Webley v Department for Work and Pensions, EAT/0033/04 unreported

What constitutes less favourable treatment?: Webley commenced employment on a two-month fixed-term contract on 4 February 2002. She had a series of contracts until 17 January 2003 when her last contract was not renewed, making a total period of 51 weeks. She brought a claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

The Department for Work and Pensions argued that expiry of a fixed-term contract did not constitute a detriment, and that any less favourable treatment was objectively justified, because temporary appointments not exceeding 51 weeks could be made without going through open competition. The directions hearing said the non-renewal of a fixed-term contract was not capable of constituting less favourable treatment. Webley successfully appealed.

The Employment Appeals Tribunal (EAT) said the preliminary issue addressed by the tribunal was wrong. A fixed-term employee has the right not to be treated less favourably than a comparable permanent employee as regards the terms of their contract (Regulation 3(1)(a)), and not to be subject to any other detriment (Regulation 3(1)(b)). The issues to be determined were: whether or not it was a contractual term that Webley was subject to the 51-week rule and, if so, whether or not that term was applied to a comparable permanent employee; and whether she was subjected to a detriment by the application of the 51-week rule. The EAT sent the case back for a new tribunal hearing.

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