Fixed Term Contract Pitfalls

For those employers who use fixed-term contracts, the case of Royal Surrey County NHS Foundation Trust v Drzymala EAT/0063/17/BA is a timely reminder that complying with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 does not of itself mean that a dismissal will be deemed to be fair.

A locum consultant doctor was employed on a series of fixed-term contracts. A permanent vacancy arose before the contract was due to expire and the employee was interviewed, along with another candidate, but she was not appointed to the permanent post. The employer later gave written notice that the fixed term contract would not be extended. The employer's letter made no mention of a right of appeal or any alternative employment.

The EAT upheld the employment tribunal decision that the dismissal was unfair. Complying with the non-discrimination regime in the Fixed-term Employees Regulations was not sufficient to justify the fairness of the dismissal. The general law on unfair dismissal applies to dismissals which arise from the non-renewal of fixed-term contracts as with any other form of employment contract.

The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996. In particular, there is a requirement to follow a fair procedure (including affording an employee a right of appeal) and will usually be a requirement to consider and consult upon alternative roles.

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