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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Department for Work and Pensions v Webley [2004] EWCA Civ 1745 (21 December 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1745.html Cite as: [2005] ICR 577, [2004] EWCA Civ 1745, [2005] IRLR 288

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
EAT/0033/04

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2004

Lord Justice Wall :

Introduction

1. On 18 March 2003, the respondent to this appeal, Mrs. Atasha Webley, issued a form IT1 in the Employment Tribunal at Stratford in East London. Her complaint was that the appellant, the Department of Work and Pensions (the Department) had discriminated against her as a fixed-term employee by treating her less favourably than a comparable permanent employee, in breach of regulation 3(1)(a) or 3(1)(b) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the regulations). The less favourable treatment alleged by Mrs. Webley was the termination of her employment before a period of 52 weeks had elapsed. This has been referred to throughout the argument as " the 51 week rule".
2. In its form IT3 the Department stated that; (1) it was not required under the regulations to convert a fixed-term contract into a permanent contract; (2) the fact that Mrs. Webley had been employed under a fixed-term contract did not involve less favourable treatment as regards the terms of her contract under regulations 3(1)(a); and (3) the expiry of a fixed term contract did not involve subjecting Mrs. Webley to a detriment within regulation 3(1)(b).
3. There is no dispute on the facts, and the case accordingly raises a pure point of law, which was heard as a preliminary issue by Mr. Ian Lamb, a regional chairman of Employment Tribunals sitting alone at Stratford on 27 October 2003. In his reserved decision, promulgated on 11 November 2003, Mr. Lamb formulated the issue in the following terms:

…. whether the non-renewal of a fixed-term contract is capable of involving less favourable treatment within regulation 3(1)(a) or 3(1)(b) of (the regulations).

4. For reasons, which will become apparent, I think it unfortunate that the preliminary issue was phrased in this particular way. In any event, it has provoked a difference of opinion. Mr. Lamb answered the question in the negative, and dismissed Mrs. Webley's claim. Mrs. Webley appealed to the Employment Appeal Tribunal (EAT) and on 24 March 2004, HH Judge Peter Clark, sitting alone, allowed her appeal. He laid an emphasis on the word "capable" in Mr. Lamb's question, and answered it: " 'Yes' or possibly 'it depends'". He accordingly set aside Mr Lamb's decision and directed that Mrs. Webley's application proceed to a full merits hearing before a differently chaired three member Employment Tribunal.
5. The Department now appeals to this court, pursuant to permission given by Mummery LJ on 13 May 2004.

The facts

6. Mrs. Webley was employed by the Department from 4 February 2002 until 17 January 2003 as an administrative officer on a series of short, fixed-term contracts. Mrs. Webley worked at the Leyton Job Centre. She undertook what she describes as general administrative duties. In particular she matched jobseekers with interviews for work. There is no suggestion that she carried out her work in anything other than a competent and conscientious fashion.
7. We have Mrs. Webley's appointment letter in our papers. It is dated 7 March 2002. It describes the post being offered to Mrs. Webley as "a short-term temporary (non-permanent) appointment from 4 February 2002 to 3 May 2002", a period of three months. The appointment is expressed as having been made under Article 6(1)(a) of the Civil Service Order in Council 1995 (the Order in Council). This permits an exception to the general rule contained in Article 2(1)(a) of the Order in Council that appointments in the Civil Service must be made "on merit on the basis of fair and open competition". The exception is permitted in cases where "the total period of service does not exceed five years and the appointment is justified by the needs of the Service". I will return to the terms of the Order in Council later in this judgment.
8. Mrs. Webley's appointment letter also says: -

If your services are required beyond the date mentioned above you may be offered an appointment for a further period as long as your total period of temporary (non-permanent) employment does not exceed 9 months. If exceptionally your appointment can be extended, you will be advised in writing.

9. In the event, Mrs. Webley's appointment was extended beyond the initial three-month term. However, by letter dated 10 December 2002, the Department informed Mrs. Webley that: -

Your temporary (non-permanent) appointment was due to end.

It has now been agreed that because there is a continuing need for your services, your temporary (non-permanent) appointment will be extended to 17 January 2003, which will be your last day of service.

Should it be necessary to terminate your appointment before the above date, you will be notified in writing and will receive the requisite period of notice. If exceptionally your appointment can be extended you will be advised in writing.

The extended appointment is subject to the same terms and conditions of service as those detailed in your original appointment letter and written statement.

10. The appointment was not, however, extended, and Mrs. Webley's appointment came to an end on 17 January 2003.
11. Mrs. Webley formulates her complaint in her form IT1 in the following way: -

Whilst I was serving a period of notice given by my employer there were other employees commencing new temporary employment contacts at Leyton Job Centre. Some of these employees undertook the very same work I had been undertaking.

My employer did not give me a reason for the termination of my temporary contract, however I am aware that comparable permanent employees in Leyton Jobcentre were not given notice of termination.

I believe I have been treated less favourably compared to comparable permanent employees working at Leyton Jobcentre of the same grade and carrying out the same or similar duties to myself. Permanent employees would not have had their contracts terminated at 51 weeks.

I believe that the treatment of me is unlawful and that I have suffered a detriment contrary to (the regulations).

12. It is, I think, important to note that the only act of less favourable treatment amounting to discrimination alleged by Mrs. Webley is the fact that her contract was terminated at / not renewed after 51 weeks. Furthermore, before us, her case was argued exclusively under regulation 3(1)(b) and not under regulation 3(1)(a). It is to the regulations, therefore, that I now turn.

The relevant statutory material

13. The regulations were made pursuant to section 45 of the Employment Act 2002 (the 2002 Act) and are the domestic implementation of the European Union Council Directive 99/70 of 28 June 1999 concerning the framework agreement on fixed-term work. The framework agreement recognises that some people will be employed on fixed-term contracts, rather than contracts of indefinite duration. It is an important element of the Department's argument in the instant case (and not, I think, disputed on Mrs. Webley's behalf) that there is nothing of itself unlawful about such fixed term employment contracts. This is made clear by paragraphs 6, 7 and 8 of the General Considerations within the framework agreement itself. On this point, it is, I think, necessary only to refer to paragraph 8, which states that "fixed–term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers".
14. The purpose of the Directive, expressed in broad terms, is twofold. Firstly, it is to ensure that during the currency of fixed-term contracts, fixed-term employees should not be treated less favourably than comparable permanent employees. Secondly, it is to ensure that employees are not abused by employers using successive fixed-term contracts. These two objectives find expression in clause 1 of the framework agreement, which states: -

The purpose of the framework agreement is to:

improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

These principles are further identified in clause 4 (principle of non-discrimination) and clause 5 (measures to prevent abuse).

15. Section 45 of the 2002 Act requires the Secretary of State to make regulations to ensure that fixed-term employees are not subject to less favourable treatment (section 45(1)(a)); and to prevent abuse arising from the use of successive periods of fixed-term employment (section 45(1)(b)).
16. A fixed term contract is defined by regulation 1(2) as

…a contract of employment that, under its provisions determining how it will terminate in the normal course, will terminate -

(a) on the expiry of a specific term,

(b) on the completion of a particular task, or

(c) on the occurrence or non-occurrence of any other specific event other than the attainment by the employee of any normal and bona fide retiring age in the establishment for an employee holding the position held by him ….

In the same regulation, "a fixed-term employee" is an employee employed under a fixed-term contract, and a permanent employee is defined "as an employee who is not employed under a fixed term contract".

17. Part 2 of the regulations is headed RIGHTS AND REMEDIES. Regulation 3 is headed Less favourable treatment of fixed term employees. The relevant provisions of regulation 3 for present purposes are the following:

(1) A fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee –

(a) as regard the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer…..

(3) The right conferred in paragraph (1) applies only if –

(a) the treatment is on the ground that the employee is a fixed-term

employee, and

(b) the treatment is not justified on objective grounds.

18. Regulation 6 set out provisions against victimisation, and regulation 7 gives the employee the right to apply to an employment tribunal. Regulation 8 deals with successive fixed-term contracts and provides that contracts purporting to be fixed-term contracts, but which have been renewed and extend over a total period of 4 years, are to be treated as contracts of indefinite or permanent duration, unless continued employment on a fixed-term contract is objectively justifiable.

The reasoning of the Regional Chairman

19. Mr. Lamb accepted the Department's submission that: -

the necessary meaning of regulation 3 is that a term of the contract of employment of a fixed term employee, which defines the duration of the contract, is precisely the provision which defines the employee as a fixed term employee. It is that status, thus defined, which gives rise to the right to complain of less favourable treatment than a comparable permanent employee, but that comparison cannot possibly include reference to that duration provision. It is not a meaning of regulation 3 which can possibly have been intended by Parliament. The regulations assume the existence of at least two categories of employee, fixed term and permanent.

20. Mr. Lamb accordingly upheld the Department's objection and dismissed the claim.

The reasoning of the EAT on Mrs. Webley's appeal

21. In the EAT Judge Peter Clark plainly did not think that the case should have proceeded by way of a preliminary issue. He began his judgment by stating:

This case raises, once more, the appropriateness or otherwise of identifying for initial determination a preliminary issue in Employment Tribunal proceedings.

22. This approach led Judge Clark to re-define what he described as "the real issues between the parties in a series of six questions. These were: -

(1) was Mrs. Webley employed under a fixed-term contract, is (sic) so she was a fixed-term employee within the meaning of regulation 1(2). That is common ground.

(2) that being so, was it a term of her contract that she was subject to the 51-week rule?

(3) if so, was that term applied to a permanent employee, as defined in regulation 1(2)?

(4) if not, was Mrs. Webley less favourably treated than her permanent comparator, as defined in regulation 2, for the purposes of regulation 3(1)(a)?

(5) alternatively, was she subjected to a detriment by the application of the 51-week rule to her and not to a comparable permanent employee (regulation 3(1)(b))?

(6) if she was subjected to less favourable treatment within the meaning of regulation 3(1)(a) or (b)

(a) was that treatment on the ground that Mrs. Webley was a fixed term employee and

(b) was the treatment justified on objective grounds? See regulation 3(3)?

23. Judge Clark did not attempt to resolve the issues he had raised, but contrasted them with the preliminary issue as identified by Mr. Lamb. He then turned to the principal submission made on behalf of the Department: -

18. (Mr Lewis) argues that Mrs. Webley's claim, in essence, comes down to a complaint that whereas her fixed-term employment was time limited by the 51 week rule, a permanent comparator's employment was not so limited. In other words, the less favourable treatment complained of was the very difference between Mrs. Webley and her comparator which gives rises to this anti-discrimination legislation. That is not a difference, he submits, against which the regulations provide protection.

19. I see the force of that submission, although I accept Miss Tether's point that Mrs. Webley is not here claiming the right to permanent employment under the regulations, however, I return to the preliminary issue as formulated in this case.

20. The short answer to the question whether the non-renewal of a fixed term contract is capable of involving less favourable treatment within regulations 3(1)(a) or 3(1)(b) is, as it seems to me, either "Yes" or possibly "it depends".

21. Non-renewal of a fixed term contract, amounting to dismissal, may constitute in part the detriment of which an Applicant complains, however that does not answer the question, was there less favourable treatment when the relevant comparison is made, because the permanent employee does not, by definition (see Regulation 1(2); 'permanent employee means an employee who is not employed under a fixed-term contract) have as a term of his contract a fixed-term duration. That question will depend, on the facts of the present case, on whether the 51-week rule constituted a term of the fixed-term employee's contract but not that of a permanent employee. Alternatively, whether the application for that so called rule to the Applicant and not the permanent employee constituted a detriment suffered by the Applicant. If either be the case, did that amount to, less favourable treatment within Regulation 3(1) and if so then the 2 questions raised by Regulation 3(3) arise for determination.

22. Thus the non-renewal of the fixed term contract is capable of involving less favourable treatment depending on the facts and circumstances of the case and the answers to the questions, which then arise for determination.

23. The learned Chairman, however, dismissed the Applicant's complaint. It must follow because this was the hearing of a preliminary issue, that he answered the question posed in the negative, although he does not say so in terms. That, in my judgment, is plainly wrong. It simply cannot be said that the non-renewal of a fixed-term contract is incapable of involving less favourable treatment within Regulation 3(1)(a) or (b), otherwise an Applicant whose employment ends on non-renewal of her fixed term contract would invariably be precluded from bringing a claim under the Regulations. Take the claim of Mrs Whiffen (this is a reference to Whiffen v Milham Ford Girls School [2001] ICR 1023, hereinafter called Whiffen's case and discussed below). Assume that she had been employed under a succession of fixed-term contracts totalling less than 4 years (cf regulation 8 of the regulations). Her complaint was that she had not been considered for redundancy under the employer's selection procedure because she was a fixed-term employee. Put in the context of these Regulations, could it be said that the non-renewal of her fixed-term contract was incapable of involving less favourable treatment in those circumstances? In my judgment the answer is plainly "No".

24. This case demonstrates, it seems to me, the dangers formulating a preliminary issue which, rather than representing a short-cut, unnecessarily delays resolution of the real issues in the case and adds expense to the litigation.

The Department's case in this court

24. Before us, Miss Elizabeth Slade QC and Mr. Clive Lewis, for the Department, went straight to what they submitted was the critical point in the case, and which had succeeded before Mr. Lamb but had been rejected by Judge Clark. It was common ground, they argued, that Mrs. Webley's employment on a fixed-term contract was lawful. It followed that if the less favourable treatment was that asserted by Mrs. Webley, then the only way it could be addressed was to remove the limit on the duration of the fixed-term contract. In other words, the only way of eliminating the discrimination would be to convert the fixed-term contract into an indefinite or non-time limited contract. That, however, would involve the abolition of fixed-term contracts. It was, Miss Slade submitted, perfectly clear that neither the regulations nor the Directive sought to abolish the distinction between fixed-term work and permanent work, but only to eliminate differential treatment during the currency of a fixed-term contract.
25. Miss Slade submitted further that Judge Clark had fallen into error (a) by redefining the preliminary issue, notably in posing an erroneous question (3) (set out in paragraph 22 of this judgment); and (b) by failing in paragraph 19 of his judgment to address the submission from the Department which he had identified in paragraph 18.
26. Furthermore, they argued, Judge Clark had not addressed the preliminary issue in the context in which it had been addressed to him. He had misled himself by his reference to Whiffen's case, where the issue was one of indirect sex discrimination. What the preliminary issue in the instant case was designed to address was the situation where the only act of less favourable treatment alleged was the failure / refusal of the employer to extend or renew the contract. The question was: could that alone amount to less favourable treatment within regulation 3(1)(a) or (b)? By interpreting the preliminary issue by reference to hypothetical facts; by importing concepts of sex discrimination; and by emphasising the word "capable", Judge Clark had misinterpreted the issue, and had imported into it irrelevant features unrelated to a proper construction of regulation 3(1)(b) as applied to the facts of this case.
27. Miss Slade further pointed out that the Department's policy in employing certain persons on fixed-term contracts was governed by the Order in Council and the Civil Service Commissioners Recruitment Code (the Code). Both were lawful and in accord with the regulations. The 51-week rule for fixed-term employees was perfectly proper. In so far as it might be argued that it had the consequence of preventing fixed-term employees from claiming before the Employment Tribunal that their dismissal had been unfair within Part X of the Employment Rights Act 1996 (ERA 1996) because they would not have been continuously employed for a period of a year (ERA 1996 section 108(1)), Miss Slade pointed out that the same consideration applied to employees on permanent contracts who were dismissed before the end of the first year of their employment.

The case for Mrs. Webley

28. Faced with these formidable arguments, Mr John Hendy QC and Miss Melanie Tether countered that the Department's failure to extend or renew Mrs. Webley's contract was dictated by its adherence to the 51-week rule, which operated despite the fact that the Department had a continuing need for Mrs. Webley's services. This was demonstrated by the fact that the Department was continuing to engage other short-term employees at the very time Mrs. Webley was coming to the end of her fixed term. The decision not to extend / renew her contract of employment resulted in Mrs. Webley's dismissal. That, they argued, was plainly "an act, or deliberate failure to act" within regulation 3(1)(b). Mrs. Webley thereby suffered a detriment – she was dismissed.
29. The plain purpose of the 51 week rule, they submitted, was to prevent short-term employees obtaining rights, such as the right to claim unfair dismissal under Part X of ERA 1996, for which the threshold of one year's continuous employment (to which I have already referred) was required. The 51 week rule was not applied to permanent employees: Mrs. Webley was thus deprived of the opportunity to be offered further employment under further fixed-term contracts when there was plainly a need for her services. A permanent employee whose services were still required would not have been dismissed after a total of 51 weeks' service.
30. In these circumstances, Judge Clark had been right to hold that the failure to renew a fixed-term contract when it expires was capable of constituting less favourable treatment. Were it otherwise, fixed term employees would have no effective protection from being dismissed by their employers in circumstances in which a permanent employee would not be dismissed.
31. Reliance was placed by Mr. Hendy and Miss Tether on the decision of this court in Whiffen's case. Mrs. Whiffen was a teacher who had been teaching at a school for five and a half years under a series of fixed-term contracts. The school made redundancies, and did not renew her contract. It adopted a policy of dispensing with the services of teachers on fixed term contracts before embarking on a redundancy selection process. Mrs. Whiffen made a complaint of indirect discrimination under the Sex Discrimination Act 1975. She asserted that the need to be a permanent employee in order to enter the redundancy pool discriminated against women, since the proportion of women who could comply with the condition was considerably smaller than the number of men who could comply. That argument succeeded in this court.
32. By analogy, Mr. Hendy and Miss Tether argued that if the Department's construction of regulation 3(1)(b) was correct, Mrs. Whiffen would have no remedy under the regulations, since the school's discriminatory redundancy policy took effect through a decision not to renew her fixed-term contract after it had expired.
33. Mr. Hendy and Miss Tether referred us to a document published by the Department of Trade and Industry entitled: Fixed-term work – a guide to the regulations. They recognised, as indeed the Foreword to the guide recognises, that the booklet did not have statutory force and gave general guidance only. The passage on which they nonetheless relied stated: -

Similarly, the fixed-term employee could be subject to disadvantages which are not imposed on the permanent employee. Examples: where fixed-term employees are dismissed, or selected for redundancy, purely because they are fixed-term, or where permanent members of staff are given better promotion opportunities than fixed-term staff.

34. Mr. Hendy also took us to the decisions of the European Court of Justice (ECJ) and the House of Lords in Preston and others v Wolverhampton Healthcare NHS Trust [2001] 2 AC 415 and 455, and in particular to the ECJ's affirmative answer at [2001] 2 AC 452-3 to a question posed to it by the House of Lords as to whether or not community law precluded a procedural rule which required an employee engaged on a series of short term contracts to make a claim for membership of an occupational pension scheme within six months of the end of each contract of employment to which the claim related, where there had been a stable relationship resulting from a succession of such short term contracts. This demonstrated, it was argued, that successive intermittent contracts of employment could give rise to a stable employment relationship. I did not understand this latter point to be contentious.

Discussion

35. Moderately and skilfully as the arguments for Mrs. Webley were advanced, there is, in my judgment, simply no answer to the submissions advanced by Miss Slade and Mr. Lewis. In my judgment, those arguments are determinative of this appeal.
36. Mrs. Webley had – inevitably and properly - accepted in her counsel's skeleton argument for this appeal, that it was not her case that the Department was obliged to convert her contract into a permanent contract; nor was she complaining about that fact that she was employed on a fixed term contract. Once it is accepted, as it must be, that fixed-term contracts are not only lawful, but are recognised in the Preamble to the Directive as responding, "in certain circumstances, to the needs of both employers and workers", it seems to me inexorably to follow that the termination of such a contract by the simple effluxion of time cannot, of itself, constitute less favourable treatment by comparison with a permanent employee. It is of the essence of a fixed-term contract that it comes to an end at the expiry of the fixed-term. Thus unless it can be said that that entering into a fixed-term contract is of itself less favourable treatment, the expiry of a fixed term contract resulting in the dismissal of the fixed-term employee cannot, in my judgment, be said to fall within regulation 3(1).
37. Similarly, the fact that the termination of the contract by effluxion of time results in the dismissal of the fixed-term employee cannot, of itself, represent a detriment within regulation 3(1)(b). The same argument applies. The termination of the contract is an inevitable consequence of it being for a fixed term.
38. In my judgment, the regulations achieve the two purposes identified by the Directive. They establish the principle of non-discrimination and the need to protect the fixed-term employee from the abusive use of a succession of fixed-term contracts. It cannot, I think, be suggested that the Department is guilty in any way of abusing the system by applying a policy of 51 weeks maximum employment for fixed-term workers. It is, in my judgment, able to justify that policy by reference to both the Order in Council and the Code.
39. The principle set out in paragraph 2 of the Order in Council is that as a general rule, and except as expressly provided in the Order, nobody is to be appointed to a situation in the Civil Service unless:

(a) the selection for appointment is made on merit and on the basis of fair and open competition; and

(b) the person appointed satisfies such qualifications as may be pescribed…

40. The Code, however, recognises that there need to be exceptions to the general policy, and the question of short-term appointments is addressed in paragraph 2.7 to 2.13 of the Code. Paragraph 2.7 reads: -

In order to give managers flexibility to meet genuine short term needs sensibly and economically, recruitment to appointments of up to 12 months (for example, casual, fixed term, secondment, provisional) may be carried out without the full fair and open competition process. But this can be done on a routine basis only for short-term contracts up to a maximum of 12 months. If there is any possibility that staff may be needed for more than12 months, fair and open competition should be used at the outset. (When calculating the 12 months' total period of service, separate periods of service should be aggregated if they relate to the same appointment. Periods of service without a break between successive appointments should be aggregated.)

41. In my judgment, there is nothing in the Civil Service recruitment policy, which is either unlawful or irrational, nor did I understand Mr. Hendy to argue to the contrary. Critical to it is the fact that there are the two types of contract. Mr Hendy and Miss Tether were, in my judgment right, in the light of the Policy document, and the commitment to open competition for permanent posts, to eschew any suggestion that the detriment Mrs. Webley suffered was the inability to convert her fixed-term contract into a permanent contract. Both contracts have their place, but they are distinct.
42. The threshold for abuse comprising the successive use of fixed-term contracts has been set by the regulations at four years – see regulation 8. Mr. Hendy was unable to identify any magic in that term, but equally was constrained to accept that - for example – a dismissal taking place at the conclusion of a contract of employment lasting 3 years and 11 months would be lawful, although the employee would, of course, by then have been employed for a sufficient period to have the right to apply to an Employment Tribunal claiming that the dismissal was unfair. By like token, however, it seems to me that there can be nothing unlawful about the 51-week rule.
43. If the policy behind the use of fixed-term contracts is lawful, therefore, and if the contracts themselves are lawful – as they plainly are, of what can any less favourable treatment within regulation 3 comprise? Mr. Hendy did not seek to bring Mrs. Webley within regulation 3(1)(a), and rightly so. The phrase "the terms of his contract" within regulation 3(1)(a) are plainly designed to deal with what Miss Slade agreed could be described as "nuts and bolts" – the day-to-day working conditions identified at considerable length in the letter of engagement dated 7 March 2002.
44. So one returns to regulation 3(1)(b), and to the same point. If the only act of which Mrs. Webley can complain is that the Department has failed or refused to extend the term of her contract beyond 11 months, there can, for the reasons I have already given, be only one answer to the question posed in the preliminary issue formulated by Mr. Lamb. That answer to that omnibus question must be "no".
45. With great respect to Judge Clark, who is very experienced in this field, what it seems to me he has done is to import into the terms of the preliminary issue as identified in relation to regulation 3(1) arguments relating to other forms of discrimination. Whiffen in my judgment, does not assist Mrs. Webley. It was not a case under regulation 3(1)(b): it was a case of indirect sex discrimination. The question for decision in the instant case is not whether or not the termination or refusal to extend a fixed-term contract is capable of constituting an act of sex or race discrimination. The question is whether the termination or refusal to renew of itself is capable of constituting less favourable treatment under regulation 3(1)(b). Judge Clark, it seems to me, asked himself the wrong question: alternatively, by emphasising the word "capable" he took his eye off the ball and forgot that he was dealing exclusively with regulation 3 as applied to the undisputed and limited facts of this case.
46. In these circumstances, it might have been preferable if the preliminary issue had been formulated either by reference to the facts of this case, or by the insertion of words such as "where the only matter of which the applicant complains is that her employer has refused to renew or extend her fixed-term contract ……".

Conclusion

47. Be that as it may, however, I am in no doubt that Mr. Lamb reached the right conclusion. I would therefore allow the appeal and dismiss the originating application.

Lord Justice Jacob:

48. I agree.

Lord Justice Ward:

49. I also agree.

ORDER: Appeal allowed, the order of the Employment Appeal Tribunal set aside and the originating application presented by the respondent to the Employment Tribunal on 18^th March 2003 dismissed; the respondent to pay the appellant's costs, such costs to be subject to a detailed assessment if not agreed; permission to appeal to the House of Lords refused.

(Order does not form part of approved Judgment)