Objective Justification for Extended Fixed-Term Contract (EAT)

James Williams

In Ms Cheryl Lobo v University College London Hospitals NHS Foundation Trust [2024] EAT 91, the EAT held that:

  • The continued employment of the Claimant under a fixed-term contract as a locum Consultant Breast Surgeon on its last renewal was justified on objective grounds.

The Claimant, Ms. Cheryl Lobo, was employed by the Respondent as a Locum Consultant Breast Surgeon under a series of fixed-term contracts. She acquired four years of continuous service on 22 February 2020. Ms. Lobo sought a declaration under regulation 9(5) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (“FTR”) that she had become a permanent employee of the Respondent. Under the circumstances of this case, the Claimant would have become a permanent employee unless her continued employment under a fixed-term contract was justified on objective grounds.

The Claimant worked under a series of fixed-term contracts with the Respondent starting from 22 February 2016. Her role was primarily clinical, focusing on patient care, and she was described as a “locum.” In 2019, the Respondent began a review of the Breast Service, which was delayed by the COVID-19 pandemic. By 2021, the Respondent decided to appoint a substantive Consultant Breast Surgeon, and although the Claimant applied for this role, she was not successful.

The Employment Tribunal (ET) examined whether the Claimant’s continued employment under a fixed-term contract was justified. It noted the differences between the locum Consultant role and the substantive Consultant role. The locum role was mainly clinical, while the substantive role included significant managerial, teaching, and research responsibilities. The ET found that the Respondent’s decision to maintain the Claimant’s fixed-term status was justified due to the ongoing review and reorganisation of the service.

The ET concluded that the Respondent had legitimate objective grounds for continuing the Claimant’s fixed-term contract. These included ensuring the Breast Service was not understaffed and maintaining flexibility during the review process. The ET also considered the provision of coaching for the Claimant prior to her interview for the substantive role, highlighting the Respondent’s efforts to support her.

The EAT upheld the ET’s decision, confirming that the Respondent’s use of a fixed-term contract was justified and appropriate in the given circumstances.

Ms Cheryl Lobo v University College London Hospitals NHS Foundation Trust: [2024] EAT 91

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.