A Cardiff Employment Tribunal has found that sessional teachers in the Prison Service were employees and therefore entitled to employment rights. Declan O’Dempsey, acting for Prospect union members, successfully argued (in the case of Betts and Others v Secretary of State for Justice) that their employment was lawful.
Surprisingly the Prison Service sought to argue that the contracts were illegal because the Prison Service has exceeded its powers (acted ultra vires) in entering into them. It argued that because the employment was not the result of fair and open competition, the Prison Service had no power to employ the Claimants, and because it had not followed the Constitutional Reform and Governance Act 2010, it had no intention of entering into legal relations with the Claimants.
Declan successfully argued that the concept of “Crown employment” in the Employment Rights Act 1996 is distinct from the concept of “appointment to the civil service” in the 2010 Act. The implications of the Prison Service argument would have been extensive. Civil servants appointed under a recruitment process proved to be (e.g.) discriminatory and would not have been properly appointed. In consequence all of the decisions which they would make and which require a civil servant to make them to be lawful, would be unlawful.The Claimants invoked the “Ram Doctrine” that the Crown has capacity to enter into contracts and to require the 2010 Act to be limited in its effect.
The Tribunal will now proceed to determine the claimants’ substantive claims at a future hearing. The ruling may lead to the rewriting of the Prison Service’s instructions concerning the employment of sessional workers. An earlier ruling, also argued by Declan, resulted in the rewriting of procedures concerning the employment of sessional chaplains and others.
For further coverage see: Prospect members win employment rights at tribunal