The five members with Declan O'Dempsey (second left) outside the tribunal

The members were taken on as ‘sessional’ staff. The prison said they were not employees and therefore had no right to holiday or sick pay, access to the pension scheme, and no protection against unfair dismissal or redundancy.

They had all been working continually for more than two years and the prison’s education service depended on them to teach classes. Despite this, they were treated as if they were on zero hours contracts with very few rights.  

Tracey Betts, Nathan Proctor, Kellyann O’Brien, Cheryl Penn and Matthew Jones sought advice from Andy Bye, their Prospect negotiator. Andy and Prospect's legal team presented claims to the employment tribunal seeking declarations that the members were employees.

The Secretary of State for Justice argued that:

• the claimants were not employees as there was no obligation for them to attend work
• even if the five were found to be employees, the contracts would be illegal as they had not been appointed under the civil service recruitment principles of fair and open competition. This would have made the contracts unlawful under the Constitutional Reform and Governance Act 2010 (CRAGA), and unenforceable by the claimants.   

The case was heard over two days in December at the Cardiff employment tribunal. The members were represented by Counsel, Declan O'Dempsey.

The Judge heard evidence from the five members about their day-to-day work. Andy Bye also gave evidence and referred to a very similar tribunal case in 2013, which Prospect had won for a prison chaplain.

The Judge found in favour of the claimants. She recognised the bargaining position between the individuals and the employer was wholly unequal. While they may have been told the offer of work was on a sessional basis, the Judge found the reality was that they were employees.  

The Judge also found that there was a distinction between being a Crown employee, which is governed by employment law, and being appointed as a civil servant which relied on the provisions in CRAGA. Therefore she ruled that the contracts were legal and could be relied on by the claimants.

Tracey Betts said: “I am really pleased with the judgement; it validates our position that we should have been treated no differently to other staff. We all thank Prospect for their continued support. The union was invaluable in ensuring this positive outcome.”

Andy Bye added: “Having won these arguments previously, it was disappointing the Prison Service would not do the right thing for these members without us having to pursue further litigation.

“The case is a good example of a tribunal analysing the reality of the working arrangements and looking beyond the ‘label’ attached to the contract”, said Marion Scovell, head of Prospect Legal.

“It demonstrates that many atypical workers, including those on zero hours, have more legal rights than they think and should always seek advice from their union.”

A further hearing will be held to determine the financial remedy.