The EAT gave judgment on 20 April 2017 in a decision of considerable significance for the employment of civil servants. In Secretary of State for Justice v Betts and ors UKEAT/0284/16/DA, Simler P held that where individuals were appointed to positions in the Civil Service but were not recruited on merit on the basis of fair and open competition, their appointment was ultra vires such that their purported contracts had to be treated as void.
Teachers working for HM Prison Service sought to bring claims under the ERA. They had been engaged as “sessional workers” and none of them was recruited following a process of fair and open competition. Section 10 of the Constitutional Reform and Governance Act 2010 provides that a person’s selection for appointment to a position in the Civil Service must be on merit on the basis of fair and open competition and the Secretary of State argued that a breach of this mandatory rule rendered the contracts illegal and void.
Simler P agreed. She rejected the approach, taken by the employment judge at first instance, that a distinction could be drawn between employment (for the purposes of sections 191 and 230 ERA) and appointment to the Civil Service, noting that if employment were excluded from the principle of fair and open competition, it would deprive the 2010 Act of much of its effect She concluded, therefore, that the Secretary of State does not have any residual power to employ individuals in Civil Service positions outside the limitations imposed by the 2010 Act.
It followed that none of the individuals could be treated as an employee, notwithstanding the employment judge’s findings of fact in that regard.
The decision resolves long-standing uncertainty as to the status of individuals who appear to be working in the Civil Service but who were not appointed following a proper procedure.
Ben Collins QC of Old Square Chambers represented the successful Secretary of State.
To read the full judgment, click here.
Betts, civil service, employment law, Ben Collins
