The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are designed to prevent fixed-term employees being treated less favourably than similar permanent employees, and to limit the use of successive fixed-term contracts.
When a fixed-term contract expires
When fixed-term contract expires and a decision is made not to renew a fixed-term contract, does an employer's compliance with the regulations mean it will have acted fairly by not renewing?
An Employment Appeal tribunal case examined this issue. The case was Royal Surrey County NHS Foundation Trust v Drzymala.
The details of this case
A locum consultant doctor had been employed on a series of fixed-term contracts. A permanent vacancy arose before her contract was due to expire. She was interviewed, along with another candidate, but not appointed.
Subsequently she was given notice that her fixed term contract would not be extended. The employer's letter made no mention of a right of appeal or any alternative employment with the Trust.
The doctor lodged a grievance and was eventually allowed an appeal. An appeal panel concluded that an earlier appeal would have made no substantive difference as to the outcome.
A tribunal found that her dismissal was unfair and the employer appealed.
Discrimination of fixed-term employees
the appeal relied in particular on its contention that it had complied with the non-discrimination regime in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Therefore the Employment Tribunal was wrong to conclude that the employee was unfairly dismissed.
The Employment Appeal Tribunal rejected this proposition.
A question of fairness
Kate Fretten, Partner in Frettens' Employment Team, explains "The general law on unfair dismissal applies to dismissals which arise from non-renewal of a fixed-term 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, which should be carried out. Dismissals by non-renewal of a fixed-term contract are often potentially fair for 'some other substantial reason'. However, they are not a special case attracting different considerations from those normally considered."
Kate continues "In this case, the tribunal was right to consider that the Claimant had been poorly treated by the employer when it failed to pursue a discussion about alternative roles and to provide the Claimant with a timely right of appeal."
The finding of unfair dismissal was therefore upheld.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.