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Implied Terms

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[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for providing this case summary]

The EAT (HHJ Pugsley) has handed down its decision in Tasneem v Dudley Hospitals, which is authority for the proposition that there was no implied term in the claimant's contract of employment that he be informed of the opportunity of a new consultant's contract on offer in the NHS.

The Claimant was a locum consultant. In 2006, for quality reasons, the NHS Trust increased the number of substantive consultants over locums. The Claimant did not succeed in getting a substantive post and was dismissed from his locum post. The employment tribunal found this was for some other substantial reason and was fair. The claimant made various claims including breach of contract, the latter based on earlier events.

In September 2003 the NHS had sent a letter to NHS employers requiring that they give all consultants the opportunity of intimating by 31 October whether they wished to commit to a new contract. As the Claimant was not on the email system this was not copied to him. But the tribunal found that he was well aware of it and could have applied, but for his own reasons did not reply until after the deadline.

The EAT held that the Trust was not in breach of contract in not expressly informing him of the new contract. Scally v Southern Health and Social Services Board [1999] IRLR 215 could be distinguished. There it was found an employee cannot reasonably be expected to be aware of a change in pension arrangements. In this case the Claimant could reasonably be expected to know about the new contract opportunity and, as a matter of fact, did know.

The EAT also agreed the employment tribunal was right to dismiss the Claimant's claims for less favourable treatment on ground of fixed term status, race discrimination and unfair dismissal.