An employer provided an income replacement policy for employees, through an insurer, to cover sickness absence lasting for 26 weeks or more. The claimant, who worked under a fixed-term contract which was regularly extended, suffered a work-related injury in April 2012 which would have put him off work for the qualifying 26 week period. But his fixed term contract at the time was due to expire in July 2012 – before the 26 week qualifying period would have been completed. In the event, his contract was extended for a further year, but the insurer 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. He claimed that he had been discriminated against under the Fixed-term Employees Regulations.
It was accepted that the claimant was in a less favourable position than he would have been if he had been on an open-ended or permanent contract; the issue was whether that was caused by the employer. The employment tribunal decided it was not – it was the insurer's action, and the employer was merely the messenger to the claimant of the result of that act. Alternatively, if the less favourable treatment could be said to have been caused by the employer because of its failure to negotiate non-discriminatory terms when the policy was taken out, the Employment Judge decided that it was justified, accepting the employer's argument that there was a universal approach taken by insurance providers in declining to pay out in this situation. Although the EAT said it might have wished for a fuller exploration of the availability of other, non-discriminatory, policies, the tribunal was entitled to take the view it did and the EAT would not interfere with that decision.