THE INDUSTRIAL TRIBUNALS

CASE REF:	826/15

CLAIMANT:			Peter Alfred

RESPONDENT:		Northern Ireland Prison Service 

CASE REF:	961/15

CLAIMANT:			Sabrina Alfred

RESPONDENT:		Department of Justice

DECISION 
The unanimous decision of the tribunal is that the tribunal declares for the purposes of Regulation 9(5) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 that the two claimants are permanent employees.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mrs M-J McReynolds
				Mr E Grant

Appearances:
The claimants, in both cases, were represented by Mr R McKinney, of NIPSA.
The respondents, in both cases, were represented by Mr A Sands, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Background

1.	The claimants have been employed in the Prison Service Training Centre at Millisle (‘Millisle’) on fixed-term contracts which were extended on successive occasions and which have lasted in total for more than four years.  

2.	Millisle is due to close on 31 December 2015.  

3.	The claimants argued that their employment had been made permanent as a result of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (‘the 2002 Regulations’).  

4.	The respondents argued that the contracts of employment had not been made permanent and they relied on the statutory defence of objective justification.  

The hearing

5.	The hearing first took place on 15 October 2015.  

6.	Mr Millard, Deputy Principal in the Personnel Branch of the Northern Ireland Prison Service, and Ms Julie Anderson, Head of Learning & Development in the Prison Service gave evidence on behalf of both respondents.  

7.	At the conclusion of that evidence, the tribunal heard oral submissions from both parties.  

8.	The tribunal directed the parties to:-

		(i)	exchange written submissions;

		(ii)	lodge written submissions in the Office of the Tribunals; and

(iii)	state in writing to each other and the Office of the Tribunals whether additional evidence was required, and if so, the nature of that evidence and who would give that evidence, by 5.00 pm on 29 October 2015.

9.	The hearing was reconvened for 18 November 2015 at 10.00 am to hear any additional evidence that might be called by any party.  If no such additional evidence was to be called, the panel would meet on that date to consider the submissions and the evidence, and to reach a decision.  If any such additional evidence was to be called, and if time permitted, the tribunal would proceed after the conclusion of that evidence to reach a decision.  

10.	The respondents indicated that they intended to call additional evidence from Ms Anderson and Mr Millard.  No additional evidence was called on behalf of the claimants..

11.	After the conclusion of the resumed hearing on 18 November 2015, the tribunal met to consider the evidence, the submissions and to reach this decision.

Statutory provision

12.	Directive 1999/70 attaches and puts into effect a Framework Agreement.  That Framework Agreement provides that the purpose of the Agreement is, firstly, to improve the quality of fixed-term work by considering the application of the principle of non-discrimination; and, secondly, to establish a framework to prevent abuse arising from the use of successive fixed-term contracts or relationships.

	Clause 5 of the Agreement under the heading ‘Measures to prevent abuse’ provides:-

“To prevent abuse arising from the use of successive fixed-term contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the 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 –

-	objective reasons justifying the renewal of such contracts or relationships;

-	the maximum total duration of successive fixed-term employment contracts or relationships;

-	the number of renewals of such contracts or relationships.”

13.	Regulation 8 of the 2002 Regulations provides:-

		“Successive fixed-term contracts

(1)	This regulation applies where – 

(a)	an employee is employed under a contract purporting to be a fixed-term contract; and 

(b)	the contract mentioned in sub-paragraph (a) has previously been renewed, or the employee was employed by the same employer on a fixed-term contract, or on a series of successive fixed-term contracts, before the start of the contract mentioned in sub-paragraph (a). 

(2)	Where this Regulation applies then, with effect from the date specified in paragraph (3), the provision of the contract mentioned in paragraph (1)(a) that restricts the duration of the contract shall be of no effect, and the employee shall be a permanent employee, if – 

(a)	the employee has been continuously employed under the contract mentioned in paragraph 1(a), or under that contract taken with a previous fixed-term contract, for a period of four years or more, and 

(b)	the employment of the employee under a fixed-term contract was not justified on objective grounds – 

(i)	where the contract mentioned in paragraph (1)(a) has been renewed, at the time when it was last renewed; 

(ii)	where that contract has not been renewed, at the time when it was entered into. 

(3)	The date referred to in paragraph (2) is whichever is the later of – 

(a)	the date on which the contract mentioned in paragraph (1)(a) was entered into or last renewed, and 

(b)	the date on which the employee acquired four years' continuous employment. 

(4)	For the purposes of this regulation Chapter III of Part I of the 1996 Order shall apply in determining whether an employee has been continuously employed, and any period of continuous employment falling before the 10th July 2002 shall be disregarded. 

(5)	A collective agreement or a workforce agreement may modify the application of paragraphs (1) to (3) of this Regulation in relation to any employee or specified description of employees, by substituting for either or both of the conditions set out in paragraph (2) one or more different conditions which, in order to prevent abuse arising from the use of successive fixed-term contracts, specify one or more of the following –

(a)	the maximum total period for which the employee or employees of that description may be continuously employed on a fixed-term contract or on a series of successive fixed-term contracts; 

(b)	the maximum number of successive fixed-term contracts and renewals of such contracts under which the employee or employees of that description may be employed; or 

(c)	objective reasons justifying the renewal of fixed-term contracts, or the engagement of the employee or employees of that description under successive fixed-term contracts, 

and those conditions shall have effect in relation to that employee or an employee of that description as if they were contained in paragraphs (2) and (3).”

14.	Regulation 9 of the 2002 Regulations provides:-

		Right to receive written statement of variation

(1)	If an employee who considers that he is to be regarded, by virtue of Regulation 8, as a permanent employee requests in writing from his employer a written statement confirming that the contract is to be so regarded, he is entitled to be provided, within twenty-one days of his request, with either – 

(a)	such a statement, or 

(b)	a statement giving reasons why his contract remains fixed-term. 

(2)	If the reasons stated under paragraph (1)(b) include an assertion that there were objective grounds for the engagement of the employee under a fixed-term contract, or the renewal of such a contract, the statement shall include a statement of those grounds. 

(3)	A written statement under this regulation is admissible as evidence in any proceedings before a court, an industrial tribunal and the Commissioners of Inland Revenue. 

(4)	If it appears to the court or tribunal in any proceedings – 

(a)	that the employer deliberately, and without reasonable excuse, omitted to provide a written statement, or 

(b)	that the written statement is evasive or equivocal, 

it may draw any inference which it considers it just and equitable to draw. 

(5)	An employee who considers that, by virtue of Regulation 8, he is a permanent employee may present an application to an industrial tribunal for a declaration to that effect. 

(6)	No application may be made under paragraph (5) unless – 

(a)	the employee in question has previously requested a statement under paragraph (1) and the employer has either failed to provide a statement or given a statement of reasons under paragraph (1)(b), and 

(b)	at the time the application is made the employee is employed by the employer.”

Case law

15.	The objective justification defence, provided for in the Framework Agreement and in the Regulations, has given rise to a variety of decisions in different jurisdictions and at different levels.

16.	It seems clear that the objective justification defence is precisely that; a defence, and that it should be construed reasonably strictly against the background of a legislative provision providing protection against discrimination or abuse.  

17.	In Mangold  v  Helm [2006] IRLR 143, the European Court of Justice considered a German law which meant that, for a period at least, objective justification was not required for a fixed-term contract where the employee was aged 52 or over when that fixed-term contract began.  The law was intended by Germany to increase employment or employment opportunities among older people.  The Court considered two Directives; firstly, the Directive (1999/70) implementing the Framework Agreement; and, secondly, the Directive (2000/78) implementing a general Framework against discrimination on various grounds including age.  The facts of the particular case involved a lawyer on his first fixed-term contract and therefore the provisions of the first Directive relating to successive first                         fixed-term contract was not relevant.  The only other issue under that Directive was the application of a non-regression obligation relating to the transposition of that Directive.  That technical issue is not applicable here.  The Court focused its attention to the second Directive and on the issue of age discrimination.  It concluded that the law:-

“Ultimately means that workers hired of a fixed-term basis for the first time after turning 50 can thereafter be employed on a fixed-term basis without restrictions until their retirement.”

	It concluded that while the law was intended to increase employment opportunities, it was not a proportionate measure and that it therefore constituted unlawful discrimination on the grounds of age.  On that basis Article 6 of the Directive and the general principle of non-discrimination precluded that national rule.  

18.	The head note states:-

“The German legislation in question introduced a difference of treatment on the grounds directly of age.  Although the purpose of the legislation was plainly to promote the vocational integration of unemployed older workers, which was a legitimate public interest objective, the means used to achieve that objective could not be regarded as appropriate and necessary.

Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as is possible, the requirements of the principle of equal treatment with those of the end pursued.  In the present case, the legislation resulted in a situation in which all workers who reached the age of 52, without distinction, whether or not they were unemployed before the contract was concluded and whatever the duration of any period of unemployment, could lawfully be offered a fixed-term contract of employment which could be renewed an indefinite number of times.  Insofar as the legislation took the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it had not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, was objectively necessary to the attainment of the objective and vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to obtain the objective concerned.”

19.	It is clear that the Mangold decision focused on non-discrimination and the principle of equal treatment.  Nevertheless it dealt with an objective justification defence and that is what is applicable in the case of successive fixed-term contracts raising the potential for permanency.  The definition of objective justification is as relevant to the prevention of ‘abuse’ as it is to the prevention of ‘discrimination’.

20.	In Del Cerro Alonso  v  Osakidetza-Servicio Vasco De Salud [2007] IRLR 911, the European Court of Justice again considered differential treatment of fixed-term workers and the appropriate interpretation and application of an objective justification defence.  It stated:-

“On the contrary, that concept (objective grounds) requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates in the specific context in which it occurs and on the basis of objective and transparent criteria, in order to ensure that the unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”	[Tribunal’s emphasis]

21.	In Kücük  v  Land Nordrhein-Westfalen [2012] IRLR 697, the European Court of Justice considered the case of an employee who had been employed under 13 successive fixed-term contracts for a period of some 11 years.  Those contracts had been to cover a variety of situations including temporary leave, parental leave and special leave granted to other employees who had been employed on indefinite contracts.  The claimant brought proceedings before the German courts contending that her employment relationship was indefinite in nature.  

	The Federal Labour Court referred the following questions to the European Court for a preliminary ruling:-

“(1)	Does Clause 5(1) of the Framework Agreement preclude a national provision, which ... like [the German provision] ... provides that the renewal of fixed-term employment relationships is justified for objective reasons where one employee replaces another, from being interpreted and applied as meaning that there are also objective reasons where there is a permanent need for replacement staff although the need for replacement staff could also be met by the employee concerned being employed for an indefinite duration in order to ensure placements arising from recurring unavailability of staff, whilst allowing the employer to decide or know in each case how it is to respond to a specific loss of staff?

(2)	If the answer to the first question should be in the affirmative, does Clause 5(1) of the Framework Agreement preclude the interpretation and application of a national provision such as [the German provision] as set out in the first question, in the circumstances described in the first question, where the national legislative provides in a national provision ... that a fixed-term employment relationship with a replacement is justified, providing that a social policy objective is pursued with a view to making it easier for employers to grant special leave and for employees to avail themselves thereof, inter alia for the purposes of protection of maternity or parenting?”

22.	The respondent in the present case relied heavily on the Supreme Court decision in Duncombe  v  Secretary of State for Children, Schools and Families [2011] ICR 495.  In that decision the Supreme Court dealt with a highly unusual employment relationship.  The claimant had been employed on a series of fixed-term contracts by the respondent in a particular European School.  That School had been established by the European Commission for the children of its own staff, employed by their institutions in Member States.  The School was administered under European legislation and under a Treaty concluded by the European Communities and the Member States.  There was an international Board of Governors who were required to provide general rules, including staff regulations.  A particular provision of those staff regulations limited the secondment of staff to the European School to a period of not more than nine years.  The claimant sought a declaration that he was a permanent employee after being employed on successive contracts for a period exceeding four years.  The respondent claimed, as objective justification, inter alia, the existence of the nine year rule in the staff regulations adopted pursuant to European legislation.  The Supreme Court in concluding that the claimant was not entitled to such a declaration made the obvious point that the Directive and the Framework Agreement were not aimed at preventing the use of fixed-term contracts per se but were aimed against the abuse of successive fixed-term contracts.  It pointed out that the claimant’s complaint was about the fixed-term nature of the nine year period itself, not about the use of successive fixed-term contracts to make up the nine year period of employment and that the nine year rule was concerned with a period of secondment of teachers and not with the duration of employment.  It concluded, therefore, that there was no inconsistency between the staff regulations and the Directive.

23.	Baroness Hale of Richmond stated at Paragraph 9:-

“It is important to understand that the Fixed-term Directive is not directed against fixed-term contracts as such.  It has two more specific aims, set out in Recital (14) :

‘The signatory parties ... have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and to establish a framework to prevent abuse arising from the use of fixed-term employment contracts or relationships.’.”

	At Paragraph 10 of the judgment she stated:-

“The preamble and general considerations in the Framework Agreement recognise that ‘contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers’ and also that they ‘contribute to the quality of life of the workers concerned and improve performance’.  But they also recognise that                 ‘fixed-term employment contracts respond in certain circumstances, to the needs of both employers and workers’ and that they ‘are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’.  But the substantive provisions of the Framework Agreement do not attempt to define the circumstances in which fixed-term employment is acceptable.  Instead they concentrate on preventing or limiting the abuse of successive fixed-term contracts, the abuse being to disguise what is effectively an indefinite employment as a series of                   fixed-term contracts, thus potentially avoiding the benefits and protections available in indefinite employment.”

24.	She stated at Paragraph 23 of the judgement:-

“The teachers’ complaint is not against the three or four periods comprised in the nine year rule but against the nine year rule itself.  In other words, they are complaining about the fixed-term nature of their employment rather than about the use of successive fixed-term contracts which make it up.  But that is not the target against which either the Fixed-term Directive or the Regulations is aimed.  Had the Secretary of State chosen to offer them all nine year terms and take the risk that the Schools would not have kept them for so long, they would have had no complaint.  Employing people on single fixed-term contracts does not offend against either the Directive or the Regulations.”

25.	She stated at Paragraph 25:-

“It follows that the comprehensive demolition by the Employment Tribunal of the arguments for the nine year rule is nothing to the point.  It is not that which requires to be justified, but the use of the latest fixed-term contract bringing the total period up to nine years.  And that can readily be justified by the existence of the nine year rule.”

26.	She stated at Paragraph 26 that:-

“The Adeneler case [2006] ECR I-6057 is not in point.  That concerns a national rule which provided a general ‘get-out’ from the requirements of the Directive.  It is not a question of whether the Staff Regulations ‘trump’ the Directive.  There is no inconsistency between them.  The Staff Regulations are dealing with the duration of secondment, not with the duration of employment.  In those circumstances it is questionable whether there is any duty of co-operation between the Member States.”

27.	The tribunal concludes that the Duncombe decision has to be viewed against its own unique set of facts and that it would be dangerous and unjustified to seize upon the use of particular words, ie:-

“The abuse being to disguise what is effectively an indefinite employment as a series of fixed-term contracts, thus potentially avoiding the benefits and projections available in indefinite employment;”

as restricting the application of the Directive, the Framework Agreement and the domestic regulations solely to circumstances where an indefinite period of employment can be firmly established.  That cannot be the sole scope of the Directive, the Framework Agreement and the Regulations.  Very few, if any, employers are in a happy position of being able to offer ‘indefinite’ employment.  Everyone’s employment is subject to the vagaries of the order book or of a funding agreement.  No one can truly say that they are guaranteed indefinite employment.  Furthermore, fixed-term contracts, of their nature, are only used where there is some recognition of a lack of absolute permanency.  If the scope of this legislation were to be so restricted as to exclude its application in precisely the circumstances in which fixed-term contracts are generally used, the legislation would be rendered nugatory.  The tribunal therefore cannot accept the interpretation placed upon Duncombe by the respondent.  The scope of the Framework Agreement also has to be properly assessed with the assistance of decisions of the European Court of Justice.  

One of those decisions is the Adeneler decision at [2006] IRLR 716.  As the Supreme Court pointed out in Duncombe, the Adeneler decision was on its own facts and concerned a Greek domestic provision which purported to exempt certain fixed-term contracts from the Directive.  It was not ‘in point’ as far as the                  subject-matter of Duncombe was concerned.  The same can be said of Duncombe in relation to the present case.

In one of the first decisions in relation to fixed-term workers, albeit at first level in Scotland, an Employment Tribunal in Ball  v  University of Aberdeen [ETS/101/486/08], considered the employment of a researcher in the respondent University on three successive fixed-term contracts, comprising approximately nine years overall.  The respondent’s argument on objective justification was the difficulty posed by successive funding agreements.  That funding could only be guaranteed for a period and the funding was necessary to underpin the researcher’s employment.  Its policy had been to employ researchers on fixed-term contracts to avoid the possibility of redundancy when funding for individual projects ran out and was not renewed.  That however is precisely the circumstances in which fixed-term contracts will often be used.  The Employment Tribunal determined that the respondent in the Ball case was, in reality, in no different a position than that applying to many other employers who could not guarantee an income stream beyond one or two years.  That was the reality of the situation.  

28.	In cases such as the present case where the argument concerns legislative provisions applicable throughout Europe and where another Member State has parallel domestic provisions, the case law in that other Member State must be considered persuasive, although not binding, in reaching determinations.  The Republic has a domestic provision which is analogous to the 2002 Regulations.  Under the Protection of Employees (Fixed-term Work) Act 2003 (‘the 2003 Act’), where a fixed-term employee is employed on two or more continuous fixed-term contracts, the aggregate duration of such contracts ‘shall not exceed four years’; unless there are objective grounds justifying a longer period.

29.	In Health Service Executive Dublin North East  v  Ali Umar [2011] IEHC 146, the High Court in Dublin heard an appeal from the Health Service Executive against an order of the Labour Court determining that the employee had been entitled to a contract of indefinite duration.  

	The employee had initially been employed at Cavan General Hospital as a consultant in emergency medicine.  The Health Service Executive had originally approved the filling of that post in 2003.  It had been filled on a temporary basis in September 2003 by an individual who then resigned in June 2006.  The employee in this case was then recruited on a temporary basis following a competition.  A further competition was held to fill the post on a permanent basis and a candidate was selected and not appointed.  It had been expected that the employee’s appointment would be of short duration pending a successful candidate taking up the appointment.  However the successful candidate continued to decline the appointment.  The employee was then engaged in a series of fixed-term contracts for various reasons and in various locations.  Those contracts were either for fixed periods or, in the case of the latter contract, for a fixed purpose.  All were fixed-term contracts for the purposes of the legislation.  Following the conclusion of that latter contract the employee’s employment terminated.  He contended before the Labour Court that his contract had become one of indefinite duration.  The Health Service Executive argued that there had been objective grounds justifying the relevant extension of the claimant’s fixed-term employment.

30.	The High Court stated at Paragraph 5.2:-

“The Labour Court observed that the purpose of the Act was to prevent abuse arising from the use of successive fixed-term contracts.  The Labour Court cited the decision in the Adeneler  v  Ellinikos Organismos Galaktos [2006] IRLR 716 where the European Court of Justice considered the rationale for the Framework Agreement upon which the 2003 Act is based.  It was held at Paragraphs 61 – 66 that :

‘The Framework Agreement proceeds on the premise that employment contracts of indefinite duration are the general form of employment relationship whilst recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities.  

Consequently the benefit of stable employment is viewed as a major element in the protection of workers, whereas it is only in certain circumstances fixed-term contracts are liable to respond to the needs of both employers and workers.’.”

31.	The Labour Court had further observed that the entitlement of fixed-term workers to the type of stable employment envisaged by the Framework Agreement can be offset where there are objective grounds for continuing their employment for a  fixed-term.  The test for employers to meet in showing objective grounds was set out in Inoue  v  MBK Designs [2003] 14 ELR 98.  The employer must show that the impugned measures:-

“(a)	correspond to a real need on the part of the undertaking,

(b)	are appropriate with a view to achieving the objective pursued, and

(c)	are necessary to that end.”

The Labour Court had specifically noted that a plea of objective justification in relation to a claim under the Act is in the nature of a defence and it is for the employer to make out each element of that defence.

32.	The High Court went onto record at Paragraph 5.3:-

“The Labour Court considered that Section 8 of the Act was relevant to this case.  Section 8 requires an employer to inform a fixed-term employee, whose contract is being renewed, of the objective grounds for such renewal and the reason why the employee is not being offered a contract of indefinite duration.  The Labour Court cited its earlier decision in Health Service Executive North Eastern Area  v  Khan [2006] 17 ELR 313, where it considered the effect of Section 8:

‘The purpose of Section 8 is not just to ensure that a fixed-term contract employee is informed of the reason why his or her contract is being renewed.  On our reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under Section 9(4).  Thus where an employer fails to provide a                   fixed-term employee with a statement in writing, in accordance with Section 8(2), it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove to the contrary’.”

33.	It is clear that Section 8 of the 2003 Act is the equivalent of Regulation 9 of the 2002 Regulations.

	The High Court stated:-

“The Labour Court concluded that the appellant appeared not to have complied with Section 8 in any meaningful sense.  The respondent’s fixed-term employment was renewed on 2 January 2008, and a statement in writing was not furnished until 23 May 2008.  Section 8(1) requires that this statement must be as soon as practicable.  The statement furnished did set out the basis upon the contract would terminate, namely on the making of a permanent appointment.  However, of significance was the absence of any detailed explanation as to why the complainant was being offered a fixed-term contract rather than one of indefinite duration.”  

34.	At Paragraph 5.6 of its decision the High Court stated:-

“The Labour Court determined that in relation to the test of objective justification it was necessary to consider if the test should be applied to the circumstances which pertained in January 2008 (when the final fixed-term contract was granted) or whether it should be considered in the wider context of the totality of the respondent’s employment with the appellant.  The Court found that if the question of issue was to determined solely by reference to the facts prevailing in January 2008, it would be relatively easy to dispose of the matter.  The appellant had obtained approval to appoint two additional consultants at Cavan Hospital.  It wished to fill those posts by open competition.  That was undoubtedly a legitimate objective and corresponded to a real need of the appellant.  Appointing the respondent to the post on a permanent basis would have defeated that objective.  It was therefore appropriate not to appoint him to the post permanently.”

35.	However, the Labour Court had also determined that the matter should not be considered in such a narrow context and that the totality of his employment should be considered.  The Labour Court had also determined that the decision to terminate the last fixed-term contract was disproportionate and therefore inappropriate.  It stated that:-

“The appellant wished to open the post in the hope of obtaining the service of a more suitable person.  This must be balanced against the respondent’s right to stable employment and the fact that he had performed duties similar to those entailed by the post in issue without complaint by the appellant over a prolonged period.  There was no evidence to suggest that the appellant gave any or adequate consideration to the respondent’s rights in deciding not to appoint him to the post permanently.”

36.	The High Court disagreed with the analysis of the Labour Court.  It accepted what the Labour Court had said as a provisional determination (which they later reversed).  The Labour Court had stated that in the circumstances that prevailed holding an open competition for the permanent appointment was a legitimate aim corresponding to the real need of the respondent.  They held that that objective would have been defeated by appointing the complainant to a permanent post and that the use of a fixed-term contract to fill the post pending the open competition was necessary.  

37.	The High Court stated at Paragraph 8.7:-

“Lommers  v  Minister Van Landbouw, Natuurbeheer en Visserij [2002] IRLR 430, on which the respondent relies, deals with individual rights and states that when seeking to derogate therefrom, due regard must be had to proportionality which requires such derogation must be appropriate and necessary.  This it seems to me is exactly what the 2003 Act seeks to do when it provides for an exception where there are objective grounds justifying a renewal of a fixed-term contract.  I can find no obscurity or ambiguity in this provision.  It is not therefore my view permissible to import into the statute something which is not there by way of applying a purposive interpretation.  The requirement to consider the respondent for that permanent post without an open competition seems to do just that.  The purposive interpretation made in Khan and applied here is in my view an impermissible attempt to amend the statute.  In this regard it appears to me that the Labour Court fell into error when it found on the basis of this impermissible interpretation of the statutory provision that the late Dr Lommers’ contract had become by operation of law, pursuant to Section 9 of the Protection of Employees (Fixed-term Work) Act 2003 a contract of indefinite duration.”

38.	In Catholic University School  v  Colm Dooley and the High Court and Catholic University School  v  Aiofe Scannell [2010] IEHC 496, the High Court was again considering appeals from the Labour Court in relation to                           fixed-term workers.  It concerned differences in pay rates for those who are on a part-time or a fixed-term basis.  The issue of objective justification was again raised but in this context in relation to differential treatment.  In its decision under the ‘heading ‘objective justification’ the Court stated:-

“I want to make some very brief observations on this issue.  The School in this case has argued that the different contractual and/or employment status of the chosen comparators as compared to the claimants constitute objective justification for a less favourable treatment which has occurred as between the claimant and their chosen comparators.  The Labour Court in the course of its determination stated that ‘the objective justification relied upon by the School appears to be that the School cannot afford the cost associated with affording the claimant’s equal treatment.’  There is an abundance of authority to which reference has already been made to the effect that the issue of cost cannot justify unequal treatment.  I have already referred to the decision in Hill and Stapleton  v  Revenue Commissioners and Department of Finance and to the decision of the ECJ in Jorgensen above.  It seems to be very clear and obvious that the purpose of the Directive in the legislation transposing the Directive into Irish law would be defeated if cost alone was accepted as a defence because as pointed out by the Labour Court ‘in every case in which it is necessary implement principles of equality there is a cost to the employer.”

39.	The Court went onto state:-

“I accept that the test to be applied in considering a defence of objective justification is that set out in the case of Del Cerro Alonso, referred to above, namely that the unequal treatment responds to a genuine need; is appropriate for achieving the objective pursued and is necessary for that purpose.”

40.	In An Post  v  Finbarr Monaghan  v  Deirdre Wade [2013] IEHC 404 the High Court considered an appeal from the Labour Court in which a declaration was sought to the effect that the employee’s right to equal treatment had been breached, in that voluntary severance/voluntary early retirement schemes which were available to permanent employees were not available to                                fixed-term employees.  The fixed-term workers argued that the employer could not rely on its need to incentivise permanent employees to leave employment voluntarily in circumstances where those permanent employees currently enjoyed security of tenure and cannot be made compulsorily redundant.  The issue was, as in the present case, one of objective justification.  

41.	At Paragraph 5.3 of its decision the High Court stated:-

“The real question for the Court is whether Section 7 applies.  In short, was the exclusion justified by virtue of a legitimate objective and was the exclusion an appropriate and necessary one?  See Adeneler and Others  v  Ellinikos Organismos Galaktos [Case C-212-04].  It seems to me, and I do not think it was in issue, that the overriding objective of trying to voluntarily reduce the number of staff is, in the circumstances, a legitimate one.  Consequently the first question is answered affirmatively.  It is a legitimate objective but was the exclusion appropriate and necessary?  This should be examined on a proportionality basis.  Thus, the Court must address the second question.  Was the exclusion the minimum unfavourable treatment necessary to enable the appellant obtain its objective?  [Tribunal’s emphasis]  In its decision the Court did not directly address this question.  I think this Court can and should do so in order to finally resolve this matter.  The objective is to reduce labour costs within An Post.  Thus, incentivising any workers to leave early is obviously going to move towards that end.  Fixed-term workers have, under the Framework Agreement, annexed to Council Directive 1999/70/EC of 28th of June 1999, a right to benefit from a principle of non-discrimination.  To this end, Clause 4.1 thereof states:

‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than the comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’

Thus the default position is one of non-discrimination and no less favourable treatment.  In Paragraph 4.4 to 4.10 of the submissions therein the appellant sets out its reasons for less favourable treatment.  It claims at 4.14 that the scheme chosen was the only means suitable to secure the objective.  The respondents argue that there is a less unfavourable means.  They point to a rather obvious one.  The scheme could have allowed for the application to fixed-term contracts so as to buy out any remaining years of their contracts.  This was argued at the hearing, seems eminently sensible and a fair solution and no argument was raised against it.  In my view, this answers the question addressed.  The means chosen by An Post was not the minimum unfavourable treatment required in order to achieve the legitimate objective.  As it went beyond what was necessary, it failed the applicable test.”

	The High Court therefore refused the appeal from the Labour Court.

Relevant findings of fact

First-named claimant – Peter Alfred

42.	In November 2009, applications were invited by the Northern Ireland Prison Service for ‘a cook administrator currently when seeking applications at Prison Service College, Millisle’.  [Tribunal’s emphasis]  The use of the word ‘currently’ when seeking applications can only suggest that that appointment was not meant to be restricted to that one geographical location.

43.	On 30 March 2010, the NIPS sent a letter to Mr Alfred stating:-

“Further to previous correspondence, I have pleasure in offering you an appointment as a cook administrator in the Northern Ireland Prison Service, based at Prison Service College, Millisle ... .”

44.	The post accepted by the first-named claimant, with effect from 12 April 2010, was a two year fixed contract.  The post was pensionable.  It was described as a                ‘non-mobile’ grade.  

45.	The written particulars of contract contemplated the possibility of a transfer of the                     first-named claimant from Millisle.  It stated at Paragraph 6:-

“Cook administrators are a non-mobile grade, therefore you will only be transferred to other locations which are within a reasonable travelling distance.  However, you will be liable to serve away from your home station for periods of detached duty to meet specific operational demands.  There will also be the option to volunteer to transfer to other establishments.”

46.	On 13 January 2012, the first-named claimant’s fixed-term contract was extended for a further 12 months with effect from 12 April 2012.  It was renewed repeatedly thereafter.  

47.	The first-named claimant’s contract of employment was most recently extended on 16 September 2015 until 31 October 2015.  The relevant letter stated that the contract of employment would be reviewed at that point.  There was no finality expressed in relation to that extension.  

	In any event, the contract of employment was extant at the date of the tribunal, ie 15 October 2015.  

Second-named claimant – Sabrina Alfred

48.	In or around September 2010, applications were invited for cleaners in both Maghaberry Prison and in Millisle.  The former was a permanent post; the latter a two-year fixed-term post.  

49.	Information supplied to applicants stated:-

		“Cleaners are a non-mobile grade.”

50.	On 21 January 2011, the second-named claimant was offered a two-year fixed-term appointment as a cleaner in Millisle.  The post was pensionable.  It was described as a non-mobile grade.  

51.	As with first-named claimant’s contract, the contract with the second-named claimant contemplated the possibility of transfer from Millisle.  It stated at Paragraph 6:-

“Cleaner is a non-mobile grade, therefore you will only be transferred to other locations which are within reasonable travelling distance.  However you will be liable to serve away from your home station for periods of detached duty to meet specific operational demands.  There will also be the option to volunteer to transfer to other establishments.”

52.	On 24 January 2013, the second-named claimant’s contract was extended for a further three months with effect from 21 January 2013.  It was extended repeatedly thereafter.  

53.	On 16 September 2015, the second-named claimant’s contract of employment was extended to 31 October 2015.  The letter stated that the contract of employment would be reviewed at that date.  There was no finality expressed in relation to the extension to 31 October 2015.  

54.	In any event, the contract was extant at the date of the hearing, ie 15 October 2015.

55.	The contracts of the two claimants were last extended in February 2015 immediately before the lodgement of the two claims in April 2015.  Those two renewals of the claimants’ contracts are the relevant renewals for the purposes of this application for a declaration.  

The Prison Service College

56.	The Prison Service College at Millisle has been in existence since 1981 and it employs more than 30 people.  It provides not just initial training to new recruits but ongoing training required by existing Prison Officers in the course of their career.  

57.	In 2007, the Northern Ireland Prison Service (‘NIPS') joined in a joint proposal for a combined training college with the PSNI and the NIFS.  

58.	That combined College was to be based on a vacant site in Desertcreat, near Cookstown.  

59.	At that time, the expectation was that Millisle would close when the combined College opened.  

60.	An outline business case for the combined College was approved by the Executive in 2011.  

61.	A planning application for the combined College was submitted in July 2012 and tender documents were issued to potential bidders in September 2012.  

62.	Planning approval was granted in January 2013.  

63.	The process broke down in April 2013 as a result of costs associated with the project.  The principal architects and the costs consultants were replaced.

64.	Following an amendment to the outline business case and reductions in the proposed costs, the amended outline business case was approved by the Executive in December 2013.  

65.	The process broke down again when the preferred bidder withdrew in April 2014.  That bidder could not fulfil the contract at the proposed price.  

66.	In October 2014, the Steering Group sought what was described as a ‘Strategic Stage 2 Review of the Programme’.  

67.	In March 2015, an interim report on the Stage 2 Review was presented to the Steering Group.  It highlighted the impact of budget cuts, reductions in the level of recruitment and reductions in the number of training days for the three services.  

68.	A draft paper was presented to the Executive and a revised outline business case was again requested.  

69.	That revised outline business case was to be presented to what is described as ‘the Northern Ireland Community Safety College Programme Board’ on 13 October 2015.  It is unclear whether that in fact occurred.  

70.	The position at the first hearing was that the proposal to build a combined College at Desertcreat is not dead.  It is where it has always been; stuck in the political process.  Eight years have passed.

71.	At the resumed hearing the respondent stated that the current position in relation to Desertcreat at that point was that a proposal, otherwise known as ‘a business case’, had been made by the Project Board to someone, presumably the Executive, putting forward an option for a single College at Desertcreat for the Northern Ireland Fire & Rescue Service only.  If that proposal were to be accepted and acted upon, that single use College would go ahead at Desertcreat with separate facilities for the PSNI at Garnerville and separate facilities for the Northern Ireland Prison Service at Maghaberry.  However, insofar as the original Desertcreat proposal is concerned, confusion still reigns, in that while a new proposal for a single use College has been made, there can be no guarantee that that proposal would be accepted and no guarantee that the previous proposal for a combined College for the three services at Desertcreat would not, in some form, proceed at some later date.  

72.	Separately from the progress, or lack of it, in relation to the combined College, the NIPS has decided to move its training function from Millisle and to move it in the interim to Hydebank.  The ultimate plan of the NIPS is then to move the training function to Maghaberry Prison.  It is unclear how that proposal could sit easily with the proposal for a combined Training College at Desertcreat which appears to be on life support rather than totally dead. 

73.	Unsurprisingly, there was a continuing level of uncertainty about Millisle during the continued employment of both claimants.  On 14 December 2011, the catering manager of the College was already pressing for a significant extension of the                first-named claimant’s contract and that contract of employment was extended for an initial period of 12 months from 11 April 2012.  

74.	Despite the continued uncertainty at that point and the obvious impossibility of the combined Training College being approved, being built and being occupied within the short-term, the next extension of the first-named claimant’s contract was for only three months from 12 April 2013.  There appears to have been no particular justification for the choice of such a short extension as opposed to an extension of perhaps 12 months or even longer.  The needs of the employee do not appear to have been considered.

75.	Thereafter, short-term extensions of between three and six months were made to the contracts of employment of both the claimants.  

76.	On 4 November 2014, there was an exchange of e-mails within the Personnel Department of the NIPS.  The first such e-mail from one individual in the Personnel Department highlighted the position of a group of fixed-term employees including the two claimants.  It pointed out that the staff would require four weeks’ notice of termination.  It included the unfortunate phrase:-

“In particular, Peter Alfred ... will be in post four years in 2014, I will need to be very careful that the required notice is given to these staff in order to avoid employment rights.”

	It would appear that the focus of the respondent was on the avoidance of employment rights rather than on a rational consideration of whether there were objective grounds for successive fixed-term employment.

77.	In a later e-mail on 5 November 2014 the same officer in the NIPS stated:-

“May I also add that Peter Alfred ... and ... will be in post four years in 2014 therefore it is important to give sufficient notice in order to avoid rights to permanent employment.”

	Again the respondent demonstrated a focus on avoiding employment rights.

78.	On 11 November 2013 the Head of Learning & Development stated in an e-mail:-

“______________ is leading on developing the business case to look at closure of the PSC [Prison Service College – Tribunal’s note].  The original intention was that the PSC would close in April 14, however, a final decision on closure cant be made until the business case process has been worked through.”

	Uncertainty therefore prevailed even at that late stage.

79.	The officer in the Personnel Department of NIPS wrote again on 11 November 2013 to state:-

“Peter will be in post four years on 11 April 2014.  There is a requirement to give fixed-term appointments a month’s notice.  Also if a decision is not made before 10th March 14 NIPS will have to offer Peter a permanent post.  I would be grateful if you could give urgent consideration to this.”

80.	That particular issue was passed from one individual to another and then eventually to the Head of Learning & Development.  She stated on the 11 November 2013:-

“He is not within my line management and as such I don’t believe its appropriate to take the call on whether his contract is extended ... this is a matter for the overall catering function.”

	She went onto state:-

“I can confirm that the PSC will not close before April 14, but in the absence of the business case I cant give any certain information on whether the PSC will remain open from April onwards.  I can give information on the level of training delivery anticipated post-March 2014, but not where it will be delivered pending finalisation of the closure of business case.”

81.	The officer in the Personnel Department wrote again on 11 November 2013 to everyone involved as follows:-

“I really need someone to give me a decision on Peter, as we need to be careful of employment rights.  If you are content I can advise him that his contract will be ended on 11th of April 2014.  Please bear in mind if I do this it cannot be extended for any reason.”

	Again the focus of the respondent was on the avoidance of employment rights.

82.	Another individual wrote to the Head of Learning & Development on 12 November 2013:-

“The issue of extending Peter Alfred’s contract depends on the need for catering services post-1 April 2014.  Can you confirm that you will require a catering manager/chef administrator for the foreseeable future?  Ie to 1 April 2014 and beyond.  If the position is required post-1 April 2014 NIPS will probably confirm an extension until the end of March/1 April 2014 but then will have to probably confirm it as a full-time post thereafter if the need continues.  Thereafter the re-location of the post will become an issue for the Closure of Millisle Project.”

83.	The Head of Learning & Development replied on 12 November 2013 to state:-

“I can only confirm a need to the 31st of March 2014 pending the outcome of the business case.  I would suggest that a temporary extension is given to the 31st of March ... if there is no need for a post from the 1st of April 2014 then notice could be presumably be given by the 11th of March which would avert the issues ... as highlighted.”

84.	On 11 July 2014 an e-mail was sent by a Staff Officer in the Headquarters of NIPS to her superior.  That attached what was described as a brief summary of the case.  It requested a quick decision.  That summary was heavily redacted before the tribunal because it contained legal advice obtained from the DSO.  Under a section ‘Way Forward’ the summary stated:-

“There are e-mails on file from previous reviews on contract asking for advice from PSC about ongoing need for the post.  _______________ phoned today to ask me about Peter’s case and if the fixed-term contract would be further extended or if the post would be made permanent.  Peter had asked _________________ about his future.  I advised _______________ that the case was under consideration and we will be probably asking for info/comments.  Peter is due to commence annual leave and will return to work early August.  I suggest we issue e-mail to Julie Anderson/ _______________ asking if there is an ongoing requirement for the post, an indication of how it will be required.  We also need advice on the future of the PSC.  When the information is available we may want to check.  If we are terminating contract I would expect there to be a reasonable period and need to take advice on this.”

85.	It is clear that there was still ongoing uncertainty at this point.  There was, firstly, the continued uncertainty about the combined College at Desertcreat; and, secondly, there was an ongoing project which was to consider the re-location of training with the NIPS separately from the Desertcreat proposal.  

86.	On 19 September 2014, the first-named claimant wrote to the NIPS stating:-

“I have been in receipt of continuous short-term contracts from the Northern Ireland Prison Service since April 2010.  Under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulation (NI) I consider that as I have been on a fixed-term contract for over four years I am entitled to be deemed as a permanent employee.  I would be grateful if you would confirm same.”

87.	That was a Regulation 9 letter which required a proper reply.  A reply was sent by the Head of Human Resources to the first-named claimant on 29 September 2014.  It stated:-

“As previously advised in _______________’s letter of the 9th of April 2014, the Northern Ireland Prison Service (NIPS) sought legal advice in relation to the extension of your fixed-term contract beyond four years, due to uncertainty around the transferring of the training and as a consequence catering services from the Prison College in Millisle to Desertcreat.  As a result of this legal advice, NIPS will continue to retain your services on a fixed-term contract basis until the decision on the future of the College at Millisle is finalised.

Your fixed-term contract will continue until 28th of February 2015 and at this date it will be reviewed.”

That reply was issued within the 21 day time-limit but was evasive and equivocal.  Referring to legal advice, which will necessarily remain confidential, was of no assistance to anyone.

88.	On 29 December 2014, the first-named claimant sent a letter to the respondent which raised the issues of permanent employment in a more formal way.  It stated:-

“I have been employed by the Northern Ireland Prison Service since April 2010 on a succession of fixed-term contracts.  The most recent contract was renewed in August 2014.  

I believe that my employment is covered by Regulation 8 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 and that in accordance with Regulation 8(2) I am to be considered a permanent employee because I have been continuously employed under fixed-term contracts for a period in excess of four years.  

In accordance with Regulation 9(1) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 I am therefore writing to request a written statement confirming that my contract is no longer fixed-term and that I am now a permanent employee.  I am entitled to be provided with, within 21 days of this request, either (a) such a statement, or (b) a statement giving reasons why my contract remains fixed-term.

In the event that I am provided with a statement which asserts that there are objective grounds for the continuation of my employment on a fixed-term contract and that these grounds are related to the potential development of the Community Safety College at Desertcreat I will have no option but to present an application to the industrial tribunal for a declaration to the effect that I am a permanent employee.  A written statement under this Regulation is admissible as evidence in any proceedings before an employment tribunal.

I look forward to hearing from you.”

89.	That letter was again, in accordance with Regulation 9 of the 2002 Regulations.  It received a cursory acknowledgement on 9 January 2015 which stated:-

		“Please note a response will be issued to you in due course.”

90.	On 3 February 2015 in another internal e-mail, an individual in Personnel stated:-

“____________________ has informed staff that the PSC Millisle will close its business unit during 15/16.  She thinks re-location might take place around September (staff not aware) but will have a better idea of the timing of the move in a few months time.  

Are you content that we stick with their standard extension letters as there nothing concrete to include in the letters at the moment?”

91.	On 31 July 2015 a formal reply to the first-named claimant’s letter of 29 December 2014 eventually issued.  Given the terms of their acknowledgement on 9 January 2015, the respondents have a different definition of ‘in due course’ than the definition normally held.  

92.	That letter dated 31 July 2015 stated:-

“We write in response to your request for a written statement of variation pursuant to Regulation 9 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (‘the 2002 Regulations’).

The Department notes that you have been continuously employed by the Department in excess of four years, however, it does not consider that your contract of employment has become a permanent contract by virtue of Regulation 8(2) of the 2002 Regulations by reason of the fact that your employment on a fixed-term contract is justifiable on objective grounds.

When you were employed as cook administrator by the Department at the Millisle site, it was anticipated that the Prison Service College would close in the near future and that it would be replaced by a new combined police, fire and prison service training service in Desertcreat, Cookstown, Co Tyrone.  There has been some slippage in the project to open the new College in Desertcreat and it is anticipated that the Prison Service College in Millisle will remain open until 2016.  

Therefore as the Millisle site remains open there is a continuing short-term need for catering services and your employment on a fixed-term basis reflects that need ... your contract was extended at the expiry of the              fixed-term to accommodate the short-term business need.  At all material times, it was anticipated that the business need for cook/administrator would end as the Millisle site would be closing ... this remains the case, however the precise closure date is not yet known.  As such it is for this reason you are employed by the Department, and continue to be employed by the Department on a fixed-term contract.  

The Department considers the decision to employ you, and continue to do so, on a fixed-term contract entirely justifiable on objective grounds by reason of the specific circumstances pertaining to your role and appointment.  The business need for a cook/administrator has at all times been of a              short-term nature and is likely to end in the near future.

For the above reasons the Department does not regard your contract of employment as having become permanent.”

93.	The Department states that it did not receive any similar letter from the                    second-named claimant.  

	Given that the first and second-named claimants are married, it seems highly unlikely that the first-named claimant would have submitted a formal notice under the Regulations and that the second-named claimant would not have done so.  We consider it much more likely and determine, on the balance of probabilities, that such a letter was sent by the second-named claimant and received by the respondent.  In any event, on 31 July 2015 a shorter version of the reply to the                  first-named claimant issued to the second-named claimant.

94.	The response to the first-named claimant’s letter of 29 December 2014 under the Regulations should have a received a proper response within 21 days.  The response was a further 192 days late.  

	The respondents only reason for the late reply is that they were waiting for a legal opinion from The Departmental Solicitor’s Office.  That is not a satisfactory excuse for such a blatant failure to comply with an important requirement in the Regulations.  They did not say that they regarded that reply on 29 September 2014, to the earlier letter of 19 September 2014, as concluding the matter.  Realistically, they could not have done so.

95.	The position of the respondents in this matter was that staff had always been aware of the proposal to open a combined College in Desertcreat and that, in particular, they had been aware of the decision to close Millisle since December 2012.  Nevertheless, the Head of Learning & Development sent an e-mail on 11 November 2013, almost one year later, stated:-

“A final decision on closure can’t be made until the business case process has been worked through.”

	That was against the background of continuous uncertainty about Desertcreat.  Furthermore, the Head of Learning & Development in cross-examination stated that hope could still have been alive amongst employees at Millisle.  

96.	The position of the respondent was that despite the uncertain prospect of a combined Training College, a savings plan for the NIPS had anticipated savings of £1.2 million from the closure of Millisle.  Millisle was a Grade 2 listed building which had fallen into a state of disrepair and was expensive to heat and run.  

97.	The respondent’s position was that a full staff briefing had occurred in late January/ early February 2015 in Millisle at which staff were told that the intention was to close Millisle in the following financial year, ie between April 2015 and March 2016.  If the history of the Desertcreat proposal (or proposals) indicates anything, it indicates that ‘intentions’ of Government Departments, particularly when expressed in vague terms are somewhat nebulous.  The respondent also stated that there had been an evaluation by the Strategic Investment Board which advised the respondent that there was a market for the sale of Millisle and that vacant possession was necessary to enable that sale.  That evaluation was not provided on discovery and was not opened to the tribunal.  It is entirely unclear why vacant possession of Millisle would have been required to enable potential purchasers to look around the premises, particularly when the premises operated only during normal working hours and where it did not operate at the weekend.  It is also unclear whether or not Millisle has been sold or is in the process of being sold.  

98.	In the resumed hearing, Mr Millard confirmed that in a hypothetical situation where the Prison Service was considering the potential redundancy of permanent staff and therefore their potential redeployment, it would consider the whole NICS as the scope for that redeployment.  It would seek vacancies in other Departments and other areas within the NICS as a whole.  

99.	Again at the resumed hearing, Ms Anderson confirmed that in such a potential redundancy situation involving permanent staff the Prison Service would discuss alternatives with that member of staff and in the case of a non-mobile grade would discuss directly with that member of staff the extent of any ‘reasonable travelling distance’ in an effort to identify suitable alternative employment.  That would involve factors such as whether the employee has a driving licence, whether that employee has access to a vehicle, whether the proposed route is served by public transport, etc.  

100.	Catering Services in the three existing prisons at Magheraberry, Magilligan and Hydebank were all provided directly by prisoners who worked under the supervision of prison officers.  At present there were no employed cooks in any of those three locations.  

101.	At the resumed hearing the respondent confirmed that Mrs Alfred had been offered a permanent cleaning post at Magheraberry.  That offer has not, as yet, been accepted, pending the outcome of this application for a declaration.  

	It would appear that the respondent did not investigate the potential for such a vacancy until recently.  Mr Millard stated only at the resumed hearing that he had checked the position in relation to cleaning posts at Magheraberry and had identified a vacant post.  It would therefore appear that this exercise post-dated the first hearing.

102.	Cleaning and catering at Dundonald House where the Prison Service Headquarters is located is currently done by two separate private companies.  

103.	The respondent is not aware of any catering vacancies within the NICS.  However, Mr Alfred was employed as a cook/administrator and not simply as a cook.

104.	Ms Anderson confirmed at the resumed hearing that certain employees would transfer on the closure of the College at Millisle on 31 December 2015 to the possibly temporary location at Hydebank Wood.  The intention was, at some indeterminate point in the future, for the training facility to move again to Magheraberry.  The people who would move on 31 December 2015 to Hydebank Wood are Ms Anderson, the Unit Manager, four senior officer trainers,                            one EOI Administrator, one permanent full-time AO, one permanent full-time AA, two permanent part-time AOs and two permanent dog trainers.  Apart from the above, two staff were leaving as part of the current Voluntary Redundancy Exercise.  They were a catering assistant and a kennel assistant.  Both were permanent members of staff.  Importantly, two permanent part-time AOs were not transferring.  They did not want to move to Hydebank.  There was no evidence that those two permanent part-time AOs had been replaced.  No offer had been made to Mr Alfred of a permanent AO post to replace the two part-timers and it would appear that no consideration has been given by the respondent to that possibility.  

Decision

105.	It is clear from the papers that the first-named claimant sent an appropriate letter under Regulation 9(2) of the 2002 Regulations to the respondent on two occasions; on 19 September 2014 and on 29 December 2014.  The tribunal has concluded that on the balance of probabilities that a similar letter was also sent on behalf of the second-named claimant.  In any event, a cursory reply issued to the                               first-named claimant on 9 January 2015 referring to legal advice.  A further reply did not issue until 31 July 2015 to both the first and second-named claimants.  On any measure, the latter response from the respondent to both claimants was extraordinary late and casual in nature.  No proper reason or excuse has been put forward for this delay.  Despite a clear legislative requirement for a proper response within 21 days, the responses did not issue for a further 192 days.

106.	The tribunal can draw an appropriate inference from the initial reply on 29 September 2014 and its evasive and equivocal nature.  The tribunal can also draw an inference from the delay and the contents in the replies of 31 July 2015.  The respondent, particularly where such a lengthy delay has occurred, can only be regarded as having definitively committed itself to the terms of its reply as its objective justification defence.  (See Khan above.)  The terms of the replies issued by the respondent were not detailed and amount to little more than a statement that, even allowing for ‘slippage’ in the Desertcreat Project, it was anticipated that Millisle would remain open until 2016 and that the posts of the claimants were fixed-term.  The replies, presumably after this length of time, considered replies, contained no reference to a move to Hydebank Wood, on either a temporary or permanent basis, and no mention of a proposed move to Magheraberry, and indeed no mention of the various permutations in relation to Desertcreat.  Importantly, it contained no consideration of suitable alternative employment for either claimant and amounted to little more than an assertion that, as fixed-term workers, their contracts ended on termination of the latest fixed-term contract.  There was no real consideration of whether after five years’ employment, their contracts needed still to be fixed-term or whether they would have been regarded as permanent.  It is surprising that the claimants had to wait, not just 21 days but for a further 192 days for these replies.  The internal correspondence referred to above in Paragraph 76 and 77 indicates that the focus of the respondents was on avoiding the creation of employment rights rather than on a proper assessment of objective justification.  The tribunal therefore drawn an adverse inference and concludes that no proper consideration was given to any objective justification.

107.	It is also notable that although termination of fixed-term workers on the expiry of their contracts of employment would be dismissals for the purposes of the Employment Rights (Northern Ireland) Order 1996, there has been no attempt to engage the two claimants in the three-step statutory procedure applicable in such circumstances.  Obviously at the present time, no dismissal has yet taken effect.  The tribunal is therefore not at this stage considering applications for unfair dismissal.  

108.	As indicated above, the tribunal has concluded that it would be appropriate to draw an adverse inference against the respondent arising out of their substantial and inexplicable delay to provide a proper reply to either claimant.  Apart from that, the objective justification defence requires not just that there should be a legitimate objective for the use of successive fixed-term contracts.  Arguably the initial uncertainty in relation to the continuation of the Millisle College at the start of these contracts at least could have provided such a legitimate objective.  Whether or not it continued to do so in February 2015 is another matter.  

109.	In any event, the other part of the objective justification defence requires that the use of successive fixed-term contracts and in this particular case the latest extension of the fixed-term contracts in February 2015, judged appropriately against the background of this case, should be proportionate and necessary.  In early February 2015, staff had been informed of an ‘intention’ to close Millisle at some indeterminate stage between April 2015 and March 2016.  A vague intention, particularly when considered against the history of Desertcreat was something far short of a certainty.  When the fixed-term contracts were extended in February 2015, there was no definitive end in sight for Millisle.  It was in a real sense ‘indefinite employment’.  As in the An Post case above, the facts of this case indicate that the respondents really have not considered any alternative method of dealing with this matter.  They have not until very recently, looked at the possibility of alternative employment for the second-named claimant as a cleaner in Magheraberry.  When it looked, it found there was a vacancy.  It has not, even yet, considered whether the first-named claimant should be offered a permanent AO post to replace the two departing part-time AO permanent staff who did not want to move to Magheraberry.  The respondent has not considered the scope for wider redeployment within the NICS as an AO or any other appropriate grade for either claimant.  It has not considered the particular scope of the mobility obligation for either claimant; that would have required an individual assessment of not just potential vacancies but the  claimant’s access to private or public transport.

	It is for the respondents to establish each part of the statutory defence (see Umar above).  They have failed to do so.

110.	In short, it appears clear that the use of successive fixed-term contracts in this instance was not either proportionate or necessary.  A declaration is therefore awarded as sought.  

Vice President 

Date and place of hearing:	15 October 2015; and
18 November 2015, Belfast

Date decision recorded in register and issued to parties: