Miss Cheryl Lobo v University College London Hospitals NHS Foundation Trust — 2022

Miss Cheryl Lobo was employed by University College London Hospitals NHS Foundation Trust as a locum consultant breast surgeon on successive fixed-term contracts from 22 February 2016. The tribunal found that she had four years' continuous service by 22 February 2020, so the issue was whether the most recent renewal of her fixed-term contract was objectively justified for the purposes of regulation 8(2)(b) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, and whether she was entitled to a declaration under regulation 9 that she was a permanent employee.

The tribunal accepted the Trust's evidence that it had been reviewing the Breast Service from 2019 onwards because of internal personnel changes and wider strategic work with neighbouring trusts, and that the review only concluded in late spring 2021. It found that locum consultant work was a service-delivery role, whereas the substantive consultant post carried wider management, governance, teaching and research responsibilities and was required to be filled through the AAC process. Although the claimant argued that the locum and substantive posts were in substance the same and that management was not intrinsic to the substantive role, the tribunal accepted that management and leadership could be assessed at interview and that the claimant did not demonstrate those skills in the selection process.

The tribunal also found that the respondent had not acted in bad faith. It noted that the Trust had ring-fenced the substantive post for the claimant initially, provided coaching, and allowed her to interview, but she was unsuccessful. Taking the service review, the need to maintain safe clinical cover during the pandemic, and the distinction it found between the locum and substantive roles together, the tribunal held that the continuation of the fixed-term contract was objectively justified. It therefore declined to make the declaration sought and dismissed the claim.