The European Union has passed a range of directives prohibiting discrimination at work over the 40 or so years that Ireland has been a member and their transposition into domestic legislation has had a significant impact on workplaces across the State. 

These vary from the nine discriminatory grounds outlawed under the Employment Equality Acts 1998 – 2007 namely; gender, civil status, family status, age, disability, race, religious belief, sexual orientation and membership of the Travelling Community to the array of legislation that attempts to ensure that part-time, fixed-term and agency employees are not treated less favourably than their full time or permanent colleagues. 

A critical point to understand in terms of presenting or defending a discrimination case is that the Court of Justice of the European Union (and its predecessor the European Court of Justice) has made it clear in a long succession of rulings that measures adopted by employers that are discriminatory in principle may be objectively justified in practice. 

The test for demonstrating objective justification is now well established to the extent that it has been incorporated into some anti-discrimination legislation. A case in point in Ireland is the Protection of Employees (Fixed-Term Work) Act 2003, which transposes the framework agreement on fixed-term work concluded by the EU social partners in 1999. 

This Act is now perhaps best known for setting a limit of four years on the amount of time an employee may serve under a series of two or more fixed term contracts. Infringement of this rule will in principle entitle the affected employee to a contract of indefinite duration (or permanent status). This is subject, however, to a very important exception. An employer is entitled to argue that it has objective grounds to justify the offer of a further fixed term contract or contracts beyond this notional limit. 

For this purpose, Section 7 of the 2003 Act adopts the wording handed down by numerous court decisions and provides that:

‘A ground shall not be regarded as an objective ground unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose’. 

The claimant’s complaint that she was entitled to a contract of indefinite duration from the respondent employer failed before a Rights Commissioner (RC) and she appealed that decision to the Labour Court. The claimant’s fixed term contracts with the respondent took the following form:

•  The claimant’s first contract ran from 1/9/09 to 31/8/12, a period of three years. During this time, she was employed to work as a part-time Post-Doctoral Researcher on a project for which the respondent had obtained external funding.
• During the latter end of this contract, she was additionally engaged under a further contract from 19/9/11 to 25/3/12 to act as a temporary part-time teaching assistant in the School of Chemistry, to replace a permanent colleague on a career break.
• A further fixed-term contract to work as a part-time University Teacher in the School of Chemistry was provided from 1/8/12 to 31/7/15. The stated reason for this contract was to cover extra teaching hours which had resulted from increased student numbers and additional funding was made available by the respondent for this purpose.
  
  It should be noted that this claim was lodged with the RC on 13th January 2014, even though the claimant was still working under a fixed-term contract as a teacher in the School of Chemistry at that time. By then she had accrued over four years’ service and was clearly in a position to argue that she should have been entitled to a contract of indefinite duration. The respondent on the other hand was relying squarely on demonstrating that it had objective grounds for offering a further fixed-term contract in August 2012 that exceeded the four year limit. Thus, this case very firmly focused on the question of what constitutes objective grounds.
  
  The claimant’s representative took issue with the respondent’s assertion in the contract that its purpose was to provide ‘additional teaching and academic related resourcing related to the substantial increase in 1st year and subsequent, Chemistry student numbers for which additional funding is available for this period only’.
  
  He argued that the respondent had a fixed and permanent need for the teaching of Chemistry and that no baseline for the numbers of students of Chemistry had been given in the context of the contract and that the contract had been funded from the respondent’s resources and not external sources. He submitted that the objective grounds relied upon by respondent employer must be ascertained by reference to the circumstances prevailing at the time the contract was offered and cannot be subsequently altered.
  
  He referred to a range of case authorities to support his arguments, including the case of Teagasc and McNamara (FTD 8/2013) which cited the Court of Justice view in that work undertaken for the purpose of meeting the fixed and permanent needs of employers should normally be undertaken on permanent contracts of employment and work for the purpose of meeting some temporary or transient need should normally be by way of a temporary or fixed term contract.
  
  He submitted that there was nothing in the correspondence relevant to the sanctioning of the contract that identified the deficit in 1st year teaching as a temporary phenomenon. Finally, he also argued that as a contract of indefinite duration does not confer any special protection, the possibility of redundancy arising from decreased activity did not render the use of a fixed term contract an appropriate or necessary method of meeting a legitimate objective of the respondent.
  
  The respondent’s representative on the other hand submitted that there were clear objective grounds for offering a further fixed term arrangement on 1st August 2012 and that these were outlined to the claimant by letter. He explained that in 2012 it took in an extra number of Chemistry students and it also set out to improve the retention numbers of such students, with the specific objective of boosting the number of Science graduates from the School of Chemistry, in accordance with Government policy at the time.
  
  The improved retention rate that followed meant that it would not be necessary to continue the increase in the intake of first year students. Thus, it was decided to put additional resources into the teaching of first year students for a defined period of time only, in this case for three years and that the post would be made redundant thereafter. He submitted therefore that from its inception, the post was planned and implemented as a fixed term post for a maximum period of three years to deal with a temporary situation and that it will not be renewed.
  
  DETERMINATION
  
  In a short determination, the Court examined the covering letter of 26 July 2012 provided to the claimant offering the final fixed-term contract. It noted that the respondent made it clear in this letter that additional funding was available to cover the teaching of increased numbers of Chemistry students for a limited period only and this would only last for the duration of the contract offered.
  
  It was also clear to the Court that the context for this offer was the Government decision to seek to increase the number of Science graduates across the country, including by improving retention rates of students. It concluded that this was much more that the mere generalisation contended for by the claimant and satisfied the test for objective justification required by the legislation. The appeal therefore failed.
  
  Full case decision:
  http://www.workplacerelations.ie/en/Cases/2014/December/FTD1422.html