult representatives
(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals
(1A) The consultation shall begin in good time and in any event -
(a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and
(b) otherwise, at least 30 days,
before the first of the dismissals takes effect.
...
(2) The consultation shall include consultation about ways of -
(a) avoiding the dismissals,
(b) reducing the numbers of employees to be dismissed, and
(c) mitigating the consequences of the dismissals,
and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.
...
(4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives -
(a) the reasons for his proposals,
(b) the numbers and description of employees whom it is proposed to dismiss as redundant,
(c) the total number of employees of any such description employed by the employer at the establishment in question,
(d) the proposed method of selecting the employees who may be dismissed,
(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect and,
(f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed.
...
195. - Construction of references to dismissal as redundant etc.
(1) In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related.
(2) For the purposes of any proceedings under this Chapter where an employee is or is proposed to be dismissed it shall be presumed, unless the contrary is proved, that he is or is proposed to be dismissed as redundant.
...
282 Short-term employment
(1) The provisions of Chapter II of Part IV (procedure for handling redundancies) do not apply to employment -
(a) under a contract for a fixed term of three months or less, or
(b) under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,
where the employee has not been continuously employed for a period of more than three months."
[7] The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 provide as follows:
"3. - Less favourable treatment of fixed-term employees
(1) A fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee -
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) Subject to paragraphs (3) and (4), the right conferred by paragraph (1) includes in particular the right of the fixed-term employee in question not to be treated less favourably than the employer treats a comparable permanent employee in relation to -
(a) any period of service qualification relating to any particular condition of service,
(b) the opportunity to receive training, or
(c) the opportunity to secure any permanent position in the establishment.
(3) The right conferred by paragraph (1) applies only if -
(a) the treatment is on the ground that the employee is a fixed-term employee, and
(b) the treatment is not justified...
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