Hudson v The Department For Work And Pensions (Fixed Term Regulations : no sub-topic) [2012] UKEAT 0397_11_0305 (10 February 2012)

Hudson v The Department For Work And Pensions (Fixed Term Regulations : no sub-topic) [2012] UKEAT 0397_11_0305 (10 February 2012)

Regulation 18 only excludes the application of the Regulations to employees currently employed under a contract to which Regulation 18 applies. It does not prevent an employee from relying on previous periods of employment that would have been within Regulation 18 for the purposes of Regulation 8. Therefore, the appellant is entitled to rely on her previous periods of employment for the qualifying period under Regulation 8, and the Employment Tribunal Judge erred in law in holding otherwise.

Citation
[2012] UKEAT 0397_11_0305
Parties
Appellant: a2emc Ltd; Respondent: Department for Work and Pensions
Jurisdiction
United Kingdom
Judgment Date
10 February 2012
Procedural Posture
Employment Appeal / Appeal From Employment Tribunal Decision
Outcome
appeal allowed
Legal Topics
Fixed Term Contracts, Employment Status, Statutory Interpretation, Government Training Schemes, Regulatory Exclusions
Employment Law Fixed Term Contracts Employment Status Statutory Interpretation Government Training Schemes Regulatory Exclusions

Case Brief

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Parties

a2emc Ltd

Appellant

Department for Work and Pensions

Respondent

Procedural Posture

Employment Appeal / Appeal From Employment Tribunal Decision

Legal Issues

  1. 1 Whether previous periods of employment under government schemes excluded by Regulation 18 can count towards the qualifying period under Regulation 8 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
  2. 2 Whether the appellant was employed 'on a scheme' within the meaning of Regulation 18
  3. 3 Whether the employment was designed to provide training or work experience for the purpose of assisting to seek or obtain work

Ratio Decidendi

Regulation 18 only excludes the application of the Regulations to employees currently employed under a contract to which Regulation 18 applies. It does not prevent an employee from relying on previous periods of employment that would have been within Regulation 18 for the purposes of Regulation 8. Therefore, the appellant is entitled to rely on her previous periods of employment for the qualifying period under Regulation 8, and the Employment Tribunal Judge erred in law in holding otherwise.

Court Disposition

appeal allowed

Orders

  • Matter remitted to the Employment Tribunal to determine whether the employer can make out the objective justification element of Regulation 8 to avoid the making of a declaration under Regulation 9(5).
  • Permission to appeal to the Court of Appeal granted to the respondent.