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Sarah Fraser Butlin successfully represents appellant in case establishing fees paid by Union can be recovered in the EAT
Background to the appeal
Dr Ibarz taught Spanish and Latin American Studies at the University of Sheffield. The University splits its academic years into two semesters. Dr Ibarz was engaged on a series of short-term contracts lasting one semester at a time, punctuated by university holidays.
On May 2013 he brought a claim in the Employment Tribunal complaining that since 2004 the University had breached the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 by treating him less favourably in various aspects of his working conditions, including pay progression, holiday pay, and pension entitlement. The tribunal found that Dr Ibarz was an employee of the University, but that his employment was not continuous; during the holidays there was no contractual relationship between the parties.
Complaints under both sets of Regulations must be presented to the Employment Tribunal within 3 months of the less favourable treatment taking place. However, where a matter complained of is part of a “series of similar acts or failures”, then the 3 month time limit runs from the last of those acts or omissions. In Dr Ibarz’s case, the tribunal considered that events which took place during different teaching contracts could not form part of a “series of similar acts”, with the result that his claim would be confined to matters which occurred during the last semester before he commenced proceedings. Dr Ibarz appealed against that conclusion.
Wilkie J sitting in the EAT upheld Dr Ibarz’s appeal, quashed that part of the tribunal’s determination and remitted the matter to be decided afresh. The judge ordered the university to pay costs under r.34A(2A) of the EAT Rules in respect of the EAT issue and hearing fees, which Dr Ibarz’s union had paid on his behalf.
Reasons for the judgment
Wilkie J held (at §26) that the tribunal had erred in misreading Arthur v London Eastern Railway Ltd  EWCA Civ 1358;  ICR 193 so as to preclude the possibility that an employer’s consistent application of particular practices and policies to a series of discrete and separate contracts of employment could amount to a series of similar acts. It ought to have considered, as a matter of substance, whether and to what extent the university’s various practices and policies, albeit applied across a series of fixed-term contracts, did amount to a “series of similar acts or failures” such that Dr Ibarz’s complaints in respect of earlier semesters could be considered.
In relation to costs, Wilkie J addressed Goldwater v Sellafield  IRLR 381, a case in which the EAT previously held that the amount of any costs order under r.34A(2A) must be limited to expenses actually paid by the appellant, so that successful appellants whose issue and hearing fees had been paid by their trade union could not recover those costs. Wilkie J concluded (at §36) that Goldwater v Sellafield was wrongly decided. For consistency with other provisions of the EAT Rules, and as a matter of public policy, the words in r.34A(2A) “paid by the appellant” should be read as including “or on his behalf”.
This is a welcome decision with regards to costs that will not only apply to union-funded appellants but also those backed by legal expenses funding. It may alleviate the chilling effect which the EAT fees have on appeals being brought on meritorious points of law with low financial value.