Tasneem v Dudley Group of Hospitals NHS Trust

Permission to appeal should be refused where the proposed grounds merely seek to reargue factual findings and disclose no arguable error of law or real prospect of success. A communication about implementing revised employment terms does not create a contractual obligation unless it has contractual effect. An employee’s request to transfer to revised terms does not create a new contract without agreement on those terms. A finding that treatment was not discriminatory, reached without legal error, is not open to challenge on appeal.

Muhammad Sadiq Tasneem, a locum consultant orthopaedic surgeon employed by Dudley Group of Hospitals NHS Trust on successive fixed-term contracts, applied to renew his appeal. His claims for breach of contract, less favourable treatment because of fixed-term status, race and age discrimination, and unfair dismissal had been dismissed by the Birmingham Employment Tribunal.

The Employment Appeal Tribunal dismissed his appeal by order dated 29 June 2011, holding that the arguments disclosed no error of law. The application to the Court of Appeal concerned an alleged contractual right to notification of, or transfer to, a new consultant contract, and the terms on which the fixed-term contracts were renewed.

1. The renewed application for permission to appeal was refused. The proposed appeal on grounds 2 to 6 had no real prospect of success and disclosed no arguable error of law.

2. The Employment Tribunal was entitled to reject the contention that the communication of 11 September 2003 imposed a contractual obligation on the Trust to notify the applicant of an opportunity to transfer to the new consultant contract. The Employment Appeal Tribunal was also right to regard the contract claim as hopeless in light of the applicant’s knowledge of the new contract and his decision not to pursue the matter at the relevant time.

3. The applicant’s 2006 request for transfer did not result in a new contract. The Employment Tribunal had found that the parties never reached agreement on acceptable terms, and there was no basis for challenging that finding.

4. The repeated renewals were extensions of the existing post and contract. The asserted obligation to offer the new terms on each renewal therefore depended on the rejected contractual premise.

5. The Employment Tribunal had properly found, on the facts, that the failure to notify or renew on the new terms was not discriminatory. The Employment Appeal Tribunal found no error of law, and no realistic basis existed for disturbing that conclusion.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): on 21 March 2012, Rimer LJ refused the renewed application for permission to appeal.
• Employment Appeal Tribunal: by order dated 29 June 2011, dismissed the appeal from the Employment Tribunal: [2010] UKEAT 0232_10_2906.
• Birmingham Employment Tribunal: dismissed the claims for breach of contract, less favourable treatment on grounds of fixed-term status, race discrimination, age discrimination and unfair dismissal; reasons were sent on 9 March 2009.