Ms Lobo was employed by an NHS Foundation Trust ("the Trust") as a Locum Consultant Breast Surgeon under a series of fixed-term contracts from February 2016. She worked part time: 60% of full time hours. She acquired four years' continuous service on 22 February 2020. In 2019 the Trust started a review of its Breast Service, which was delayed by the COVID-19 pandemic. By 2021 the Trust decided to appoint a "substantive" Consultant Breast Surgeon and ringfenced this post for Ms Lobo. However, she was not successful at interview in September 2021. The role was advertised nationally and Ms Lobo applied again. Ahead of being interviewed again, Ms Lobo brought employment tribunal proceedings seeking 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 Trust. If this declaration had been granted she would have become a permanent employee. The FTR do not give a tribunal the power to appoint a fixed term worker to a substantive post. The effect of a declaration is that the contract would cease to be a fixed term contract, but in all other respects the terms and conditions would remain the same.
The Trust successfully argued at the employment tribunal that Ms Lobo was not entitled to such a declaration because her continued employment under a fixed-term contract was justified on objective grounds. The Tribunal had accepted the Trust's case that there was a need to recruit a permanent substantive consultant. By retaining Ms Lobo on a fixed term contract the Trust ensured it continued to meet its legitimate aim of providing a safe, efficient and fully functioning Breast Service, in the intervening period ahead of the substantive appointment. There was a genuine time-limited requirement that was appropriately filled by extending Ms Lobo’s fixed-term contract. In coming to this decision the Tribunal made seven findings of fact about the differences between Ms Lobo's locum role and that of a substantive Breast Surgeon's.
Ms Lobo contended that the decision not to appoint her had not been made in good faith. The Tribunal's decision made clear that this was not a case about Ms Lobo's relationship with colleagues, or the substance or process in relation to complaints made against her by others, or the grievance she had in turn raised. The question was limited to whether, at the time of the most recent renewal of Ms Lobo's employment under a fixed-term contract, the use of a further fixed term was or was not justified on objective grounds, and it was held that it was justified. Ms Lobo appealed unsuccessfully to the Employment Appeal Tribunal (EAT).
The EAT held that the Tribunal had made “an impeccable direction as to the law”. The EAT also found the Tribunal were correct to find that there were significant differences between the locum and consultant's role such that the new role was not a continuation of Ms Lobo’s.
What this means for employers?
Cases about the FTR are, as the EAT said, "a little off the beaten track". The purpose of the FTR are to prevent abusive practices with the mechanism for a declaration operating to remove the effect of an fixed term provision unless objective justification is made out. This case confirms that the same approach to objective justification as is well established in discrimination law is applied in arguments about whether such a declaration should be made
Lobo v University College London Hospitals NHS Foundation Trust
