Fixed term Contracts and Unfair Dismissal

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In Royal Surrey County NHS Foundation Trust v Drzymala UKEAT/0063/17/BA, the EAT held that if an employer complies with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the Regulations), it does not necessarily mean that it has been fair when a fixed-term contract has not been renewed

In this case, a locum consultant doctor, who had been employed on a series of fixed-term contracts applied for a permanent position shortly before her existing contract expired. She was interviewed for the position but was unsuccessful. Following this she was informed that her fixed-term contract would not be extended and was not offered any alternative employment or right of appeal. The Claimant subsequently raised a grievance and was then allowed to appeal, which she did and which was unsuccessful

She brought claims for age discrimination and unfair dismissal. The discrimination claim failed but the unfair dismissal claim was successful. The employer appealed against the finding that it was an unfair dismissal on the basis that it had complied with the Regulations and as such, it was wrong for the tribunal to find that the employee had been unfairly dismissed

The employer’s stance was rejected by the EAT. It commented that, when deciding if a dismissal is unfair, it depends on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996. Although dismissals by non-renewal of fixed-term contract are often fair for “some other substantial reason”, they cannot be considered a special case and so should be treated in the same way as those normally considered under section 98(4).

In conclusion, the tribunal was correct in finding that the Claimant had been unfairly dismissed as the employer did not discuss any alternative roles with the Claimant or give her a right of appeal.

Written by
Edward Aston
7th February 2018