So you employ an individual on a series of fixed term contracts and after four years they seek a declaration that they should have been given a permanent employee job doing basically the same thing. Does that sound fair? Well, in Lobo v University College London Hospitals NHS Foundation Trust, the Employment Appeal Tribunal said, no.
The Law
Before we delve into the facts and outcomes of this case, a high-level overview of the relevant law. Under regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, employees who have been continuously employed for four years or more on a series of successive fixed-term contracts are deemed to become permanent employees in their current roles unless the continued use of fixed-term contracts can be objectively justified. The latter of course pushes the burden onto the employer to provide a good reason why the employee shouldn’t be deemed a permanent employee, i.e. that the fixed term arrangement serves a specific and business critical purpose. However, an important point to be made is that under regulations employees do not become entitled to just any available role on a permanent basis, but only to their role in its existing form that becomes permanent. This of course implies that the business needs that specific role to be permanent.
Therefore, turning to this case, the Trust had to show that it could objectively justify Ms Lobo’s continued employment under a fixed-term contract, and that...
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