Non-renewal of fixed-term contracts and unfair dismissal
An employer’s compliance with the Fixed-Term Employees Regulations will not necessarily result in an employee’s dismissal being fair. In Drzymala the Royal Surrey County NHS… Read more
An employer’s compliance with the Fixed-Term Employees Regulations will not necessarily result in an employee’s dismissal being fair.
In Drzymala the Royal Surrey County NHS Foundation Trust (‘the Trust’) employed Ms Drzymala as a locum consultant doctor on a series of fixed-term contracts. A permanent vacancy arose before her final fixed-term contract was due to expire and the Trust interviewed her and another candidate. Ms Drzymala was unsuccessful in her application. Her fixed-term contract then expired.
The Trust failed to give her a right to appeal and, despite initially stating that there may be another role available, did not go on to investigate alternative employment for her. Drzymala successfully claimed unfair dismissal against the Trust and the Trust appealed.
The EAT upheld the tribunal’s decision, finding that the law on unfair dismissal applies equally to dismissals that arise from non-renewal of a fixed-term contract and that the Trust’s compliance with the non-discrimination provisions contained in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations was not sufficient to result in a fair dismissal.
The Trust had not explored with Ms Drzymala any potential alternative roles within the Trust and had not given Ms Drzymala the right to appeal against the decision not to renew her fixed-term contract.
Comment: This case is a useful reminder that when taking the decision not to renew fixed-term employees’ contracts, employers must take steps to follow a fair procedure with the employee where the employee has 2 or more years’ service. It also highlights the differences between conduct or capability dismissals and those for some other substantial reason (“SOSR”), as here. In SOSR cases, case law has established that an employer may, depending on the facts, have to engage in some degree of discussion or consultation with employees regarding alternative employment, a requirement that is often overlooked.
Royal Surrey County NHS Foundation Trust v Drzymala UKEAT/0063/17).
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James Champness is an employment senior associate
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