Locum Consultant Not Entitled to Permanent Contract

Under Regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, employees who have worked continuously for four years or more under a series of fixed-term contracts automatically become permanent employees unless the renewal of their employment on a fixed-term contract was objectively justified. Recently, the Employment Appeal Tribunal (EAT) considered whether such justification applied in the case of a locum consultant.

The consultant was employed by an NHS trust as a locum consultant breast surgeon. She applied to the Employment Tribunal (ET) for a declaration under Regulation 9(5) of the Regulations that she had become a permanent employee. The trust contested her application. The other conditions having been met, the ET had to consider whether her continued employment under a fixed-term contract was objectively justified.

Concluding that it was, the ET noted that one of the purposes of the Regulations is to guard against the abuse of fixed-term contracts. The trust contended that it had the legitimate aim of providing a safe, efficient and fully functioning Breast Service. Following a service review, the trust had identified a need to appoint a permanent consultant breast surgeon and it was appropriate to use a fixed-term contract for a locum consultant to secure the provision of services pending the appointment. There were key differences between her role and the permanent consultant role. The use of a fixed-term contract was neither abusive nor discriminatory. The ET also rejected her claim that the trust had not acted in good faith. She appealed to the EAT.

The EAT found that there was no error of law in the ET’s approach to the question of whether her continued employment on a fixed-term contract was objectively justified. The ET’s finding that the locum and permanent consultant roles were genuinely different also contained no error of law and was open to it on the facts. The ET had also provided more than sufficient reasoning for its decision that the trust had not demonstrated a lack of good faith, and that decision was not perverse. The appeal was dismissed.