Cheryl Lobo v University College London Hospitals NHS Foundation Trust

Under regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, objective justification for a renewed fixed-term contract must be assessed in its full workplace context. An employer may justify a further locum contract where it has a genuine, time-limited need to maintain services pending recruitment to a genuinely different substantive post.

The labels “locum” and “substantive” cannot evade the Regulations if they merely describe fixed-term and permanent forms of the same job. Whether the posts are genuinely different is a factual question for the Employment Tribunal. The appellate court will not interfere absent an error of law or perversity.

The claimant had worked since 2016 as a part-time locum Consultant Breast Surgeon under successive fixed-term contracts. Having acquired four years’ continuous service, she sought a declaration under regulation 9(5) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 that her employment had become permanent.

The Employment Tribunal found that the respondent needed a substantive, full-time consultant role with substantial management, governance, teaching and strategic responsibilities. It found that this was genuinely different from the claimant’s locum clinical role. Pending recruitment through the consultant appointment process, renewing the claimant’s contract maintained clinical provision for patients. The Tribunal held that renewal was objectively justified.

The claimant appealed, alleging errors in the formulation and application of objective justification, the distinction between locum and substantive roles, good faith, and a later appointment process.

1. Appeal dismissed. The Employment Tribunal made no error of law in concluding that the claimant’s continued employment under the renewed fixed-term locum contract was objectively justified.

2. Although the employer must identify its legitimate aim and the means adopted to attain it, the Tribunal determines which circumstances are relevant to objective justification. The Tribunal was entitled to consider the respondent’s genuine decision to recruit to a different substantive role as part of the context for renewing the claimant’s contract.

3. The Tribunal had found that the substantive role required materially greater management, teaching, liaison and strategic responsibilities. It was therefore not merely the claimant’s locum job made permanent under another name. That factual finding supported the conclusion that there was no need for a permanent locum consultant, but a time-limited need for the claimant’s clinical services while recruitment proceeded.

4. The respondent could properly secure safe and efficient patient care during that interim period by renewing the claimant’s fixed-term contract. It was not required to give her the substantive post, appoint different temporary surgeons, or leave the service understaffed. The duration of the interim requirement was fixed by the recruitment process, analogous to the finite engagement considered in [2011] UKSC 14.

5. The Tribunal’s rejection of the claimant’s assertion of a lack of good faith was neither perverse nor inadequately reasoned. Its balancing of potentially adverse matters against the respondent’s encouragement, ring-fencing and interview coaching was open to it. The later appointment issue was not a claim before the Tribunal and provided no proper basis for appeal.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 91.
• Employment Tribunal, London Central: The Tribunal refused the claimant’s requested declaration under regulation 9 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, holding that the latest renewal was objectively justified. Judgment was sent to the parties on 22 July 2022.