Should I take this to employment tribunal?

[Hubbard93]

I’ve spoken to ACAS multiple times and explained my situation, entirely and in full. Each advisor was sure that I have a case to take tribunal under the Fixed Term Employees (Prevention of Less Favourable Treatment), and has given me advice on grievance, early conciliation and that they would support me in my claim to tribunal.

I contacted a solicitor by recommendation and provided the same information, who read my case details for free. They told me there was no case as I have less than 2 years service so there was no case to bring. I phoned ACAS AGAIN, as this felt like a major blow, and ACAS were 1 million percent sure that a claim under the above regulations could be bought at any length of service. This has also been the result of my own research too.

I then contacted my Union solicitor, who from the conversation it seemed like really wasn’t versed at all in the legislation, kept asking me to repeat the legislation I was referring to, and kept asking me if I was referring to discrimination. I stated that I was referring to the above regulations, and they just replied that if I feel I’ve been treated unfairly I can only claim for discrimination under a protected characteristic (which is not my case).

At this point, I’ve lost it. What’s the point of having legislation you can never enforce?

So AGAIN, after nearly sacking the whole thing in, I’ve called ACAS who informed me again that my employers behaviour has breached the regulations and my claim would be for breaching the regulations and for “detriment” - nothing to do with protected characteristics. He was very confident and even started going through early conciliation etc with me - he couldn’t be more sure.

Now I have raised a grievance my employer is acting very shady already (started to create evidence), and I know from what has happened, the reading of the legislation and conversations with ACAS that I have been treated unfavourably to a comparable permanent employee.

My question - what the hell!? How would you read into this situation? I can book an hour with an Irwin Mitchell solicitor and have been quoted £350-500 PER BLOODY HOUR.

Would you pay to query AGAIN (and it would really be to have a Frank conversation again with someone - and one I really can’t afford right now) or would you trust ACAS advice (given on more than 1 occasion) and potentially (depending on any outcomes beforehand) represent yourself at tribunal? A lot of my HR friends also think I have a case, so I am miffed by the different responses from the first 2 solicitors

Do you have legal cover with your household insurance?

I'd walk away entirely actually.

What do you want from this?

It sounds difficult. If 2 solicitors thought they couldn’t represent you I think you’d find it very unlikely to win the case by yourself.

We’re living at my parents house whilst saving for a deposit so I don’t think this would cover us. It feels completely absurd to think I’ve been given bad advice, but in this situation one of the parties has to be wrong. I could try the Union number a call again, to get through to another solicitor.

The 2 solicitors gave conflicting reasons, the second one seemed absolutely crap tbh, whereas every person at ACAS has felt on the ball and consistent - not just because that’s what I want to hear 😂 but is also consistent with my research and the regulations.

I don’t just want to think I’m Miss So Confident and then walk straight into a legal loophole or something lol.

I’ve been denied the opportunity to apply for permanent vacancies, which means I’m going to entirely lose my job in the restructure. I was told I don’t have the right because I’m under 2 years service, but could have one if there were any left over.

If I lose my job, I can’t claim unfair dismissal because of having less than 2 years service.

I am currently still in service. Under the legislation, an employer cannot prevent a fixed term worker from accessing opportunities to permanent employment, or make a person redundant on the basis of their fixed term status. It is also very clear that the length of service has no bearing on this legislation - you can claim prior to 2 years service.

This is important for me, because aside from this, I love my job and I’m finding it hard to match my salary and benefits (work from home) elsewhere. I want the opportunity to apply for these jobs and not be demoted or redundant because I’m fixed term.

This is a complicated area and will depend a lot of the specifics of how things have been structured.

You’ve put in a grievance, you can see where that goes before making any decisions about whether to take anything further.

Based on the limited information here - I agree with the solicitors. It is within the law to terminate fixed term contracts / those with less than two years service on the basis of financial cost savings during a redundancy situation. There is a difference between "opportunities to obtain permanent employment" and "protection during a restructure which will lead to staffing reductions". Where I work (exceptionally large public sector employer) it is not only lawful, it is policy.

I would point out that the people you ring on ACAS helplines are generally nothing more than call centre staff - they have no legal training or expertise, and so the advice can be sketchy or wrong. They CANNOT provide you with legal advice - they give advice on the law (which is different) and have get out clauses that their advice cannot be taken as legal advice or correct. They also do not support anyone to bring a case - they will only advise on the process to bring a case.

You are also making assumptions that if you forced the employer to include you in the process then you would be selected. That is a very large assumption. Quite apart from the fact that you may want to consider how great the job will be with managers who didn't want you and colleagues who will know that a permanent member of staff / friend lost a role because of you, they can change the selection criteria to, for example, score down people who work from home, or who have less service, or who have blue eyes, or are left-handed..... in other words, they can get the result the want anyway. I'm going to be very blunt - if they don't want you it is a matter of ease to find legal reasons to select you. I could do it in a heartbeat if I were so inclined.

This CIPD article, would suggest that an employer should not use somebody’s FTC status as a reason for redundancy, unless they can “justify it on objective grounds”. So OP have they provided you with their justification? If they haven’t then I would say they are in breach of the legislation you mention.

https://www.cipd.org/uk/knowledge/guides/fixed-term-contracts-guide/#summary-of-legal-rights-and-protections

Nevertheless it sounds like a very complex area that even the solicitors you have found don’t want to go near it. What is the outcome that you are looking for? Because I don’t think you are going to get a job out of it regardless.

Justifying on objective grounds could include giving permanent employees priority over the remaining jobs before the people on fixed term contracts with less than two years service. It’s a reasonable process and in all honesty if it were me I would focus on finding new employment. Pursuing any legal claim is unlikely to be a quick process and will only guarantee more stress and potentially more cost on legal fees than it’s worth. In a tribunal if you were successful, You would have to show that you had attempted to mitigate the situation by actively seeking other employment anyway.

They don't need to use the fact of a fixed term contract. They can justify it on cost grounds. Under two years service, no redundancy payment. Over two years service and the fixed term contract is irrelevant as they must follow a fair process for everyone regardless of contractual status. Fixed term contracts are really a thing of the past - in days of yore, when I was a stripling union rep, people did not qualify for redundancy at all no matter how many fixed term contracts they had had, even with no break between them. That is where the "you can ask for a permanent contract after 4 years" comes from - fixed term employees had few rights at all. That changed, if I recall correctly in the early 1990's - might even have been the late 80's. Since then redundancy pay attached to all employees with 2+years service. And most employment law rights extended to all employees with the relevant service.

The only things outstanding were pay and conditions type issues, with ftc employees oxygen being paid less, barred from certain benefits, etc.

Cost of redundancy is a very genuine criteria for selection. If someone under two years (regardless of contractual terms) costs nothing, and someone else with 7 years costs £xxxxx, then all things being equal, the employer is entitled to choose the person who costs nothing. That is what the solicitors know, and clearly ACAS hasn't factored in to their thoughts.

It is entirely lawful for an employer to "discriminate" on the grounds of length of service, and that is what they are doing. In certain restricted areas such discrimination may be discrimination on the basis of age, but this isn't one of them as having less than two years service is not specifically and provably age related.

Even if you have a case you might be better spending your time and energy looking for a new job.

You may have to compromise in some areas.

Just to add to the above which is really helpful and good advice, it's one thing to have a claim, another thing to get any money at the end of it.

If you "won" your claim the tribunal could find that it wouldn't actually have made any difference as you still wouldn't have been kept on & then no compensation would be due. Added to this, you'd need to mitigate your losses I.e. look for another job & any compensation would only ever be limited to the difference between old & new pay & benefits if any was awarded at all.

That's often the bit that ACAS just won't have experience of & won't necessarily think about in the same way as an employment solicitor.

I'd start looking seriously for a new job & put your energies into that tbh.

I'm an employment lawyer btw x

Agree that is a very expensive waste of your time and energy. Once you have less that two years services, any case will be impossible to win and expensive to pursue .
Dust off your cv and focus on that.

When does your fixed term contract end? Are they ending it early or ending it at the contractual end date?

@Hubbard93 ACAS is right the legal advice is incorrect. The two years service is irrelevant as you are not claiming unfair dismissal.

Under the fixed term prevention of less favourable treatment reg 3.2.c https://www.legislation.gov.uk/uksi/2002/2034/regulation/3/made you are entitled to (c)the opportunity to secure any permanent position in the establishment. More importantly Reg 3.6 you had the right to be informed of any vacancies.

My advice is to continue with the grievance, follow ACAS advice and drag your TU rep to meetings. Tell them to take notes and you will do the talking based on ACAS advice. As vacancies arise apply for them, this puts the onus on your employer to either progress your application or put in writing why you are not eligible to apply = evidence for you.

I am going to be honest, you do risk being dismissed for a spurious reason. They can also go through the motions of allowing you to apply, interviewing you and saying sorry not successful. They may not keep you on at the end of your fixed term. So you need a plan B, keep looking for a back up job.

You just need to log a case with ACAS. No fee and they can work it out.

Forgetting the legal stuff, look at the actual facts. If they wanted to keep you they'd be finding a way to do that. They've chosen not to, which probably means they don't want to... But you could've tried to get one of the left over jobs, best case scenario.

Instead, you're looking for advice on technicalities - if they've got wind of your legal queries they'll be pissed off. They're obviously pissed off about the grievance.

I think the bridges are burned and neither you or they are happy and you're best off job hunting.

ACAS are not great tbh, not qualified lawyers for one thing. Not sure why you’d take their advice, when they won’t act for you per se but are independent, when a lawyer who presumably stood to make money out of your case told you it wasn’t a goer.

Under the legislation, an employer cannot prevent a fixed term worker from accessing opportunities to permanent employment, or make a person redundant on the basis of their fixed term status

you have missed an important bit off the top end of the explaining the legislation there - unless it can be objectively justified - it is not an unqualified right. Did ACAS tell you that?

I don't mean this unkindly but as an employer, we would be looking at ways of getting rid of you asap. To begin with - if we valued you we'd be looking for a way to include you in the restructuring - they are not and so you are trying to force your way into a recruitment process by threatening legal action - employer/employee relations do not often recover from that kind of behaviour - you've shown who you are - you are trouble, you'd make life difficult. We'd save ourselves a lot of trouble by getting rid of you before you hit 2 years. I think you would be better to focus on looking for a new job.

What do you actually want as an outcome?

By raising a grievance and going to tribunal, you are making yourself difficult and known as trouble. Do you really want to stay working somewhere where you've marked your own cards?

Tribunals are costly, time consuming and stressful. I would dust off your CV and focus on your next steps for your own sanity.

Like @Quveas this may be policy under redundancy situations. It is where I work too. If certain people are put at risk of redundancy in a restructure, any roles being advertised are either ring fenced for them to apply for (if they're new roles as a result of the restructure) or if they apply for existing vacancies they'll be given priority of they meet the essential criteria. People on FTCs wouldn't be considered.

This. Being blunt they don’t want you OP. Just move on for your own sanity.

OP I think you would vibe better spent putting your time into job hunting. It's expected in a redundancy that permanent employees with over 2 years service will have more access to applying for remaining roles

I think that you can do the two things at once.

Its clear that in this situation it’s unlikely that you’ll come out with the job you want. With under 2 years service they can end contract and you wouldn’t have much come back. So you need to look for a new role asap.

Secondly it does sound like they haven’t done everything perfectly so you can progress your grievance towards tribunal. Hopefully they’ll offer a settlement before you get to that stage and you can accept that rather than having to get as far as tribunal.