Can Less Favourable Treatment extend over several distinct contracts? 

In a recent case decided by the Employment Appeal Tribunal the principle of less favourable treatment of Fixed-Term and Part-Time employees was considered.

The Law

Fixed-Term and Part-Time employees have additional protection from less favourable treatment compared to permanent or full-time employees on the grounds of their status as a Fixed-Term or Part-Time employee. The relevant legislation on this is the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Where an employee alleges less favourable treatment they can pursue a claim in the Employment Tribunal and if successful the Tribunal can order the Employer to pay compensation to the employee; make a declaration as to the rights of the parties and/or recommend that the employer take action to remove or reduce the effect of the detrimental treatment on the employee.

An employee has three months from the date of the less favourable treatment or detriment to make a claim in the Employment Tribunal. Where there is “a series of similar acts” the time limit runs from the last of those acts or omissions.

The time limits are now, of course, extended by the ACAS Early Conciliation Procedure which pauses time.

The Facts

Dr Ibarz was employed by the University of Sheffield, to teach modules in its Spanish and Latin American Studies course at the Institute of Lifelong Learning.

Dr Ibarz had been employed on a series of Fixed-Term contracts and he taught modules from 2004 until the end of the last contract in May 2013. Because of the way the University semesters worked there were periods between semesters when Dr Ibarz was not engaged.

As a result of his working relationship with the University Dr Ibarz employment fell within the terms of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Dr Ibarz alleged that he had been treated less favourably in respect of:
1) Arrangements for holiday pay;
2) Arrangements for incremental pay progression;
3) Regrading;
4) Access to pension;
5) Wages; and
6) A reduction in his hours.

He alleged that this detrimental treatment had been ongoing since the start of his employment in 2004.

At the Employment Tribunal they decided that the claims for detriment prior to his most recent Fixed-Term contract (between February 2013 – May 2013) were out of time.

Dr Ibarz appealed on the basis that the acts complained of were part of a series of similar acts extending over several years.

The Decision

The Employment Appel Tribunal referred to a leading judgement from another case which sets out the position as follows;

“Parliament considered it necessary to make exceptions to the general rule where an act (or failure) in the short three-month period is not an isolated incident or a discrete act. A vulnerable employee may, for understandable reasons, put up with less favourable treatment or detriment for a long time before making a complaint to a tribunal. It is not always reasonable to expect an employee to take his employer to a tribunal at the first opportunity. So an act extending over a period may be treated as a single continuing act and the particular act occurring in the three-month period may be treated as the last day on which the continuing act occurred. There are instances in the authorities on discrimination law of a continuing act in the form of the application over a period of a discriminatory rule, practice scheme or policy.

Behind the appearance of isolated, discrete acts the reality may be a common or connecting factor, the continuing application of which to the employee subjects him to ongoing or repeated acts of discrimination or detriment. If, for example, an employer victimised an employee for making a protected disclosure by directing the pay office to deduct £10 from his weekly pay from then on, the employee’s right to complain to the tribunal would not be limited to the deductions made from his pay in the three months preceding the presentation of his application. The instruction to deduct would extend over the period during which it was in force and the last deduction in the three months would be treated as the date of the act complained of.”

The Employment Appeal Tribunal decided that the Employment Tribunal “had approached this issue on the basis that, because there was a series of separate contracts and no contractual continuity, as a matter of law the application consistently of the same rules, policies and practices across those separate contracts was incapable of being ‘a series of similar acts’ with sufficient linkage so as to make it just and reasonable for them to be treated as in time”. Therefore the approach of the Tribunal was an error of law.

The result of the Employment Tribunal’s error was that they had not considered whether the issues complained of by Dr Ibarz from as far back as 2004 had in fact been a series of similar acts or failures. They had discounted the consideration due to their conclusion that there could be no series of acts where there was a break in the fixed term contracts.

In summary the Appeal Tribunal concluded that a series of acts which took place over discrete contracts could amount to a series of similar acts and therefore could potentially be within the time limit for complaint.

Dr Ibarz appeal was allowed and the case sent back to the Employment Tribunal.

Points to note

The case clarifies the position regarding time limits in these situations where an employee is claiming a series of similar acts over a period of time.

What action do you need to take?

1. Ensure that your policies and procedures provide guidance on equal treatment of staff.
2. Review any benefits or procedures which you provide to ensure fairness.
3. Maintain a culture of equal treatment regardless of status.
4. If you find yourself in this situation or require assistance with a disciplinary or investigation such as this contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email alison@realemeploymentlawadvice.co.uk

Case Name

Ibarz v University of Sheffield – Employment Appeal Tribunal