Royal Surrey County NHS Foundation Trust v Drzymala

Non-renewal of a fixed-term contract may provide a potentially fair reason for dismissal, usually some other substantial reason, but fairness remains governed by the ordinary fact-sensitive test in section 98(4) of the Employment Rights Act 1996. Compliance with the fixed-term employees' non-discrimination regime does not itself establish that dismissal was fair.

The band of reasonable responses protects an employer's managerial judgment, such as selection for a permanent post. It does not prevent a tribunal from finding procedural unfairness where, on the facts, the employer abandons a dialogue about possible alternative work and fails to afford a timely appeal. There is no general duty to discuss alternative employment whenever a fixed-term contract expires.

The Claimant was a locum consultant employed by the Trust on successive fixed-term contracts. She unsuccessfully applied for a permanent consultant post. Her final contract was not renewed when the post was filled permanently, which constituted a dismissal. Her age-discrimination claim failed.

The Employment Tribunal, by a decision sent on 20 January 2016, upheld her unfair-dismissal claim. It found that the Trust had raised but then deliberately avoided discussion of a possible Specialty Doctor role, and had failed to give a timely right of appeal. The Trust appealed, alleging misdirection, inadequate reasons, misunderstanding of its case, and perversity.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal was unfair.

2. Expiry without renewal of a fixed-term contract is a dismissal and can amount to some other substantial reason. It is not, however, a special category of dismissal. Fairness is determined under section 98(4) of the Employment Rights Act 1996 on the particular facts.

3. The Tribunal had not substituted its own view for the Trust's managerial judgment. It accepted that the successful candidate could properly be preferred for the permanent post. The band of reasonable responses was relevant to that selection judgment, but the Tribunal's finding of unfairness concerned the Trust's procedure after it had initiated discussion of possible alternative employment and then withdrew from it.

4. In a dismissal for some other substantial reason, fairness may require discussion or consultation about alternatives where the facts warrant it. There is no general obligation to raise alternative employment whenever a fixed-term contract expires. Here, the Trust itself began a dialogue about another role, deliberately failed to pursue it, and denied the Claimant a timely appeal despite available potential roles. The Tribunal was entitled to regard the combined effect as unfair.

5. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 operate alongside unfair-dismissal law. Compliance with those Regulations did not provide a defence to the section 98(4) claim. The Tribunal's factual finding that potential alternative roles existed was supported by evidence and was not perverse.

• Employment Appeal Tribunal: Appeal dismissed: the Employment Tribunal's finding of unfair dismissal was upheld.
• Employment Tribunal (Reading): Decision sent on 20 January 2016. The Claimant's unfair-dismissal claim succeeded; her age-discrimination claim failed.