1. The Tribunal found that the collective consultation obligations applied to three of the four 'test case' FTC dismissals, as explained above. The reasoning of the Employment Judge can be summarised as follows.

1. From the outset of their respective legislative histories, domestic law and EU law regarding duties of collective consultation did not "march in step" (paragraph 34). The domestic legislation originally defined the range of circumstances giving rise to the duty to consult more narrowly than did the EU (paragraph 35). The 1975 Act went, however, further than the EU law required regarding the range of employees in respect of whom the duty to consult arose (paragraph 36). The domestic legislation had originally, under the 1975 Act, required consultation even where there was only one dismissal (paragraph 37). A reason for dismissal is a set of facts known to or beliefs held by an employer which causes him to dismiss and one reason may comprise several facts (paragraph 48). There is a presumption of redundancy and to rebut it, the Respondent required to show a reason that was personal to the dismissed employee, not merely a fact that was personal to him (paragraph 48). The expression 'for a reason not related to the individual concerned' was not clear and unambiguous. That was because it was inevitable that the reason for any dismissal will, in some way, relate to the individual concerned; in the case of redundancy the reason for dismissal might be the particular job done by the employee or some attribute of his such as length of service, disciplinary or sickness record and those were reasons relating to the individual (paragraph 49). If the expression was given too broad a meaning, that would undermine the scope of the protection afforded by the Directive (paragraph 50). A 'reason relating to the individual concerned' was where the reason was a close and direct one involving a reason that was personal to the individual, such as conduct or capability (paragraph 51).

1. The Employment Judge also had regard to the law prior to the UK's amendment, in 1993, of the definition of redundancy given in s.195 of TULRA. At paragraph 54, he said:

"54. On the law prior to that amendment, Natfhe is clear authority for the proposition that the duty to consult bites upon the dismissal of employees engaged on limited – term contracts. A question for the Tribunal is whether Parliament intended whilst broadening the range of dismissals that would fall within the collective consultation provisions, also to remove the protection of the collective consultation provisions from limited-term contract holders or, at least, from holders of limited- term contracts of the kind seen in the test cases identified to the Tribunal."

1. He observed, at paragraph 55, that it was open to the United Kingdom to exclude FTC's from the collective consultation regime (save in the case of early termination) but, under reference to the exclusion of FTC's for three months/twelve weeks or less, he added:

"In enacting the provisions of the 1975 Act, the United Kingdom extended the protection of collective consultation to those employed on fixed term contracts of a term of more than three months and to those employed on fixed term contracts for more than three months. Applying the canon of construction embraced in the expression "expressio unius est exclusio alterius" the stipulation of those limited – term contract holders who would be excluded from the right to collective consultation implies that other employees holding limited – term contracts were intended to be within the scope of the collective consultation provisions."

1. He then reasoned that Parliament cannot have intended, when it amended s.195 of TULRA so as to broaden the category of dismissals to which collective consultation obligations would apply also to narrow the range of employees entitled to protection (paragraph 56). The fact that the consultation obligations under the prior law in the 1975 Act applied to even a single dismissal and that that was a situation which continued for more than 2 years after the coming into force of TULRA undermined, he said, the suggestion that Parliament cannot have intended that there be consultation in respect of dismissals arising from the termination of FTC's (paragraph 58), provided the required number of dismissals were proposed.

1. Finally, the Employment Judge rejected any suggestion that when an employee is engaged under a FTC, he thereby consents to being dismissed at its expiry (paragraph 59) because the effect of the provisions of the 1975 Act and TULRA was to place FTC holders and employees on contracts of indefinite term, on the same footing. He added:

"Although an employee who enters into a limited-term contract does so on the basis that the employment may come to an end on the expiry of the fixed – term or the performance of the specific task, an employee who enters into a contract for an indefinite term determinable on notice does so on the basis that the employer has the right to discharge the contract by giving due notice. Whether engaged on a limited-term contract or an indefinite- term contract determinable on notice, the employee puts in the employer's hand the sword of termination and, in that sense, consents to termination."

1. Accordingly, the Employment Judge construed the statutory provisions as meaning that dismissal at the expiry of a FTC always triggered the duty to consult (subject to numbers and timescales).

1. In paragraph 60, the Employment Judge refers to the fact of FTC's having for a long time been used in research posts and to the general fact that "members of the research community enter into such arrangements in the full knowledge of the way the system works" but said that those features did not provide any reason to exclude them from the duty to consult. He added:

"Those factors could properly be taken into account in assessing ex post facto, whether the duty to consult had been discharged."

but offered no explanation of what he had in mind in that regard.

Submissions for the Respondent

1. Mr Napier submitted that the Tribunal had misunderstood and misapplied the relevant statutory provisions. In so doing, the Employment Judge had failed to ask himself the question posed by s.195, namely whether or not, as a matter of fact, the dismissals in the test cases were for reasons relating to the individuals concerned.

1. He pointed out that the appeal concerned not only researchers on FTC's but also FTC's where the employee was providing maternity or sick leave cover. The implications of the decision in the case were, accordingly, potentially very wide reaching. On the Tribunal's approach, the collective consultation obligations would be triggered in the case of, say, the employer in a large organisation who has no traditional redundancies in mind but might well have 20 or more maternity and/or sick leave cover FTC's expiring within a 90 day period; such an employer is unlikely, in such circumstances, to be alerted to the need to consult if he is to avoid being penalised. Similarly, such an employer could be caught out if the termination of a small number of maternity/sick leave FTC's in a 90 day period will, when added to a number of traditional redundancies, take the total proposed dismissals to over 20. That would, he submitted be incongruous, particularly since there was no apparent point in consulting for any of the statutory purposes in such circumstances. He referred to the above passage from AUT v University of Newcastle–upon–Tyne [1986] ICR 317 as acknowledging that it was unrealistic to apply the duty to consult to the case of researchers employed on FTC's and submitted that the case for unreality was even greater when it came to FTC's for maternity and sick leave cover.

1. Mr Napier submitted that the issue for the Tribunal was the correct application of sections s.188 and 195 of TULRA. Since, on the facts, at least one of the reasons for dismissal of each of the four employees was that they had accepted that the contract under which they were employed would come to an end at a specified time or on the occurrence of a particular event, the duty to consult could not apply; at least one of the reasons for dismissal related to them as individuals. It was sufficient, for the Respondent's purposes, that that be one of the reasons. section 195 did not require that it be the sole reason; if any one of a number of reasons related to the individual concerned, that took the dismissal outwith the ambit of s.188.

1. Mr Napier submitted that whilst the Employment Judge had correctly asked what was the reason for the dismissal, he had then, erroneously, put a gloss on the words of the statute by requiring that for s.195 purposes, the reason required to be personal to the individual and that, further, he had wrongly had in mind reasons relating to selection for redundancy which is not the same as the reason for the dismissal itself. He had wrongly considered that in a 'standard' redundancy, the reason for the dismissal relates to the worker himself; it does not. The reason for dismissal is the diminution in business etc.

1. In any event, he added, even if the Tribunal was correct and it was necessary to show a close and personal connection between the individual concerned and the reason for dismissal, that had been done. The fact that an employee has given his consent to the contract of employment ending at the appointed time/event was sufficient.

1. Further, the Tribunal erred in taking Natfhe as being "clear authority" for the proposition that the duty to consult applied, under the 'old' law, wherever employees were dismissed at the end of FTC's. The case was authority for nothing more than the proposition that such dismissal may have been dismissal for redundancy; whether or not that was the case depended on the particular facts and circumstances (cf. Terry v East Sussex County Council; North Yorkshire CC v Fay; Pfaffinger v City of Liverpool Community College). The Employment Judge's misunderstanding of Natfhe **was central to his reasoning and undermined it. He had failed to recognise that terminations of FTC's could arise in a variety of circumstances, not all of which would have fallen within the traditional definition of redundancy. The Employment Judge had also erred in reasoning that the Respondent's approach removed the possibility of the duty to consult ever arising where the dismissed employee was working under a FTC. It would, for instance, apply where dismissal by reason of the cessation of the employer's requirement to have the particular work carried out arose prior to the date for expiry of the FTC. Such a situation could occur if a particular department of a university in which a researcher on a FTC worked, were to close down.

1. Mr Napier turned to s.282 of TULRA and submitted that the Employment Judge had misunderstood its effect. It did not follow that where a FTC was for more than three months the duty to consult arose in every case. It all depended on the reason(s) for the dismissal; if any of them related to the individual concerned, the end of the FTC would not fall within the ambit of s.188, but if none of them did, then it would. There was no scope for the operation of the maxim relied on.

1. Mr Napier submitted that, having fallen into the above errors, the Tribunal wholly failed to consider the facts of these cases and ask whether or not the conditions set by s.195 were met. The Employment Judge was wrong to have been influenced by the prior statutory scheme which covered proposals to dismiss a single employee as redundant and wrong to have failed to appreciate that the termination of a FTC was not a crisis situation (see: EC Commission v UK per Adv Gen Van Gerven at paragraph 10). Separately, in saying that there was, given the usual notice provisions, as much consent by the employee to termination in the case of a contract for an indefinite term as there was in the case of a FTC, he had missed the point. It was not a matter of asking whether, objectively, it could be concluded that there was such consent; one required to ask what were in fact the reasons for dismissal. That the Employment Judge had failed to do and yet the facts showed that at least one of the reasons, being that these were employees who had agreed to enter into contracts which were, of their nature, for a finite period, related to them as individuals. As for his comments at the end of paragraph 60, there was no authority for any proposition that the unusual feature of applying the duty to consult in the case of expiry of FTC's could be reflected in any reduction of the relevant protective awards.

1. Turning to EU law, it was plain that the domestic law went further than was required by the Directive; it could, without non-compliance, have provided that s.188 did not apply to any FTC's at all. TULRA did not, however, do that. There was no need, in these circumstances, for any purposive construction under reference to the Directive.

1. In all these circumstances, the decision of the Tribunal could not stand, the appeal should be allowed and a judgment that s.188 did not apply to the test cases be substituted. If it was considered that there were not sufficient findings in relation to the cases of Doyle, Fife, and Kelly (in respect of whom evidence had not been led), the case should be remitted but only in respect of them.

1. For the claimant, Mr White accepted that the domestic legislation was more favourable to FTC holders than the Directive required (as was permitted by Article 5) and that that was not to say that some FTC holders were not protected by s.188. He accepted, for instance, that dismissal at termination of a FTC could be for a reason relating to an individual if the employee's performance during the period of the contract was unsatisfactory so that the employer decided not to renew it. What could not, however, be a reason relating to the individual was that he had signed a FTC.

1. He submitted that the reason(s) for the dismissals in the test cases did not, however, relate to the individuals concerned and they were, accordingly, protected. As a generality, by parity of reasoning with that which was applied by the European Court of Justice at paragraph 55 in the case of Commission of the European Communities v Portugal, *FTC's would have been covered by the Directive, had it not been for Article 1(2)(a). The exclusion in the domestic legislation, under s.282, required to be viewed in that context. By means of ordinary techniques of statutory construction, particularly the expressio unius* rule, it was evident that there was a presumption that FTC's for more than three months were covered by s.188.

1. Mr White sought to support the Tribunal's construction of Natfhe. He submitted that it showed that such contracts were covered 'as a class'. The defining characteristic of the class was that the employee had signed a FTC. That being so, the employer could not rely on the fact that the employee had done so as excluding him from the class. The Barras **principle4 applied viz. where an Act used a form of words upon which the court had previously pronounced, it may be presumed that Parliament intended the words to have that previously opined upon meaning in the enactment under scrutiny.

1. Mr White submitted that it was important to have in mind the relevant 'mischief' which was circumstances where a large number of people were losing their jobs. It did not matter if they or some of them were doing so in circumstances where they had been covering maternity leave or sickness absence.

1. He submitted that the earlier cases, prior to the current version of s.195 of TULRA were of no assistance.

1. Regarding the particular criticisms of the reasoning of the Employment Judge, Mr White submitted that his 'gloss' of 'direct and personal' was not objectionable although he accepted, to an extent, the criticisms of his consideration of potential reasons for selection for redundancy.

1. Otherwise, however, the reasoning of the Employment Judge was, he submitted, sound, subject to two matters. First, it was not correct to find that it was enough if one of a number of reasons related to the individual. He relied on a passage in Harvey on Industrial Relations and Employment Law at E-2527 where the editors expressed the view that the Directive provided for a focus on the predominant reason for dismissal. It was necessary that the main reason for dismissal related to the individual. Secondly, the Tribunal had thus wrongly accepted the Respondent's submission that for a dismissal to fall within s.188, it was necessary that none of the reasons for it related to the individual.

1. Finally, Mr White submitted, in support of a cross appeal, that the Tribunal was wrong to have excluded Ms Fife's case. Parties had agreed that she had been dismissed and the Employment Judge's reasoning plainly applied to her as well.

1. We are satisfied that the appeal should be upheld. The Respondent's submissions are well founded.

1. We do not accept the Employment Judge's reasoning. He has, we consider, fallen into error in several respects. First, underlying his approach appeared to be his view that all reasons for dismissal related in some way to the individual concerned so he required to look for something more; that was that the reason required to be one that could be described as 'direct and personal' such as his conduct or capability. The flaw in that approach is demonstrated by his referring to the 'reason' for a redundancy dismissal being, for instance, length of service or disciplinary/sickness record (paragraph 49). Those are, however, reasons for selection from a pool of employees where the reason for dismissal is and remains, redundancy. Further, there is no warrant for his importing a new definition of 'relating to the individual' into the statute, yet that is what, by applying a test of 'direct and personal', he does. The statutory terminology does not, as we discuss above, lack clarity.

1. Secondly, the Employment Judge erroneously concluded that, under the prior legislation, redundancy consultation was required in dismissals on the expiry of all FTC's and that, accordingly, Parliament cannot have intended to narrow the scope of the protection afforded. We would refer to our earlier discussion in that regard.

1. Thirdly, the Employment Judge approached matters on the basis that s.282 TULRA favoured his interpretation but as we have explained, we do not consider that those provisions demonstrate legislative intention that all FTC's in excess of three months were to be brought within the ambit of s.188.

1. Finally, whilst it is not clear whether the Tribunal's observations at paragraph 60 were influential in the Employment Judge's ultimate conclusion, they ought not to have been, in our view. They are, perhaps, demonstrative of an overall failing which is that the Employment Judge does not actually ask the question of whether, on the facts of the cases before him, the dismissals were for reasons not related to the individuals concerned. He required to do so and it was only if he could, on the facts, answer that question in the affirmative that he was entitled to conclude that s.188 applied. He appears to have approached matters on the basis that dismissal for the reason that the individual employee had knowingly agreed to a contract of employment for a finite term could never be a reason relating to the individual concerned. He was not, however, for the reasons that we explain, entitled to do so.

1. The issue turns on construction of domestic legislation which not only, now, implements the relevant Directive, but goes further than it requires. Similarly, the interpretation of ss.188, 195 and 282 urged on us by Mr Napier goes further than the Directive requires and is thus compatible with it; there is no community right afforded by the Directive which would be infringed by that interpretation. The Marleasing 5 approach to interpretation is thus not required (see: R (Hurst) v London Northern District Coroner, as was agreed by counsel.

1. That is not to say that the means by which the Directive excluded all FTC's is of no assistance to us in carrying out the interpretive task. The provisions of Articles 1 and 2 to which we refer above set the scene and the scene, from the European perspective, was that if a FTC in fact came to an end at the expiry date provided for in the contract, the collective consultation provisions could never apply. It did not matter if the reason for not renewing the FTC did not relate to the individual concerned - if, for instance, the reason was that that part of the business for which the FTC work had been carried out was closing down (i.e. a reason not related to the individual concerned). FTC's were an excepted category, in all circumstances.

1. It can, perhaps, reasonably be inferred that the domestic legislature, noting the need, under the Directive, for collective consultation when business decisions are made which have potential to restrict the employer's business or other activities and so cause significant job losses, determined on a statutory scheme which would require such consultation in the case of FTC's if a decision of that sort – which does not involve any focus on the individual FTC employee - was the reason for their non renewal. It is not difficult to see that there could, in such circumstances, be benefit in collective consultation for the statutory purposes of avoiding dismissals, reducing the number of employees to be dismissed and mitigating the consequences of dismissals – where offering renewals of FTC's might, for instance, be a means of preventing proposed closures or business restrictions. Such considerations do not, however, obviously arise where the reason is not the making of a business decision with such potentially wide reaching implications, but the termination, in normal course, at a previously agreed and planned date (or event) of a FTC.

1. Mr White sought to persuade us to infer that Parliament must have intended to bring all FTC's within the ambit of s.188. That was because, in his submission, under the prior redundancy consultation provisions, consultation was always required where dismissal occurred at the expiry of a FTC and it could be inferred that they would not have legislated to narrow the previous protection. He relied on Natfhe in support of that proposition. That is not, however, what Natfhe or any of the other authorities to which we refer above, say. The position was, on the contrary, clearly that to determine whether or not there had been a dismissal for redundancy, the Tribunal required to consider what, on the facts of the individual case, was the reason for the dismissal. Further, unease was expressed at the proposition that termination, as planned from the outset, at the end of a FTC could amount to redundancy (Association of University Teachers v University of Newcastle**).

1. To what extent does the domestic legislation create an inroad into the excepted category? Mr White's position was that it was so as to include all FTC's other than those for three months or less. Section 282 demonstrated that, according to his submission. We were not persuaded by his approach. It seems plain to us that the import of s.282 is that the provisions of s.188 may apply to FTC's which are for more than three months but, equally, they may not. Section 195 provides the answer and it is that Employment Tribunals require to ask whether, on the facts and circumstances of the individual case(s) before them, dismissal was for a reason relating to the individual concerned. It is, as Mr Napier submitted under reference, relevantly, to the case of Abernethy, a matter of them looking at and assessing the facts of the case, against that statutory test.

1. We consider that the words 'for a reason not related to the individual concerned' are, in the circumstances, clear and unambiguous. A reason relates to the individual if it is something to do with him such as something he is or something he has done. It is to be distinguished from a reason relating to the employer, such as his (or in the case of insolvency, his creditors') need to effect business change in some respect.

1. In this case, on the facts, at least one of the reasons for all four dismissals was that the employee had agreed to a FTC accepting that it would come to an end at a particular date or on the occurrence of a particular event. Those were normally the Respondent's reasons when a FTC came to an end and none of the facts showed that any other reasons applied in any of these four cases. Did those facts amount to reasons relating to the individuals concerned? We are satisfied that they did. The Respondent's reason was one which relied on the individual employees' own approach to their employment with the Respondent. They had agreed at the outset that their employment would be for finite periods defined by dates or tasks. The circumstances are thus not of termination being imposed on them against their wishes; they are not, we consider, within the category that the ECJ had in mind in their comments at paragraph 50 of their judgment in Commission of the European Communities v Portugal. They accepted at the outset that their FTC's would terminate at the defined point. The only means by which they could, thereafter, continue in the Respondent's employment would be if they were offered and accepted another FTC, circumstances referred to as 'renewal' but, properly analysed, involving two consecutive FTC's. Unlike employees employed under OEC's, they did not have any reasonable expectation of employment for an indefinite period.

1. It follows that since we accept that the reasons for the four dismissals in the test cases related to the individuals concerned, they were excluded, by s.195 of TULRA, from the ambit of s.188.

1. On the facts of the present case, the Respondent did not have a multiplicity of reasons for dismissal. For completeness, we would, however, add that we also accept Mr Napier's submission that, given the wording of s.195, for a dismissal to come within the ambit of s.188, it must be that none of an employer's reasons for dismissal may be related to the individual concerned. We do not share the doubts expressed by the editors of Harvey in that regard.