EAT JURISDICTIONAL POINTS: Worker, employee or neither
CONTRACT OF EMPLOYMENT: Whether established
PRACTICE AND PROCEDURE: Split hearings
The ET erred in holding that contracts for the employment of a locum consultant entered into in breach of the National Health Service (Appointment of Consultants) Regulations 1996 as amended were not ultra vires. However the ET did not err in holding that even if they were ultra vires, the locum consultant was an employee within the meaning of the Employment Rights Act 1996 and could pursue a claim for unfair dismissal in respect of the non renewal of his contract. Dicta of Rix LJ in Eastbourne Borough Council v Foster  ICR 234 applied and status of workers performing duties under an ultra vires contract considered.
Perversity in holding that a position as a locum consultant was ‘distinct and different from that of the substantive post’ and that dismissal was for redundancy when the locum consultant post was not renewed notwithstanding that the substantive consultant post was vacant.
The ET erred in determining remedy when the Employment Judge had agreed with the parties that there would be a split hearing.
Findings of unfair dismissal and breach of contract set aside. Decision dismissing claim for contractual redundancy payment substituted. Unfair dismissal claim remitted for rehearing to a different ET.
 UKEAT 0499 – 08 – 2108
Updated: 04 August 2022; Ref: scu.375199