Marks and Spencer (Ireland) Ltd v Lyster [2013]

The claimant in this case had been employed by the respondent under a number of short term fixed-term contracts to cover busy trading periods. In addition to claiming that she had not received statements justifying the renewal of fixed-term contracts under s.8, she also claimed, initially under Section 6, that she sought to apply for permanent vacancies in the respondent’s workplace but had been refused the opportunity because she was a fixed-term employee. Her complaint before a RC succeeded and she was awarded €4,000 in compensation. The respondent appealed this decision to the Labour Court.

On appeal, the Court noted that the complaint in relation to potential access to permanent employment alleged a breach of Section 6 of the Act when it should more properly have concerned Section 10. However, as the respondent took no issue with this and the facts of the complaint remained unchanged, the Court proceeded. It reviewed some case law concerning the application of Section 10, noting that in Aer Lingus v A Group of Workers [2005] 16 E.L.R. 261, it had found that fixed-term employees not only have a right to be informed of permanent vacancies in the workplace, they have “a concomitant entitlement to compete for available vacancies within an undertaking”. 

It also referred to the key decision of the High Court in Minister for Finance v McArdle [2007]2 ILRM 438 that confirmed that an obligation to inform of vacancies clearly carries with it an obligation to allow applications for such positions. 

Turning to the case in question, the Court noted that the claimant gave sworn evidence that in June 2012 she became aware of permanent vacancies in the workplace but was told by the respondent’s Human Resources (HR) Manager that she could not apply for them because she was temporary. On the other hand, evidence was provided by other members of management on behalf of the respondent that the practice was that in order to apply for a vacancy, an employee needed a recommendation from his or her Line Manager and would also need to be ‘released’ by his or her section to apply. 

Faced with this conflict of evidence, the Court noted that the HR Manager who was alleged to have said that the claimant could not apply for permanent vacancies was not available to give evidence. On the balance of probabilities therefore, the Court accepted the claimant’s recollection of the conversation and found that S.10 (in addition to Section 8) of the Act had been breached. The RC’s decision was affirmed.

Read the full case here: 
http://bit.ly/H651SC