Employment Law Case Update: Royal Surrey County NHS Foundation Trust v Drzymala

Ms Drzymala qualified as a doctor in 1987. She developed a specialism in cancer and worked at various hospitals, improving her qualifications and experience. From April 2005, she worked as a Locum Consultant in the Oncology Department at Royal Surrey County Hospital. In November 2011 she was employed on successive six month fixed-term contracts and was interested in obtaining a permanent appointment.

In April 2014, Ms Drzymala applied for a permanent position as an Acute Oncology Breast Cancer Doctor. She and another candidate were interviewed for the post, with her interview taking place on 28 May 2014. Twenty minutes after the interview, two of the interview panel, Dr Cummins, the Clinical Director, and Mrs Freeman, the Trust's Deputy Director of Operations, told Ms Drzymala that she had been unsuccessful and that the other candidate had scored higher and had been selected for the role.

Ms Drzymala brought a claim to the Employment Tribunal, arguing that the real reason for not renewing her fixed term contract was age discrimination.  As she had more than two years' service, she also claimed unfair dismissal. The Tribunal found that the reason for the dismissal was a potentially fair reason, namely that Ms Drzymala’s locum contract had come to an end. They rejected Ms Drzymala’s proposition that she had some sort of legitimate expectation of being preferred to the successful candidate for the permanent post.

The Employment Appeal Tribunal upheld an Employment Tribunal's decision that the dismissal was not discriminatory on the grounds of age; but it did find that Ms 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 not renewing the fixed term contract must be considered against similar considerations as in any other dismissal case. The main problems here was that the Trust had not gone to adequate lengths to discuss the possibility of alternative employment with Ms Drzymala and had not offered Ms Drzymala the right of appeal against the non-renewal of her fixed term contract.

Employers should remember where a locum has accrued more than two years' service, but is unsuccessful for a permanent role, 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 should be followed if a decision is taken to terminate their contract by not renewing it.

This article is from our weekly Employment Law Newsletter published on 08/02/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

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