Ms Cheryl Lobo v University College London Hospitals NHS Foundation Trust.
This appeal concerned the Fixed Term (Prevention of Less Favourable Treatment) Regulations 2002 (‘the Regulations’ described by HHJ Tayler as “a little off the beaten track”. The Claimant had sought a declaration under section 9(5) of Regulations that she had become a permanent employee of the Respondent. After being unsuccessful at first instance she appealed to the Employment Appeal Tribunal (EAT) on five grounds. Ground 1 raised the issue of the phrasing of the legal question the Employment Judge had asked himself in respect of justification. Grounds 2-3 raised issues relating to factual conclusions drawn by the Tribunal as to the status of the Claimant’s position as a locum Consultant in the NHS and Ground 4 challenged the handling of alternatively reasons given by the Tribunal in respect of the ‘good faith’ argument below. Ground 5 was given permission at a rule 3(1) hearing conditional upon further evidence being adduced and was not arguable at the Full Hearing in the end.
The Regulations were made to implement the Council Directive 99/70/EC concerning the framework agreements on fixed-term work. The purpose of this Directive was set out in the annexed Framework Agreement. In summary, they “concentrate on preventing or limiting the abuse of successive fixed-term contract, the abuse being to disguise what is effectively an indefinite employment as a series of fixed-term contract, thus potentially avoiding the benefits and protections available in indefinite employment” (per Baroness Hale at §10 in Secretary of State for Children Schools and Families v Fletcher, Duncombe v Secretary of State for Children Schools and Families [2011] UKSC, [2011] ICR 495).
By Regulation 8(1) of the Regulations, Regulation 8 applies only to fixed-term contracts where there has been at least one previous fixed-term contract or a fixed-term contract which has been renewed. Regulations 8(2) and 8(3) provide that where an employee has been continuously employed for four or more years, the latest renewal or successive contract must be justified on objective grounds. If they are not, the employee will become a permanent employee.
The Claimant had been employed as a Consultant Breast Surgeon by the Respondent under a series of fixed term contracts from 22 February 2016. The Claimant’s Consultant role was described as being a “locum”. The Tribunal made a number of findings as to the differences between a “locum” role and that of a substantive Consultant breast surgeon.
As of 22 February 2020, the Claimant accrued 4 years’ service. In 2021 the Respondent decided to appoint a “substantive” consultant breast surgeon. The Respondent was not required to but chose to adopt the National Health Service (Appointment and Consultations) Regulations 1996 (“the AAC process”). This required a fair and open recruitment process that would lead to the strongest candidate being appointed.
Whilst noting the Claimant’s contention that the decision not to appoint her had not been made in good faith, the Tribunal had made clear that it was not a case about the Claimant’s relationship with colleagues, or the substance or process in relation to complaints made against the Claimant by others, or the grievance she had in turn raised. At §216 the EJ made clear that:
“What this case is about is whether, all other things being equal, the Tribunal can declare under regulation 9 that the provisions in the contract that restrict its duration will cease to have effect and the contract will be regarded for all purposes as being a contract of indefinite duration because the conditions in regulation 8 of the Regulations apply. The key to that question – because all the other conditions are met – is whether at the time of the most recent renewal of her employment under a fixed-term contract that decision was or was not justified on objective grounds.”
The Tribunal went on to state that it was not in its power to appoint the Claimant to a substantive Consultant post. All it could do was to make a declaration that the Claimant’s present contract would cease to be a fixed term contract, but in all other respects her terms and conditions would remain the same. It considered the questions it must ask in deciding whether the continued employment of the Claimant under a fixed term contract was justified were (§232): “has the respondent established an objective justification to not treating the claimant’s locum contract as no longer fixed term? What is the respondent aiming to achieve by way of a legitimate objective? Is it necessary to achieve that objective? Is it an appropriate way to achieve that objective?”. It concluded the Respondent had established an objective justification and dismissed the Claimant’s claim.
The EAT held that the Tribunal had made “an impeccable direction as to the law” (§28). It is for the Respondent to identify the legitimate aim and explain the means it adopted to achieve that aim, but it is for the Tribunal to then assess what circumstances are relevant to the objective justification: “it overstates the position to say it is for the Respondent to “identify its objective justification”” (§31).
The Tribunal had accepted the Respondent’s case that there was a need to recruit a permanent substantive consultant pursuant to the AAC Regulations and rejected the Claimant’s contention that this process was a sham. It also accepted that the decision to appoint a different permanent role to the Claimant’s was the context in which the decision was made to renew the Claimant’s fixed term contract. This ensured it continued to meet its legitimate aim: providing a safe, efficient and fully functioning Breast Service, in the intervening period. There was a genuine time-limited requirement that was appropriately filled by extending the Claimant’s fixed-term contract.
Ground 2 was that the Tribunal had erred in allowing the Respondent’s terms “locum” and “substantive” to emasculate the regulations. It argued the former simply meant fixed-term and the latter permanent. That was not the gravamen of the Tribunal’s findings, held the EAT. Factual findings were made as to the differences and no error of law existed.
Ground 3 argued that those findings had been determinative, an error of law, and failed to weigh the extent of the difference. The EAT did not agree; the Tribunal had held there were significant differences such that the new role was not a continuation of the Claimant’s. This factual finding could only be disturbed on perversity grounds which were not made out.
Ground 4 argued that the EJ’s consideration of the Claimant’s lack of good faith arguments were not Meek compliant. The EAT again disagreed, holding that the Tribunal had made sufficient factual findings that there was not a lack of good faith on the part of the Respondent in its treatment of the Claimant.
Ground 5 was not pursued with evidence and therefore not the subject of any substantive determination by the EAT.
This case may be of especial interest to those advising doctors and NHS Trusts where it is common for locum arrangements to be used. The purpose of these little cited Regulations is to prevent abusive practices as helpfully set out in Secretary of State for Children Schools and Families v Fletcher, Duncombe v Secretary of State for Children Schools and Families [2011] UKSC, [2011] ICR 495 with the mechanism operating so as to remove the effect of an fixed term provision when the qualifying conditions are met saved where objective justification is made out. In this case both counsel agreed and submitted that the same approach to objective justification as is well established in discrimination law ought to be applied here.
Counsel for Claimant: Rad Kohanzad, Old Square Chambers – Instructed Direct Access by the Claimant.
Counsel for Respondent: Eleena Misra KC, Old Square Chambers – Instructed by DAC Beachcroft LLP.
This case note was written by Karim Pal, Pupil, Old Square Chambers.
