Dismissal - fair and open competition

Case ref: 11.1/feb 2006

Summary of case

Mr S worked for a large Government Department. Mr S was employed as a casual Admin Assistant in 1997. His contract was extended twice and in 1999 he was given a permanent contract.

On this contract he was temporarily promoted (TP) to Admin Officer and this arrangement continued until later in 2004 when his TP was reverted.

Mr S submitted a grievance over the way in which is TP was handled, and this appears to have initiated an investigation into the terms of his original appointment (which had already been investigated, apparently to the employer's satisfaction, upon the award of his permanent contract in 1999).

This investigation has now resulted in Mr S's dismissal - on the grounds that his original appointment was not the result of a fair and open competition in line with the requirements of the Civil Service Commissioners Code.

Advice Requested

The solicitor was asked to advise as to whether Mr S had a potentially successful unfair dismissal case and/or any other legal redress for the Department's actions.

Key Advice Provided by Thompsons

The solicitor described the Department's actions in this case as "outrageous".

The key passage from the advice letter was as follows: 

"In my view, there are reasonable prospects of successfully countering the Department's argument on the following grounds. Firstly, it is possible to argue that a failure to appoint an individual as a Civil Servant in accordance with the Civil Service Order in Council 1995 does not render the contract of employment void.

"A valid contract of employment still exists in such circumstances. The Civil Service Order in Council is mandatory on civil servants, and any civil servants involved in recruitment should follow both the code, and the associated recruitment codes. However, a failure to follow that does not render the appointment void - instead, it could lead the individual who did not make the appointment on the basis of fair and open competition liable to disciplinary proceedings/counselling. 

"Secondly if the above analysis is wrong and the initial appointment is void, then the other line of argument would be that if the contract continued for a period of say 12 months or more, (given that after 12 months, an individual has a right not to be unfairly dismissed), an implied contract of service will arise, in line with the arguments of the Court of Appeal in the case of Dacas v Brook Street Bureau (2004) IRLR 358, and or on the grounds of necessity.

"If not, an employee with 20 years undamaged service for example, could find themselves being dismissed, with no right to their pension, and no right to notice pay. Such a scenario is surely not credible. The words of Sedley LJ in the Dacas case, at paragraphs 70 to 72 come readily to mind and are attached as an Appendix to this advice letter.

"In short therefore, my view is that there are reasonable prospects of succeeding in an Unfair Dismissal Claim. I certainly have no hesitation in recommending that an unfair dismissal claim be submitted. However, you should note that the Dacas decision is currently being challenged in the Court of Appeal, in the case of Cable and Wireless v Muscat UK (see EAT/0661/04/LA - 25th February 2005 for the EAT decision in that case).

"The Court of Appeal is due to hear the appeal on 29th and 305th November this year. It may be sensible to suggest that upon the claim being submitted, and the ET3 being received, the case be stayed pending the decision of the Court of Appeal in Cable and Wireless, since that will potentially impact on the decision of the Employment Tribunal in Mr S's case."

Legal department comment

As you will see from the above, the solicitor was of the firm view that in the circumstances described, our member had a good claim for unfair dismissal. 

The legal department has knowledge of cases similar to the one described above and continues to liaise with Bargaining Unit officials and Thompsons about those claims.

Further information can be provided by the Legal Department if requested by any PCS representative. 

The Legal Department can also provide details of the comments made by Sedley LJ in the Dacas case as highlighted in the advice provided by Thompsons.

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