Unlawful contracts 5 May 2017
An Employment Appeal Tribunal case involved sessional workers who had been recruited (innocently) during a recruitment freeze.
If someone is employed by the government in breach of the statutory provisions governing Civil Service recruitment, is the contract of employment void for illegality?
Yes, held the Employment Appeal Tribunal (EAT) in SoS for Justice v Betts and others , upholding the Justice Secretary’s appeal.
The case involved sessional workers in HM Prison Service, who had been recruited (entirely innocently) in breach of the statutory provisions governing Civil Service recruitment during a recruitment freeze. The legal backdrop is that Civil Service recruitment was governed by an Order-in-Council and then the Constitutional Reform and Governance Act 2010 , which provides for a mandatory merit-based recruitment to the Civil Service, with limited exceptions. The failure to follow the mandatory recruitment procedures set out in law rendered the contracts of employment void as ultra vires, outside the powers of the Secretary of State. Consequently, the sessional workers were not civil servants, nor were they simply employees of the Crown but not civil servants, but they were ‘workers’ under the Employment Rights Act . There was no residual power for the Crown to recruit employees other than on the statutory basis of fair and open competition as civil servants. The EAT noted the important public safeguard of an open merit-based recruitment process of those best qualified to serve, and to preserve the independence of the Civil Service.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Definition of Worker 10 May 2017
Can a junior doctor come within the extended definition of ‘worker’ for whistleblowing purposes, even if he already falls within the scope of the traditional definition of ‘worker’ because he is employed by an NHS Trust?
Yes, held the Court of Appeal in Day v Health Education England , even though the extended definition of worker at s. 43K(1)(a) ERA 1996 expressly provides that it only applies when s.230(3) ERA 1996 does not.
The Court of Appeal applied a purposive construction of Part IVA ERA 1996, and held that the phrase: 'as against a given Respondent' should be implied into s.43K(1) ERA 1996. Accordingly, a s.230(3) worker can also be a worker within the extended definition in relation to another employer, introducer or end-user. The Court of Appeal held that the extended concept of employer at s.43K(2)(a) ERA 1996 could apply to Health Education England (the national training body), as it was possible that both the NHS Trust employing the junior doctor and Health Education England could substantially determine the terms on which a junior doctor was engaged. Finally, the Court of Appeal held that it was not appropriate for the issues of worker and employer status to have been effectively determined by an employment tribunal at a Preliminary Hearing listed to hear a strike out application made by Health Education England. The determination of both issues required the employment tribunal to make findings of fact, and indeed the employment tribunal at the strike out application had been shown some limited documentary and witness evidence. The appropriate procedure was a Preliminary Hearing listed to decide a preliminary issue, and both parties should have an opportunity to adduce evidence at that hearing. The draft Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2017 , which will be made pursuant to s.49B ERA 1996 and are currently subject to consultation, will expressly prohibit 'discrimination' by an 'NHS employer' - including Health Education England - because a job applicant has previously made a protected disclosure, or appears to the prospective employer to have done so.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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