The Employment Appeal Tribunal (EAT) has considered the fairness of a dismissal following the expiry of a fixed term contract.
Royal Surrey County NHS Foundation Trust v Drzymala, EAT
The claimant was a locum doctor who had been employed by the NHS Trust on a series of successive six-monthly contracts from November 2011. She applied for a permanent position and was interviewed, along with another candidate who was eventually appointed to the post. The claimant was given notice that her current fixed term contract would not be extended and her employment would terminate on 30 September 2014. The letter made no mention of a right of appeal, nor of any possible alternative employment with the Trust.
The claimant submitted a formal grievance to complain about the appointment process; she also sought an appeal against the decision to terminate her contract. She was eventually allowed an appeal after her employment had ended, but this concluded that an earlier right of appeal would have made no substantive difference to the outcome.
An employment tribunal upheld the claimant’s claim for unfair dismissal on the basis that she had been denied a timely right of appeal, and the Trust had failed to properly consider the availability of alternative employment.
The EAT rejected the Trust’s appeal, upholding the tribunal’s finding of unfair dismissal. The Trust argued that it had not breached its obligations under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. As the claimant had less than four years’ service under a fixed term contract, it was under no obligation to find or offer her alternative employment. The EAT rejected this argument. Compliance with the 2002 Regulations does not mean that a dismissal due to the non-renewal of a fixed term contract will necessarily be fair. Such a dismissal might be potentially fair for ‘some other substantial reason’, but the question of fairness depends on a consideration of the usual factors applicable to a claim for ordinary unfair dismissal.
This decision is a reminder for employers that the expiry of (and failure to renew) a fixed term contract amounts to a termination, and, therefore, all the usual considerations for securing a fair dismissal will apply - particularly if the individual has accrued more than two years of continuous service. The EAT stated that it would not necessarily be the case that an employer will always be obliged to consider alternative employment on the expiry of a fixed term contract, but this will be one of the factors taken into account.