In Royal Surrey County NHS Foundation v Drzymala Ms Drzymala had been employed as a locum doctor on a series of fixed term contracts lasting nearly three years. Her role was made permanent and she was involved in a competitive interview process in which she was unsuccessful. After she was informed she had not got the role, mention was made of a role as a specialist doctor but this wasn't taken any further. Ms Drzymala was subsequently informed that her fixed term contract would not be renewed. She was not offered an appeal against the non-renewal of the contract and no further mention was made of alternative employment. She subsequently claimed unfair dismissal and age discrimination.
Before an Employment Tribunal the age discrimination claim failed, but the unfair dismissal claim was successful. Although the Tribunal had found that there was a potentially fair reason for the dismissal they were concerned about both the failure to offer an appeal against the non-renewal of the contract and the failure to discuss alternative employment, in particular the specialist doctor role. The combined effect of those two features led the Tribunal to conclude the dismissal was unfair.
The NHS Trust appealed on the basis that because it had complied with the non-discrimination regime set out under the Fixed-term Employee Regulations the dismissal was fair. However, the EAT rejected this contention. The non-renewal of a fixed term contract should be considered in the same way as any other dismissal - the fairness depends on the facts of the particular case and the fairness test set out in the Employment Rights Act 1996. Employers should be careful, particularly where the fixed term employee has 2 years or more service, to ensure that there is both a potentially fair reason and that a fair procedure has been followed.