Royal Surrey County NHS Trust v Drzymala 2018 UKEAT_0063_1101 11 January 2018

Unfair Dismissal Following Non- Renewal of a Fixed Term contract.

A Locum Consultant specialising in Cancer was employed on a fixed term contract that had already been renewed 4 or 5 times.  She applied for a position as a permanent consultant and was unsuccessful.  Following the interview she was told that a position as a Specialist Doctor was available and she could apply for that.  A Specialist Doctor has lower status than a Consultant and her appointment would have amounted to a demotion.

In the event the employee did not apply for the Specialist Doctor’s position and was absent from work due to ill health when she was notified that her contract would not be renewed.  She was given 3 months’ notice of the termination of her contract.

The employee succeeded in her claim for unfair dismissal in the Employment Tribunal on the basis that the NHS Trust had failed to raise again the possibility of her applying for the Specialist Doctor’s role.  Neither did it bring any other suitable alternative employment positions to her attention.  The Trust sought to rely on the 2002 Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations, and argued that it was entitled to terminate employment by non-renewal of a fixed term contract and was not under any obligation to source suitable alternative employment.  The Employment Appeal Tribunal agreed, but emphasised that the claim was for unfair dismissal under s98(4) of the ERA 1996 and fairness depended on the facts of the individual case. In this case the Trust had raised the possibility of an alternative role and it was unfair of them not to discuss this further with her, and unfair of the Trust not to consider any other suitable roles for her or to provide a timely appeal.

It is not contested that non-renewal of a fixed term contact can be fair for “some other substantial reason”. The fairness of the decision not to renew the contract has to be considered with reference to the Employment Rights Act 1996, and with specific regard to whether the employer acted reasonably or not, and whether its decision falls “within the band of reasonable responses.”

Crawford v Network Rail Infrastructure 2017 UKEAT 0316_16_0811 (18 November 2017).

Entitlement to a 20 minute rest break under the Working Time Regulations 1998

A lone signal man working for network rails is required to work 8 hour shifts, is permanently on call, and is not able to take a continual break of at least 20 minutes away from his place of work.  He may have several breaks of 5 minutes each, but he cannot have a continual break of at least 20 minutes.  The Working Time Regulations states that workers who work more than 6 hours are entitled to a 20 minute rest break, but there are exclusions, including railway workers.  Nonetheless, if a break as specified under the WTR is not available then the employee is entitled to take compensatory rest.  The intention is to protect the health and welfare of the individual workers.

The Employment Tribunal accepted that the 5 minute rest breaks taken cumulatively amounted to more than a 20 minute break and that the employer had therefore complied with its statutory obligations to provide compensatory rest.  The Employment Appeal Tribunal disagreed.  The requirement is for a single uninterrupted rest break of at least 20 minutes, albeit that the employee may remain on call throughout this period.

Eyres v Air Vane Compressors Ltd {2017} UKEAT 0347_16_0611

TUPE Transfer of MD’s employment from Excel to the Respondent, Air Vane Compressors Ltd

The Employment Tribunal found that the Claimant’s employment had transferred to Air Vane Compressors Ltd, but that subsequently he had agreed to return to work for Excel and his employment with Air Vane had been terminated.  If Excel was his employment on the date of his resignation then he would have no claim against Air Vane either for unfair dismissal or a failure to pay wages due, or compensation for loss of earnings.


The facts of this case as recorded by the Employment Tribunal are unclear.

I is undisputed that the respondent had purchased Shares in the Claimant’s company, Excel, amounting to 67% of the total.

Following a subsequent restructure all Excel’s employees (other than the Claimant) were consulted about a TUPE transfer to Air Vane Ltd.  The transfer of all employees, including the Claimant, transferred on 1 July 2015.

Subsequently the Claimant and the Directors of Air Vane Ltd could not agree the terms of the Claimant’s service agreement with Air Vane Ltd.

Air Vane claimed it was orally agreed that the Claimant’s employment with Air Vane would terminate and he would return to work for Excel.  This was never confirmed in writing.

On or around 16th September it was allegedly agreed that Excel would employ the Claimant in future and pay his salary.  The Claimant returned to his position as MD of Excel and was paid by Excel, but he continued to work exclusively on Air Vanes accounts, and Excel invoiced Air Vane for the work done.

After November 2015 the Claimant ceased to be paid for any work done for Air Vane Ltd.  He resigned his employment on 29 February 2016, claiming that his continuing employment had been made untenable by Air Vane’s failure to pay his wages.

The Claimant claimed he had been unfairly dismissed by Air Vane, who became his employer following the TUPE transfer of 1 July 2015.  Air Vanes subsequent failure to pay his salary amounted to a fundamental breach of contract.  The Claimant resigned his employment as MD for Excel and issued proceedings against Air Vane Ltd. The ET found that the Claimant, at the date of his resignation, was an employee of Excel and not an employee of Air Vane Ltd, and therefore had no claim for unfair dismissal or for unpaid wages.

The EAT disagreed.  There were findings of fact made by the ET that rendered its decision unsafe.

Although a contract can be orally varied, when this occurred, or what was agreed, was unclear.

The Employment Tribunal had to make findings of fact about the date of the meeting to discuss the variation and decide exactly what was agreed.  It also had to take into account the non-oral variation clause contained in the Claimant’s service agreement.  The implications of TUPE could not easily be evaded.  The Claimant may have wrongfully identified his employer as Excel.   He may have continued to be employed by Air Vane Ltd, and the Employment Tribunal had to make findings of fact to clarify the position.

The Claimant said he had never agreed to the ending of his employment with Air Vane and his existing service agreement contained a clause expressly prohibiting oral variation.  It is the Claimants case that any variation of his employment contract had to be in writing and this had not happened.  The case was remitted to another Employment Tribunal to determine the Claimant’s employer on the termination date and whether any oral agreement was made to vary the Claimant’s contract, and if so, the content of that agreement and whether this was permissible taking into account the non-oral variation clause.

Basra v BJSS Ltd [2017] UKEAT 0090_17_1912 (19 December 2017)

 The employer was concerned that one of its employees appeared to be underperforming following receipt of a number of customer complaints.  It therefore invited the Claimant to attend a meeting.  The contents of that conversation are disputed.  The Claimant claimed his employer asked him to resign, whereas the employer claimed it was the employee who asked for the opportunity to resign.  The Employment Tribunal preferred the employers evidence.

The Claimant was then invited to a disciplinary hearing on 1 March 2016. On the same date it sent a “Without Prejudice subject to contract” letter to offering the claimant 3 months’ salary if he resigned with immediate effect.   The Claimant replied on 3 March 2016 accepting 3 months’ salary subject to contract and without prejudice and agreeing the 3 March (today) would be his last day of work.

The Employment Tribunal found that the employee’s employment terminated on 3 March 2016 and that he resigned on that date.  He did not attend work after 3 March and subsequently obtained a fit note from his GP stating that he was unfit for work.  He submitted an expenses form on 7 March as he said he would in his correspondence on 3 March 2016.

The Claimant chased for his employer for a settlement agreement that was not forthcoming.  As a result he did not sign a settlement agreement, and as the termination date was dependent upon that the Claimant argued that his employment continued unto 15th March when his employer wrote to him terminating his employment.

The Employment Tribunal decided to ignore all the Without Prejudice conversations and communications other than the Claimants alleged resignation letter.  They did this on the basis that the protection offered by s111A of the 1996 Act could not be waived.  The EAT concluded that the ET was wrong to exclude previous WP communications and the case was remitted to the same Tribunal to reconsider all the correspondence.   This was because if the ET had considered the offer letter it would have been clear that the Claimant’s letter accepting its terms was not a resignation.

If you have questions over any of these recent employment law cases, or if any of the issues discussed may be an issue for you, then please call Elizabeth Whitehead in rhw’s employment team.  Call rhw solicitors in Guildford on 01483 302000 or email