The UK Supreme Court has decided that the respondent employer in this case should have consulted the recognised trade union, the UCU, over the termination of fixed term contracts during a collective redundancy exercise. 

The law on collective redundancy consultation is different in NI from the rest of the UK and readers should treat other commentaries with care. However, the basic principles are the same - An employer which proposes to “dismiss as redundant” 20 or more employees at one establishment within a period of 90 days or less has an obligation to consult the appropriate representatives, usually a recognised trade union, of any of the employees who may be affected.

The question in this case was whether those employees include people employed on limited term contracts (“LTCs”) whose contracts came to an end without renewal during the relevant period i.e. should the natural expiry of a fixed term contract which is not renewed be included in the pool of redundancies on which an employer has to consult with the elected representatives? 

There is no doubt that non-renewal constitutes a dismissal but is it a redundancy, even if it is not renewed because the employer can't afford to renew it or no longer requires workers of that particular kind? 

The UKSC has decided that LTCs (or FTCs, if you prefer) should have been defined in these circumstances as redundancies and should have formed part of the consultation arrangements because they agreed with the EAT test set out in this case on whether a dismissal is by reason of redundancy or not:

“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.”

Earlier decisions of the EAT and Court of Appeal indicated that termination of an LTC was related to the individual because the individual had signed a contract knowing it would come to an end at a specific date. This was wrong, according to the Supreme Court, and it gives good reasons at paragraph 22 of its decision, including:

"... the ending of a research project or the ending of a particular undergraduate course would not be a reason related to the individual employee but a reason related to the employer’s business. The business no longer has a need for someone to do the research or someone to teach the course."
http://bit.ly/1JDnaVg 

IMPORTANT NOTE FOR NI-BASED READERS: The UKSC commented that this case is of mainly historical value because the law was changed in 2013 to exclude the requirement to consult on expiry of fixed term contracts "unless... the dismissal will take effect before the expiry of the specific term, the completion of the particular task or the occurrence or non-occurrence of the specific event (as the case may be)." That change occurred under the GB Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013:
http://www.legislation.gov.uk/uksi/2013/763/contents/made 

No such amendment has been applied in Northern Ireland and, consequently, the UCU v Stirling case above should be followed in NI. Just to confuse matters, the CJEU has referred to the expiry of fixed term contracts in the 'Woolworths' cases (see below) and noted that in relation to the EU directive on this matter:

"This Directive shall not apply to: (a) collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts."