The Employment Appeal Tribunal (EAT), in the case of Royal Surrey County NHS Foundation Trust v Drzymala, has outlined the care that NHS Trusts must take when terminating locum consultants who have been unsuccessful in seeking appointment permanently.
Dr Drzymala had been employed by Royal Surrey County NHS Foundation Trust ('the Trust') on a series of fixed-term contracts as a locum consultant in Oncology. However, when a permanent post-holder was appointed instead of her through a competitive procedure, the Trust did not renew Dr Drzymala's last fixed term contract.
Dr Drzymala claimed that the real reason for not renewing her fixed term contract was age discrimination. As she had more than two years' service, Dr Drzymala also claimed unfair dismissal.
The EAT upheld an employment tribunal's decision that the dismissal was not discriminatory on the grounds of age; but it did find that Dr Drzymala was unfairly dismissed.
The dismissal did not need to be discriminatory, or less favourable because of fixed-term status, to simply be unfair. The EAT noted that the non-renewal of a fixed term contract must be considered against similar considerations in terms of reasonableness and fair procedure as any other dismissal; they are not a special case attracting different considerations from those normally considered.
The main problems here were that:
- the Trust had not gone to adequate lengths to discuss the possibility of alternative employment with Dr Drzymala; and
- the Trust had not offered Dr Drzymala the right of appeal against the non-renewal of her fixed term contract.
Strictly speaking, Trusts should not engage locum consultants for more than two periods of 6 months, in order to comply with the NHS (Appointment of Consultants) Regulations. However, this rule is rarely observed. It often takes Trusts years to convene AAC panels and make permanent appointments. In the meantime, locums often accrue more than two years' service and the right to claim unfair dismissal.
Where a locum consultant has accrued more than two years' service, but is unsuccessful at the AAC panel appointment, the decision as to whether or not to renew their contract should not be taken lightly. Fairness dictates that alternative roles should be searched for and a fair process followed if a decision is taken to terminate their contract by not renewing it.
If you wish to discuss this case further, please contact Alastair Currie, or your usual Bevan Brittan contact.