Dr A Moghaddam v Chancellor, Masters and Scholars of the University of Oxford & Ors

The Employment Appeal Tribunal considered appeals against an employment tribunal judgment dismissing claims by Dr Moghaddam including (i) that successive fixed-term renewals automatically converted his contract to a permanent one under regulation 8 of the Fixed-Term Employees (Prevention of less favourable treatment) Regulations 2002, (ii) that he suffered detriments because he made protected disclosures, (iii) that his dismissal was procedurally unfair under section 98(4) of the Employment Rights Act 1996, and (iv) that he was disabled within the meaning of section 6 Equality Act 2010 so as to attract reasonable adjustments.

The EAT held that the employment tribunal was entitled to find that the final renewal from 1 April 2016 to 31 March 2019 was objectively justified and therefore did not err in rejecting the claim under regulation 8. The EAT found, however, that the tribunal had failed adequately to determine whether specified detriments occurred and whether the protected disclosures materially influenced them, and had erred in its treatment of the procedural unfairness complaint by undertaking the Polkey-style enquiry itself instead of assessing whether it was reasonable for the employer to conclude that further consultation or searching for alternative employment would have been futile. Those parts of the whistleblowing and unfair dismissal claims were remitted for further consideration. The tribunal’s conclusion that the claimant was not disabled at the relevant time was not perverse and was left undisturbed.

Background and parties: The appellant was employed by the University of Oxford on successive fixed-term contracts until 31 March 2019. He worked in Professor Sattentau's laboratory and raised complaints in 2018 that the professor had appropriated his work. Those complaints were found by the tribunal to be qualifying protected disclosures.

Procedural posture: The employment tribunal (Reading) after an eight-day hearing dismissed the claimant’s claims on 12 September 2022. The appellant appealed to the Employment Appeal Tribunal which heard argument on 11 July 2024 and delivered judgment on 30 September 2024.

Nature of the claims: The claimant sought declarations and remedies on multiple grounds: conversion to permanent employment under regulation 8 of the 2002 Regulations, unfair dismissal (including procedural unfairness under section 98(4) ERA), whistleblowing detriments contrary to section 47B ERA, and disability discrimination/ failure to make reasonable adjustments under the Equality Act 2010.

Issues framed by the EAT:

• Whether the final fixed-term renewal was justified on objective grounds under regulation 8 of the 2002 Regulations.
• Whether the tribunal adequately determined whether the claimant suffered the alleged detriments and whether the qualifying disclosures materially influenced any such detriments.
• Whether the tribunal properly applied the test for procedural unfairness under section 98(4) ERA without committing the Polkey error.
• Whether the tribunal’s factual conclusion that the claimant was not disabled at the relevant time was perverse.

Reasoning and conclusions: The EAT applied the established legal test for objective justification under regulation 8, drawing on authority cited in the judgment, and concluded that although the tribunal’s reasoning could have been clearer and arguably misdirected by looking at earlier renewals, the tribunal had all relevant material facts in mind and its conclusion that the fixed-term renewal was justified was not perverse. On the whistleblowing detriment claims the EAT found that the tribunal had not made sufficiently clear findings about (a) whether the alleged detriments occurred, (b) whether the protected disclosures materially influenced the respondents’ conduct, and (c) whether any breakdown in the relationship was itself materially influenced by the disclosures or was caused by the manner of the communications; those issues were remitted. On procedural unfairness the EAT concluded the tribunal had fallen into the error exemplified in Polkey by effectively asking whether procedural steps would have changed the outcome rather than assessing whether it was reasonable for the employer to conclude that further consultation or searching for alternative employment would have been futile; that issue was remitted. The tribunal’s finding that the claimant was not disabled in the relevant period was upheld as not perverse and therefore no further consideration of reasonable adjustments was required on that statutory basis, although the EAT noted those matters may remain relevant to the remitted procedural unfairness issues.

Appeal allowed in part. The EAT upheld the tribunal’s finding that the final fixed-term renewal was objectively justified under regulation 8 of the Fixed-Term Employees (Prevention of less favourable treatment) Regulations 2002 and that the claimant was not disabled within the meaning of section 6 Equality Act 2010. However, the EAT allowed the appeal on the whistleblowing detriment and procedural unfairness grounds, concluding that the tribunal had failed to make adequate findings about whether the alleged detriments occurred and whether the protected disclosures materially influenced them, and had erred by effectively conducting a Polkey-style assessment itself rather than determining whether the employer’s decision not to consult further or to seek alternative employment was reasonable; those issues were remitted to a fresh tribunal for reconsideration.

The claimant first litigated these claims in the employment tribunal (Reading), which after an eight-day hearing dismissed his claims and sent its judgment on 12 September 2022. The claimant appealed to the Employment Appeal Tribunal which delivered judgment in this appeal as [2024] EAT 156 on 30 September 2024.