The Court of Session has paved the way for historic disputes about fixed term contracts and redundancies in the HE sector to be resolved. The ruling is from the Scottish equivalent of the Court of Appeal, and has implications in the rest of the UK. In a decision last month involving the University of Stirling, it confirmed that employees whose fixed-term contracts had expired should not normally be counted towards the collective redundancies threshold. Cases involving other Universities still in the employment tribunal system, which have been put on hold pending this decision, can now move forward. In many cases it is likely to mean that the claims will be dismissed.
Prior to April 2013 (when the law was changed) there was a live issue about how the definition of redundancy in the collective redundancy legislation should be interpreted. The obligation to consult is triggered if the employer is proposing to dismiss 20 or more members of staff over a 90 day period for "a reason not related to the individual concerned". But which side of the line do dismissals triggered by the expiry of a fixed term contract fall?
The Court of Session has ruled that in most cases the non-renewal of a fixed term contract will amount to a dismissal which is for a reason relating to the individual concerned. That is because it thought that the decision not to renew a fixed term contract will almost inevitably arise from the particular circumstances of the employee concerned – for example his or her decision to undertake limited teaching duties or to cover the maternity of sick leave of another employee.
The possibility of a dismissal of this nature falling within the statutory definition was not however completely excluded. For example where an employer had strategic business reasons for allowing a group of fixed term contracts to expire when in normal circumstances they would have been renewed, the resulting dismissals could have amounted to redundancies for collective consultation purposes.
This appeal decision will therefore need to be studied carefully by any employers still dealing with historic disputes with former fixed-term employees about the scope of collective consultation. However it will not be relevant for any redundancies that were proposed from 6 April 2013 onwards. At that point amending regulations came into effect making it completely clear that the expiry of a fixed-term contract at its agreed termination point falls wholly outside the scope of the collective redundancies legislation.