EAT Fixed Term Regulations – An employer provided the benefit of an income replacement policy, effected with Unum, in the event of ill-health. The Claimant suffered a hernia, which would have put him off work for the qualifying 26 week period were he not a fixed term employee, whose contract at the time was due to expire within three months. His contract was extended for a further year, but Unum did not admit his claim, relying on a policy provision that restricted benefit to the unexpired period of a fixed-term employee’s contract as it was at the time of the injury. An Employment Tribunal of two persons found that there was less favourable treatment than would have been the case if the Claimant had been a permanent employee, but disagreed whether this was suffered by him by an act or deliberate failure to act of his employer. The Employment Judge (who had the casting vote) said it was not – it was an act by Unum, and the employer was merely the messenger to the Claimant of the result of that act; the lay member said it was because the employee had not negotiated non-discriminatory terms when the policy was effected. If she was right, the Employment Judge would have held the discrimination justified as pursuing the legitimate aim of providing employees with PHI at no greater expense than the costs of an annual premium, whereas the lay member would not, holding that the employer could have renegotiated and had the resources to pay the Claimant anyway. Held that the conclusion of the Employment Judge as to the cause was one he was entitled to reach, and was not perverse; Unum were not the agent of the employer; the policy with them was not an instrument contracting out of the Fixed-Term Regulations; and the Employment Judge was entitled on the evidence to conclude that the only way the employer could reasonably achieve the aim was effecting the Unum policy (or one in substantially identical terms) and it was thus justified.
Langstaff P J
[2014] UKEAT 0061 – 14 – 1107
Bailii
Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
England and Wales
Employment
Updated: 21 December 2021; Ref: scu.536734
