Ms M Pasternak v Blackpool Teaching Hospital NHS Foundation Trust: 6004539/2025
JUDGMENT
The Judgment of the Tribunal is the claim for wrongful dismissal is dismissed.REASONS
[1]The claimant was employed by the respondent from 22 November 2023 to 19 November 2024 as a Clinical Assistant.[2]The claimant presented a claim of wrongful dismissal before the Tribunal. At a Case Management Hearing on 24 June 2025, Judge Benson recorded that the issue to be decided in the case was what was the claimant’s notice period. This was to be determined by a determination of whether the claimant was employed on a permanent or fixed term contract. The claimant says her notice period was that of a permanent employee in a clinical assistant role. It was agreed at the start of the hearing today that this was the statutory minimum notice period of one week’s notice pay as the claimant had completed one year’s continuous service with the respondent. The respondent says the claimant was not entitled to a week’s notice period as she was employed on a 12 month fixed term contract which had expired.[3]The claimant had originally brought a second claim for unfair dismissal. This claim was withdrawn on 24 June 2025 at the case management hearing as the claimant did not have two years continuous service at the date her contract terminated.[4]In August 2023, the respondent advertised for a full time Clinical Assistant band 3 role. Details of the role are at page 62 of the bundle. The role is stated to be a fixed term secondment role of 12 months duration. It was to cover the absence of a long term sickness of another employee. The job reference is 382-IMPF135-23.[5]The respondent uses an electronic recruitment system called TRAC. Vacant roles are advertised on TRAC, and documents relating to recruitment are uploaded to it. Applicants apply for vacancies using the TRAC system where posts are advertised. Documents relating to any offer of employment are send and uploaded via TRAC.[6]The claimant applied for the vacant role of Clinical Assistant using TRAC on 24 August 2023. She was relocating from a Band 4 role based in Liverpool to Blackpool to be closer to her partner. The claimant received an email on 23 August 2023 from an email address called “trac.jobs” confirming her application. The claimant was asked by email on 4 September 2023 to book an appointment via TRAC for an interview to take place on 11 September 2023.[7]The claimant was sent an alert to her personal email address on 12 September 2023. This confirmed that a conditional offer letter could be accessed on the TRAC system. A screenshot is at page 123 of the date the offer was uploaded to TRAC. A copy of the conditional offer letter is at pages 126-127. Page 123 confirms the claimant used the TRAC system to accept the offer on 16 October 2023.[8]The offer of employment at pages 126-127 says it is a conditional offer of the Clinical Assistant role, job reference 382-IMPF135-23. The offer was silent on whether the employment was fixed term or permanent. The claimant was required in the offer letter to upload a number of documents before the offer of employment was confirmed. The offer letter advised the claimant that she should not hand in her notice with her existing employer until she had received a confirming offer letter. The offer letter says the employment will be subject to the Agenda for Change terms and conditions of service.[9]The claimant provided the documents requested by the respondent and a contract of employment was uploaded to the TRAC system on 30 October 2023 (page 123). The respondent says the claimant would have received an automatic email from TRAC confirming this. The contract of employment is at pages 129-137. The contract of employment states that it is for a fixed term employment with a start date of 20 November 2023 and it terminates on 19 November 2024.[10]Page 123 is a screenshot of TRAC and it notes that the claimant was asked to accept the contract of employment when it was uploaded on 30 October 2023.[11]The claimant did not access the contract of employment and she did not accept it. The claimant says she did not receive an email alert with the contract of employment or a copy of the contract at any time until her employment ended.[12]The respondent points out that the contract of employment states that “If you do not return a signed copy within 3 months then we will assume that you have agreed to the terms and conditions of this agreement upon working your first paid shift at the trust”.[13]The claimant says she did not know she had been issued with a contract of employment and that she thought she had been employed on a permanent basis. She points out that she was previously employed on a higher band 4 role in Liverpool on a permanent basis. The claimant would not have agreed to a lower band role on a fixed term basis.[14]The claimant was asked at the hearing about an email on page 104 from an NHS Anti Fraud Specialist. This states that the claimant had been suspended by Liverpool University Hospital on 27 March 2023. The respondent states that is the reason why the claimant was prepared to accept a lower band fixed term role. The respondent was not aware of the claimant’s suspension from another NHS Trust when it made the offer of employment.[15]The claimant says she was not aware that she was employed on a fixed term contract rather than a permanent one until her employment ended and she did not receive notice pay. The claimant emailed Kim McGuire, Acute Medical Manager, about this. An email on page 119 from Ms McGuire stated that the claimant was not employed on a fixed term contract. Ms McGuire later investigated this and was told that the claimant had been appointed to a fixed term contract. Ms McGuire sent an email to the claimant on 28 November 2024 stating the contract was for 12 months. A copy of the contract of employment was sent to the claimant.Hearing
[16]The claimant attended the hearing in person and gave evidence. The respondent called two witnesses. The first was Kim McGuire, Acute Medical Manager. The second was Magdalena Prajzner, Recruitment Officer. The respondent produced a third witness statement for Eleanor Palmer Rigby but she did not attend the hearing as she is abroad. She is employed as an Assistant Director of HR. Wrongful dismissal (breach of contract)[17]The burden of proof in a wrongful dismissal claim is on the claimant. The burden of proof is the balance of probabilities.[18]Where the maximum duration of a contract has been fixed at the outset, that contract will terminate automatically on the expiry date. No notice is required, and no wrongful dismissal claim arises, on expiry of the fixed term. At common law, fixed-term contracts are said to be terminated automatically on the expiry date so there are no grounds for a wrongful dismissal claim if the contract runs its full term. But if an employer terminates a fixedterm contract before the contractual expiry date, then, in the absence of a notice term, it will be liable to pay for the remainder of the term. This is subject, however, to the employer’s right to dismiss summarily for gross misconduct and the employee’s duty to mitigate his or her loss.[19]As a fixed-term contract is a contract with a defined date of expiry, no notice need be given of its end date. Statutory notice rights do not apply either, because the end date is fixed in advance and there is no need to warn the employee when the job will end. An employee recruited, for example, under a fixed-term contract does not acquire what would be the normal statutory right to notice pay.[20]The job advertisement for the claimant’s post stated that it was a secondment of 12 months duration. The claimant applied for this post and she was successful in appointment. The claimant was sent an offer letter. She correctly points out that this document is silent on the duration of the position. The claimant regarded this document as her contract of employment. This letter states on the first line that it is a conditional offer subject to various conditions. Page 2 says that the claimant is not to hand in her notice until she receives a confirming offer letter. The offer letter says that the employment is subject to to Agenda for Change terms and conditions. I find that it should have been clear to the claimant that this document at pages 126-127 was not her contract of employment. It is clear that this is to be sent at a later date when certain checks have been carried out.[21]The claimant agrees that she was able to use the TRAC system. Attachment 5 to her witness statement confirms that she applied for a job using the TRAC system. The claimant applied for the role of Clinical Assistant using the TRAC online web system on 25 August 2023. She had to confirm a time for her interview using the TRAC system. I consider the claimant was able to use the online web recruitment known as TRAC, and she could access documents on it. I find that the contract of employment was uploaded to the TRAC system on 30 October 2023 as evidenced by the TRAC entry on page 123. I find that the claimant would have received an alert to this to her personal email as she had received other alerts from TRAC. The claimant did not access her contract of employment. If she had done, I find it would have been clear to her that she had been recruited to a fixed term 12 month role. I find that although the claimant did not accept the offer of employment on TRAC, she accepted employment on the terms offered given she worked under the terms of the contract for 12 months..[22]The claimant said at the hearing that she would not have left a permanent role to take up a fixed term role. I note however that she was suspended from her permanent position at that time. In these circumstances, I consider she would have accepted a fixed term position at a different NHS Trust.[23]If the claimant had responded to the alert on TRAC on 30 October 2023, I consider that she would have been aware that her contract was due to end on 19 November 2024. I note that Ms McGuire was of the understanding that the claimant was employed on a permanent basis. I accepted her explanation that she manages a large number of employees, approximately 120, and she cannot recall the terms each employee has been appointed on. Ms McGuire said she sent the email to Ms McGuire telling the claimant she was on a permanent contract in haste as she was busy. She did not check the claimant’s contract before she sent the email.[24]I find the claimant was not entitled to be given notice as she was employed under a fixed-term contract. She would have known this if she had checked her contract of employment uploaded to the TRAC system before she took up the position with the respondent.[25]As to the question of notice, I accept the Respondent’s submissions that the Claimant is not entitled to be given notice either by contract or under statute. At common law, a fixed-term contract expires on its stipulated expiry date and neither party is required to give notice. The parties could have terminated it earlier by giving notice in writing but neither party chose to do so. The claim of breach of contract/wrongful dismissal is not well-founded and is dismissed.