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Unlawful Contracts

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If someone is employed by the government in breach of the statutory provisions governing Civil Service recruitment, is the contract of employment void for illegality?

Yes, held the EAT in SoS for Justice v Betts and others, upholding the Justice Secretary’s appeal.

The case involved sessional workers in HM Prison Service, who had been recruited (entirely innocently) in breach of the statutory provisions governing Civil Service recruitment during a recruitment freeze. The legal backdrop is that Civil Service recruitment was governed by an Order-in-Council and then the Constitutional Reform and Governance Act 2010, which provides for a mandatory merit-based recruitment to the Civil Service, with limited exceptions. The failure to follow the mandatory recruitment procedures set out in law rendered the contracts of employment void as ultra vires, outside the powers of the Secretary of State.

Consequently, the sessional workers were not civil servants, nor were they simply employees of the Crown but not civil servants, but they were ‘workers’ under the Employment Rights Act. There was no residual power for the Crown to recruit employees other than on the statutory basis of fair and open competition as civil servants. The EAT noted the important public safeguard of an open merit-based recruitment process of those best qualified to serve, and to preserve the independence of the Civil Service.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.