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

For regulation 8 of the Fixed-Term Employees (Prevention of less favourable treatment) Regulations 2002, it is the latest fixed-term renewal which must be objectively justified, although the history of prior renewals may inform that assessment. A tribunal's conclusion on objective justification will not be disturbed merely because another tribunal might have decided differently.

In a whistleblowing detriment claim, the tribunal must determine the alleged detriments and whether protected disclosures materially influenced them. In assessing procedural fairness under section 98(4), it must not substitute its own hindsight view that proper procedure would have made no difference; it must assess the employer's conduct and then address any Polkey consequences.

The claimant was a senior post-doctoral research scientist employed under successive fixed-term contracts. His final contract expired on 31 March 2019. Following allegations that his supervisor had appropriated his research, the employment relationship broke down and further funding was not secured.

The Employment Tribunal sitting in Reading dismissed claims that the claimant had become permanent under regulation 8, had suffered whistleblowing detriments, had been unfairly dismissed for redundancy, and was disabled for the purposes of the Equality Act 2010. He appealed on those four grounds.

The central issues were whether the fixed-term renewal was objectively justified, whether protected disclosures materially influenced the alleged detriments, whether the redundancy dismissal was procedurally fair, and whether the disability finding was perverse.

1. Appeal allowed in part. Grounds concerning whistleblowing detriment and procedural unfair dismissal succeeded. Those claims were remitted to a fresh tribunal. The challenges to the regulation 8 and disability findings failed.

2. Under regulation 8 of the Fixed-Term Employees (Prevention of less favourable treatment) Regulations 2002, the relevant question was whether the final renewal, from 1 April 2016 to 31 March 2019, was objectively justified. Earlier renewals need not each be justified, though their number and duration may be relevant. The Employment Tribunal had adopted the wrong formulation, but it was entitled on the evidence to find that grant-dependent funding and the temporary management of the role objectively justified the fixed term. Its conclusion was not perverse.

3. The Employment Tribunal had found protected disclosures but neither made findings on the alleged funding and non-renewal detriments nor considered whether the disclosures materially influenced them. Its finding that the relationship breakdown was the primary reason did not resolve whether the disclosures themselves, rather than merely their manner, materially influenced that breakdown. The whistleblowing issue therefore required reconsideration under section 47B of the Employment Rights Act 1996.

4. On procedural fairness, the Employment Tribunal made the error identified in Polkey v Dayton Ltd [1988] 1 AC 344: it asked whether procedural adjustments would have changed the eventual outcome. It did not decide whether the employer reasonably regarded further consultation or a search for alternative work as futile, nor whether and when a fair dismissal would have occurred. The section 98(4) claim and remedy were remitted.

5. The Employment Tribunal was entitled to find that the claimant had not shown a substantial and long-term adverse effect at the relevant time. Its conclusion that he was not disabled between December 2018 and March 2019 was not perverse.

• Employment Appeal Tribunal: appeal allowed on grounds concerning whistleblowing detriment and procedural unfair dismissal; those issues remitted to a fresh tribunal. The appeal was dismissed on the fixed-term employment and disability grounds: [2024] EAT 156.
• Employment Tribunal, Reading: judgment sent out on 12 September 2022 dismissing the claimant's claims.