Dr K Fogg v The Oxford Centre for Islamic Studies — 2021

Dr Fogg was employed by the Oxford Centre for Islamic Studies on an initial five-year fixed term, followed by a one-year renewal. The tribunal held that the one-year renewal on a fixed-term basis was not objectively justified for the purposes of regulation 8 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, because the respondent could have achieved its aims with an open-ended contract terminable on notice. The effect was that, by the time of the dismissal, the claimant was to be treated as a permanent employee.

The tribunal found that the reason for dismissal was capability, namely that Dr Fogg had not shown sufficient progress in research and publication, with particular concern about his first book remaining unpublished. It accepted that, in the claimant's field, publication of a monograph would ordinarily be expected, but held that the dismissal was unfair because the claimant had never been warned that acceptance of the book for publication was required for renewal, had not been given clear standards, and had not been coached or supported towards that objective. The earlier one-year extension and the review committee's later recommendation did not cure that unfairness, and the appeal did not make the dismissal fair.

The wrongful dismissal or breach of contract claim was dismissed. The tribunal held that Dr Nizami's letter of 22 June 2018 gave more than three months' notice and validly terminated the contract on 30 September 2018, so there was no contractual notice breach. The direct age discrimination claim was also dismissed: the tribunal found that most of the alleged age-related comments were not made, one comment was brought far out of time and was not allowed to proceed, and the remaining allegations did not establish that age was the reason for the treatment complained of, including the dismissal.

The indirect sexual orientation discrimination claim failed because the tribunal did not accept that the respondent operated a PCP of preferring employees to be heterosexually married, and it found no basis for the separate open-conduct PCP claim. The victimisation claim, based on the response to the claimant's subject access request, was dismissed because the tribunal considered that the allegedly missing material was more likely missed in a difficult disclosure exercise than withheld because the claimant had made or threatened protected acts. Remedy was not determined in this judgment; a further remedy hearing was listed for 17 June 2021.