Lobo v UCL Hospitals NHS Foundation Trust

July 31st, 2024
Jack Posnett
Employment

Lobo v UCL Hospitals NHS Foundation Trust

Employment Solicitor Kate Forrest looks at the details of a case which explores the renewal of an employee’s fixed term contract beyond four years, and the justification behind the final decision.

Brief facts

The respondent operated a breast service which the claimant worked in under a series of fixed term contracts as a locum consultant breast surgeon (part-time) from 22 February 2016.

In 2019 the respondent commenced a review of the breast service. The process was then delayed by the pandemic.

On 22 February 2020 the claimant acquired 4 years’ service and sought a declaration that her employment had become permanent. The respondent refused to make her role permanent and extended her fixed-term contract.

In 2021 the respondent decided it needed a full-time substantive consultant breast surgeon. As a Foundation Trust the respondent was not required to follow the NHS (Appointment of Consultants) Regulations 1996 (AAC Regulations) (which sets out certain requirements such as the post to be advertised nationally and a specific interview panel) but they chose to do so.

In 2021, the respondent ringfenced the substantive post for the claimant and she was given coaching to prepare for the interview.

In September 2021, the claimant attended an interview for the substantive post but was unsuccessful. After the unsuccessful interview the post was advertised nationally and the claimant applied again but was unsuccessful. The claimant remained on a fixed term contract.

The claims

The claimant sought a declaration under regulation 9 (5) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 that she had become a permanent employee in order to provide clarity on her contractual position.

In the circumstances of this case the claimant would have become a permanent employee unless her continued employment under a fixed term contract was justified on objective grounds.

ET decision

The ET held that the continuation of the fixed-term locum appointment beyond four years was objectively justified.

This was on the basis that the issue was not whether she should have been appointed to the substantive post that was advertised, but whether the fixed term contract she was engaged under should have been regarded as permanent. The ET decided that it was objectively justified for the claimant’s role to remain a fixed-term role because the respondent had shown a legitimate aim of providing a safe, efficient, and fully functioning breast service. It was appropriate and necessary to continue to engage the claimant on a fixed term contract because (i) the breast service should not be left under-staffed where this is avoidable, (ii) it would be disproportionate and inefficient to terminate the claimant’s fixed term contract and recruit a new consultant on a fixed term contract for an interim period, and (iii) there was a clear need for the breast service to recruit a permanent substantive consultant pursuant to the AAC Regulations which entailed a rigorous selection process.

EAT decision

The claimant appealed but the appeal was dismissed.

The EAT agreed that the continuation of the fixed term locum appointment beyond four years was objectively justified on the basis that the respondent did not require a permanent employee carrying out the locum role that the claimant was doing. It could show an objective need for a fixed-term locum consultant because it was appropriate and necessary to secure the provision of clinical services to meet the needs of patients pending the appointment of the substantive consultant and to use a fixed term contract to do so. This was especially the case given the likely short-term duration of any gap pending appointment to the substantive consultant post. The respondent’s position that the claimant’s contractual position was conditional upon the service review and agreement as to the way forward for the breast service, as well as being fixed term and not permanent in nature, was clear and transparent throughout.

Key takeaways

Justification is key – in this case there genuinely was a time-limited requirement that was appropriately filled by extending the claimant’s fixed term contract due to the need for her to continue to provide a safe, efficient and fully functioning breast service pending the appointment of the substantive consultant;
Guidance provided by BEIS is important which suggests that the employer must establish that:
They have a legitimate objective, for example a genuine business objective;
It is necessary to adhere to that objective; and
It is an appropriate way to achieve that objective.
The number and cumulative duration of the previous fixed term contracts with the employer may be relevant (Kucuk v Land Nordrhein-Westfalen [2012]).
Good faith is relevant – in this case the Tribunal was not satisfied that the respondent had acted with a lack of good faith (encouragement given to claimant to apply for substantive post, ring fencing of the post, provision of coaching).
The renewal of successive fixed term contracts must be intended to cover temporary, as opposed to permanent, needs. The temporary needs in this case were to provide a safe, efficient and fully functioning breast service pending the appointment of the substantive consultant.