Nabili v Southern Health & Social Care ... [2009] NIIT 1613

THE INDUSTRIAL TRIBUNALS

CASE REF: 1613/07

CLAIMANT: Dr. Aqdas Nabili

RESPONDENT: Southern Health & Social Care Trust

DECISION

The unanimous decision of the tribunal is that the respondent was in breach of the employment contract in that it failed to give appropriate notice of termination and failed to provide the correct amount of paid annual leave. Damages of £5,577.84 are awarded to the claimant, being £4,850.30 in respect of pay in lieu of notice and £727.54 in respect of contractual annual leave.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mr J Nicholl

Mr J Hampton

Appearances:

The claimant appeared in person.

The respondent was represented by Mr F O’Reilly, BL, instructed by the Directorate of Legal Services for the Trust.

Facts Not in Contention

(1.) The claimant is and was at all material times a Consultant in paediatric medicine. She qualified as a Consultant in February 1998 and since that date has worked in the NHS, primarily as a locum engaged through medical staffing agencies. She was a direct NHS employee for three years from 2000-2003 and for the period during which she was employed by the respondent.

(2.) The respondent is an NHS Trust which incorporates the former Newry and Mourne Trust and is responsible for acute paediatric services delivered at Daisy Hill Hospital and for community paediatric services delivered at John Mitchell Place in Newry.

(3.) The respondent employed three Consultant Paediatricians in early 2006. It needed five Consultant Paediatricians but experienced difficulty in filling the two additional posts. Several recruitment competitions had failed to result in an appointment. There was some discussion between the respondent and a medical staffing agency (Minutes Medical) in early 2006 in which the agency offered the claimant’s services to the respondent but the respondent was unable to meet the introduction and other fees suggested by the agency. The claimant then worked as a locum through that agency with another NHS Trust in England.

(4.) In circumstances, which even after hearing five witnesses and after examining substantial documentation, are not entirely clear to this tribunal, the claimant was contacted directly by the respondent, in or around October 2006, to see if she was available to work for them as a directly employed locum Consultant, rather than through an agency. The claimant arrived in Newry on 20 November 2006 and the respondent regards her employment as having started on that date.

(5.) The claimant had an initial discussion with Dr Al Jarad, who, as Clinical Director in paediatric medicine, would be her line manager. He explained that the post on offer involved mainly community paediatric duties i.e. dealing with children with attention deficit disorder or autism, child abuse cases etc in an office in the respondent’s building in John Mitchell Place. The post also included on-call duties in acute paediatric medicine i.e. dealing with very ill children in Daisy Hill Hospital. Those acute on-call paediatric duties were at that point shared between the three Consultant Paediatricians then employed by the respondent. This resulted in a one in three rota. With the addition of the claimant, that became a rota of one in four.

(6.) The claimant then met Dr Loughran who as Medical Director was one step higher in the management chain than Dr Al Jarad. Mrs Siobhan Hynds, who worked in the respondent’s HR Department, was also present at that meeting. There was a discussion about salary and travelling expenses. The claimant then took up her duties. The basic salary paid to the claimant throughout her service with the respondent was £85,153.

(7.) On 20 January 2007, the respondent told the claimant that she was no longer required for on-call duties in acute paediatric medicine and the claimant was neither offered nor paid for such duties after that date. The claimant did not ask to resume those duties and thereafter worked as a Community Paediatrician in John Mitchell Place.

(8.) The respondent, in two separate letters dated 25 April 2007, gave the claimant notice of termination to take effect on, firstly 30 May 2007 and secondly 30 June 2007. The latter was the intended date of termination.

(9.) The claimant did not attend work for the respondent during June 2007 and was only paid up to 15 June 2007.

(10.) The claimant lodged a grievance with the respondent on 29 June 2007. That grievance raised a range of issues, including the issues before this tribunal. That grievance was heard on 9 June 2007 and was rejected.

The Issues

(11.) The claimant alleged that the respondent had been in breach of contract in that it had ;-

(I) failed to give sufficient notice to terminate her contract of employment;

(II) failed to pay salary from the period of 15 June 2007 to 30 June 2007;

(III) paid a lower salary than that agreed between the parties and/or properly due under the contract of employment;

(IV) failed to allow the claimant’s full contractual leave entitlement;

(V) failed to pay an agreed sum for travelling expenses;

(VI) removed the claimant from on-call duties and failed to pay on-call payments.

(12.) It could ordinarily be assumed that a claim of this nature, alleging specific breaches of contract, could be readily and simply resolved by reference to firstly, straightforward factual situations and secondly, to either a clear written contract of employment or to clear written agreements signed by the parties. Unfortunately this did not happen in the present case for a variety of reasons, some of which are set out below;-

(I) The respondent appointed the claimant without first ensuring that a written contract of employment was settled and signed by the parties.

(II) The claimant was appointed without a competition and there was therefore no contemporaneous documentation setting out the job content, pay, or travelling expenses arrangements.

(III) The Trust failed to record, and require the claimant to sign, a non-standard arrangement in relation to travelling expenses.

(IV) The respondent failed to properly record the circumstances in which the claimant ceased on-call duties in acute paediatric medicine.

(V) The respondent failed to make a contemporaneous and detailed record of how the claimant’s salary point had been calculated. The tribunal had to ask, on the third day of the hearing, for that calculation to be prepared and presented in writing. The tribunal heard evidence at different stages in the hearing that the claimant had on 20 November 2006 accumulated service as a Consultant of, variously, 9 years, 8 years and 2 months, 8 years and 4 months and at one point it was apparent that the respondent was not entirely sure what service the claimant had accumulated on the date of her appointment. The correct salary point was initially given in evidence to be £85,153 but by the fourth day of the hearing, this evidence was revised and the Trust asserted that the correct salary point was £79,812.

(VI) Mrs Hynds, the Trust’s HR Officer, whose office was close to that of the claimant, sent an unsigned copy of a contract of employment by post to the claimant’s London postal address in February 2007 rather than simply handing the contract to her with the view to having it signed. In any event, no contract was ever signed by both parties and this is a situation which could easily have been avoided.

(VII) The claimant, for her part, failed to appreciate the limits of the tribunal’s jurisdiction in this case. Despite repeated instructions from the Chairman she continued to attempt to introduce issues which were entirely outside the scope of the breach of contract claims which were before the tribunal. These extraneous matters included her failure to be short-listed in a competition for a substantive post as Consultant Paediatrician with the respondent, her pay and conditions when working previously for a medical staffing agency in other NHS Trusts, her views on appropriate staffing levels within the NHS, an alleged breach of confidentiality when an unsigned copy of the employment contract was left for her at her workplace, the fairness or unfairness of her termination etc.

(11.) The failure on the part of the respondent to take what would have amounted to basic pre-employment and post-employment steps in relation to the claimant, and the failure of the claimant to appreciate the limits of the tribunal’s jurisdiction, led to a hearing which was both unnecessarily protracted and contentious, and which almost pushed this tribunal beyond the point of mere exasperation.

The Law

(12.) The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 enables an employee to bring a claim for damages in respect of the breach of contract of employment in certain circumstances. Article 3 provides in material part;-

3. Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if-

(a) a claim is one to which Article 57 (2) of the No 2 Order applies and in respect of which a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine an action;

(b) the claim is not one to which Article 5 applies; and

(c) the claim arises or is outstanding on the termination of the employees employment.

Article 5 provides;-

5(1) This Article applies to a claim for breach of a contractual term of any of the following descriptions-

(a) A term requiring the employer to provide living accommodation for the employee;

(b) a term imposing an obligation on the employer or the employee in connection with the provision of living accommodation;

(c) a term relating to intellectual property;

(d) a term imposing a obligation of confidence;

(e) a term which is a covenant in restraint of trade.

Evidence and Findings of Fact

(13.) The tribunal heard evidence from;-

(i) The claimant;

(ii) Mrs Philomena Crossan who was the secretary who worked for the claimant and for other Consultant Paediatricians;

(iii) Mrs Siobhan Hynds who was the Medical Staffing Manager in the respondent’s HR Department;

(iv) Dr Paddy Loughran, the Trusts Medical Director and

(v) Dr Al Jarad, a Consultant Paediatrician and the respondent’s Clinical Director of Paediatric Medicine at the material time.

The tribunal was also referred to substantial documentation comprising approximately 700 pages.

(14.) This decision will deal in turn with each of the separate breach of contract claims as set out in paragraph (11) above.

Salary Amount

(15.) The claimant had previously worked through a medical staffing agency as a locum Consultant in various NHS Trusts. She was, on those occasions, employed by the medical staffing agency and paid an hourly rate of approximately £90 or £95 per hour. The agency would then bill the Trust for a higher amount and would in certain circumstances have charged an introduction fee.

Claimant’s evidence.

(16.) The claimant stated that she had saved the respondent a substantial sum of money by agreeing to work directly for the respondent on an NHS Consultant contract and thereby avoiding the higher agency rate. She claimed that, through her intercession, she had persuaded the agency (Minutes Medical) not to charge an introduction fee to which she argued the agency was entitled. No documentary or other evidence was produced to indicate that the agency had either sought to levy an introduction fee or had agreed to waive such a fee. In any event, the claimant clearly felt that she was entitled to some additional salary because of the savings which she alleged had been made by the respondent in not having to pay for her services through an agency.

The claimant’s evidence was that she had made it plain to Mrs Hynds, in a telephone call before arriving in Newry, that she would not work for any less than £95,000 per year basic salary. That was a “pre-requisite”. In her initial meeting with Dr Loughran and Mrs Hynds on 22 November 2006, Dr Loughran had already calculated her salary at £85,153 per annum and when she argued for £95,000 per annum, he said “lets meet in the middle” and offered £90,000 per annum subject to her previous service as Consultant being verified. She accepted that proposal. She did not realise that she was thereafter not being paid £90,000 until much later when she received her payslip for both November and December 2006. She then queried the salary amount and was told by Dr Loughran that this was an error and would be sorted out. However her salary remained at £85,153 per annum.

Respondent’s evidence.

(17.) Mrs Hynds was at all material times the Medical Staffing Manager for the respondent. Her evidence was that she did not discuss salary with the claimant before the claimant arrived in Newry and that the first discussion of salary took place at the meeting on 22 November 2006 between her, Dr Loughran, and the claimant. She recalled the claimant then discussing a level of salary of around £90,000 or £95,000 per annum. The normal practice for the respondent was to place a new Consultant on the bottom point of the NHS Consultant scale until previous service was verified and the appropriate salary point would thereafter be paid together with any arrears. For some reason, this practice was not followed in the present case and the respondent had accepted for the time being that the claimant had “nine years” service. That, according to Mrs Hynds initial evidence, placed her on the £85,153 point on the scale. That sum was agreed with the claimant subject only to subsequent verification from her previous employers. Pro-formas were sent by Mrs Hynds to those previous employers seeking verification of the service. Mrs Hynds evidence was that no replies had been received to these pro-formas but she hadn’t bothered to “chase them up”.

(18.) Mrs Hynds gave her initial evidence on the second and third day of hearing. On the second day, she referred to the correct salary point as being “point nine” on the scale. On the third day, she stated in cross examination that “it should have been point six rather than at point nine, we gave her too much”. The tribunal directed her to return on the fourth day with a full written calculation and to be prepared to explain, at that stage, exactly how the calculation had been made initially and if her evidence now was that the initial calculation was in error, how it should have been calculated.

(19.) On the fourth day of the hearing, Mrs Hynds evidence was that the claimant had accumulated eight years and four months service as a Consultant by November 2006. The tribunal had previously heard references from Dr Loughran to eight years and two months and to nine years. Mrs Hynds stated that the respondent had “rounded up” the claimant’s service to nine years. The Consultant contract and the relevant NHS Circular, HSS (TC8)9/2006, meant that the claimant should have been paid £79,812 rather than the £85,153 per annum actually paid.

(20.) Dr Loughran stated in evidence that £85,153 per annum was offered and agreed on 22 November 2006 on the basis of eight years and two months service rounded up to nine years. That figure had never been altered in discussion subsequently with the claimant and he had never told the claimant at any stage that the salary paid to her was a mistake or that she should have been paid £90,000 per year.

Decision.

(21.) It is apparent that NHS Consultant contracts are heavily regulated and that Trusts are supposed to pay those Consultants who are direct NHS employees (as opposed to agency employees) only the amount determined in accordance with the contractual scale. Since the claimant was not a direct NHS employee in the period immediately before entering into direct employment with the respondent, (she was an agency employee working in Bromsgrove NHS Trust), there was no question of her transferring from the old form of Consultant contract to the new form of Consultant contract which had first been introduced in April 2004. The correct salary point, according to NHS regulations, appears therefore to have in fact been £79,812 per annum. As far as NHS rules were concerned, the claimant was overpaid rather than underpaid during her period of service with the respondent.

(22.) That is however not a complete answer to the claim in this respect. Even if it might have got the respondent into trouble with its auditors, the Trust could have entered into a contract to pay more than the NHS rules allowed. On their own evidence, this is exactly what they did anyway by paying the claimant a basic salary of £85,153 per annum rather than £79,812 per annum. The issue therefore remains; what agreement was reached between the claimant and the respondent in relation to salary in November 2006 and subsequently?

(23.) The claimant’s version of events and the version put forward by Mrs Hynds and by Dr Loughran differ sharply. There appears to be little room for any misunderstanding in this respect. Either Dr Loughran said “lets meet in the middle” and agreed a basic salary of £90,000 per annum and both his evidence and that of Mrs Hynds is incorrect or the salary was agreed, or at least fixed at £85,153 per annum and the evidence of the claimant is incorrect.

(24.) An email dated 14 September 2006 from Mrs Hynds to “payroll” stated that the salary had been agreed at £85,153 per annum by reference to a salary point on the Consultant contractual scale. A letter from Dr Loughran dated 16 January 2007 responded to the claimant’s query about salary by repeating that position. The claimant continued to verbally query the position but nevertheless continued to work for the respondent and to receive that salary each month.

(25.) As indicated above, the tribunal considers that the respondent was foolish to engage an employee without a written agreement in relation to basic contractual terms such as salary. It was even more foolish to have then wrongly calculated the appropriate salary point and to have overpaid the claimant in terms of NHS rules. The claimant approached this matter in the firm belief that she was owed something extra from the respondent in return for working on a direct contract, and not through an agency, and that she was worth £95,000 per annum. The tribunal has concerns about certain aspects to the claimant’s evidence to which it will return later in this decision and, on the balance of probabilities, prefers the evidence of Mrs. Hynds and Dr Loughran on this point. That evidence is consistent with contemporaneous documentation. The tribunal therefore concludes that the salary agreed between the claimant and the respondent was £85,153 per annum and that there was no breach of contract in this respect.

Travelling Expenses

Claimant’s evidence.

(26.) The claimant’s evidence was that at the meeting on 22 November 2006, between her, Dr Loughran and Mrs Hynds, an agreement was reached that she would be paid £600 per month travelling expenses as a fixed sum without the necessity for receipts. She wanted to travel back to her home in London on three weekends out of four, to fit in with her on-call rota of one weekend in four and stated that the £600 fixed monthly sum had been agreed on that basis. She stated that Dr Loughran had said that instead of submitting individual claims, “lets make an arrangement for a specific sum each month”. She had responded with a figure of £200 a week for three weeks a month. She asserted several times in evidence that this had been agreed with Dr Loughran and that when it was not paid, she later spoke to Dr Loughran who said “that is fine and I will talk to her (Mrs Hynds)”. The fixed sum of £600 per month was never paid and the claimant was required subsequently to submit travel expenses claims with receipts which were paid up to a maximum of £200 per month. She claimed that Dr Loughran “always took the view that this (£600 per month) was payable”.

Respondent’s evidence.

(27.) Dr Loughran and Mrs Hynds both denied that any such arrangement had been made. Medical staffing agencies might have had different arrangements for their employees but the claimant was a direct employee of the respondent on NHS terms and conditions. The respondent had no contractual responsibility for travel between Newry and London. It was not part of her duties. However Dr Loughran and Mrs Hynds had agreed that a maximum of £200 per month should be paid to include non-contractual travel, on production of receipts.

Decision.

(28.) The tribunal notes that, in her claim form, the claimant sought payment of £400 per month, not £600 per month which she now alleges was the sum owed. When the Chairman put this discrepancy to her, the claimant replied that this was the figure that Dr Loughran had later agreed to pay as a compromise. In cross examination, the claimant stated that the £400 per month was “what Dr Loughran had wanted” and she put that lower figure on the claim form because “I couldn’t falsify what Dr Loughran had said” - “because Dr Loughran said £400 in our last meeting” -“Dr Loughran changes a lot of things” - “the last thing he said was £400 was fair. I couldn’t challenge him, he would be my referee.” Nevertheless the claimant insisted in evidence that £600 per month, without the need for any receipts, had been the agreement reached.

(29.) The tribunal fails to understand why a NHS Trust would undertake to pay any money in respect of non-contractual travel even with the production of receipts. If it had felt compelled to make such an arrangement, the tribunal further fails to understand why it was not reduced to writing and signed by the parties at the time. That said, the evidence of the claimant is simply not credible. It is inherently unlikely that any agreement would have been made for a fixed sum of £600 per month without receipts. The claimant had the assistance of a solicitor in completing her claim form and her explanation for putting a figure of £400, rather than £600, per month on the claim form is absurd.

(30.) Mrs Hynds confirmed in an email of 28 November 2007, about a week after the claimant started work, that the Trust would pay a maximum of £200 per month. While the claimant continued to argue about expenses, she stated in an email to Mrs Hynds in January 2007 that she was prepared to accept any level of expenses Dr Loughran was prepared to offer as “he was an extremely fair person”. The grievance letter submitted on 29 June 2007 refers simply to one alleged agreement in relation to travel expenses for £400 per month. No mention was made in that grievance of any agreement for £600 per month which was then reduced to £400 per month. Her explanation that Dr Loughran when he has a problem always says “let’s meet in the middle” does not strike this tribunal as credible.

(31.) The tribunal therefore concludes that the only agreement made in relation to travelling expenses was an agreement that a maximum of £200 per month would be paid to the claimant, to include non-contractual travel, on production of receipts. No breach of contract therefore occurred in this respect.

Notice Pay

(32.) The tribunal notes that Mrs Hynds accepted that, under the standard Consultant contract, the claimant was entitled to three months notice, and that she had not received that notice on full. While no contract was ever signed, it is clear that both parties intended, with the exception of the disputes about pay and travelling expenses, that the standard NHS contractual terms would apply.

(33.) The tribunal notes with some concern that this point in relation to notice was not conceded in the course of the internal grievance procedure. It notes with even more concern that the internal panel which determined that grievance appears to have either been given the impression, or to have convinced itself, that the contract on which the claimant was engaged was for a fixed period and was due to expire in June 2007 in any event. The panel recorded “the Trust contends that Dr Nabili had always understood that her job finished at the end of June and on occasion referred to her contract being from 20 November 2006 to the end of June.”

(34.) Mrs Hynds who had assisted in the preparation of the respondent’s submission to the Grievance Panel, was unable to indicate how this misunderstanding arose. The respondent’s written response to the grievance stated that “you had over and above three months notice of the Trust’s intention not to retain you in view of my uncontended opinion that you were unable to cover acute paediatrics without a competent middle doctor.” No evidence to this effect was presented to the tribunal. The first indication from the respondent to the claimant that her contract was to be terminated was that contained in the two notices of termination which issued on the 25 April 2007. The response to the internal grievance was, to use a neutral term, misleading.

(35.) The issue in relation to notice is, in view of the tribunal, beyond dispute and was readily conceded by Mrs Hynds on the third day of the hearing in response to a question from the chairman. This was after she had completed her evidence in chief without making such a concession. The tribunal fails to understand why the respondent did not honour its contractual obligations in this matter and why it did not recognise that it had failed to do so, at any stage throughout the internal grievance procedure and the lengthy interlocutory proceedings before this tribunal. It’s actions in this respect fell far short of the standard expected of a large employer.

(36.) The tribunal concludes that the claimant received the letters of termination on 1 May 2007 and that she therefore received only two months notice of termination rather than three months.

(37.) Mr O’Reilly submitted that because the claimant had worked as an agency Locum for another NHS Trust throughout July 2007 and, in that month, had earned more than she would have earned had she remained with the respondent, no sum was due in respect of this breach of contract. He argued that she had suffered no loss having mitigated any loss in full.

(38.) Mr O’Reilly did not refer the tribunal to any decided cases in this point but simply argued that the claimant had been under a duty to mitigate her loss and she had fulfilled that duty. No payment was therefore due from the respondent by way of damages. In testing Mr O’Reilly’s argument, the Chairman suggested that it could be argued that the claimant was entitled to her pay in lieu of notice (PILON) whether she worked for another employer in July or not. If the respondent had properly fulfilled its duties under the contract, and paid PILON in respect of the period for which it was not prepared to give notice, then the claimant could have worked for another employer if she wished and could have earned that salary without having to reimburse the PILON to the respondent. Why should the claimant’s position be worse, when the respondent had acted in breach of contract?

(39.) On reflection, the point is not as simple and straightforward as Mr O’Reilly suggested to the tribunal. Both parties clearly intended that they should be bound by the terms of the standard NHS Consultant contract. In relation to termination, the contract refers to Schedule 19 of the standard terms. That schedule provides “where termination of employment is necessary, an employing organisation will give a Consultant three months notice in writing”.

“In cases where employment is terminated, a Consultant may be required to work his or hers notice, or, if the employing authority considers it more appropriate, a Consultant may be paid in lieu of notice, or paid through the notice period but not be required to attend work”.

(40.) The respondent therefore has three choices in circumstances where a Consultant’s contract is terminated. Firstly, it may dismiss the Consultant with the correct period of notice and require that notice to be worked. Secondly, it may dismiss the Consultant and pay PILON. Thirdly, it may dismiss with the correct period of notice and pay the Consultant throughout the period of notice but not require the Consultant to work during that period. There is no fourth option of dismissal without the correct period of notice and without PILON.

(41.) The law in these circumstances was discussed by the Court of Appeal in Cerberus Software Ltd –v- Rowley [2001] EWCA CIV 78 and by the Employment Appeals Tribunal in Abrahams -v- Performing Rights Society Ltd [1995] ICR 1028, neither of which are on all fours with the present case.

The situation is of course different in relation to statutory compensation for unfair

dismissal where insufficient notice of termination is given; see Norton Tool Co Ltd –

v- NJ Tewson [1972] IRLR86 and Stuart Peters Ltd .v. Bell [2009] EWCA CIV 938. However the present case does not raise any issue of statutory compensation for unfair dismissal and, in relation to the claim for notice pay, is either a claim for

wrongful dismissal or a claim for breach of a specific contractual term relating to

notice.

(42.) In Cerberus, the Court of Appeal considered the case of a man who had been summarily dismissed (i.e. dismissed with no notice at all) in circumstances where that dismissal had been unjustified. That case raised the same broad issue as the present case; i.e. if proper notice is not given on termination, is the employee’s claim a claim for damages for wrongful dismissal and therefore subject to the employees duty to mitigate his loss, or is the employee entitled in such circumstances to assert a contractual right to payment in lieu of notice without credit having to be given for earnings in new employment during the notice period?

(43.) In Cerberus, the EAT had held that the employer had been in breach of the employment contract in not paying PILON and that the employer was not entitled to receive the benefit of the employees mitigation of his loss. The employer had promised in the contract to pay PILON and the breach was the non-payment of the sum due. The Court of Appeal, by a majority (Sedley LJ dissenting) held that the employees situation was different from that in Abrahams. The contract said that the employer “may make a payment in lieu of notice to the employee”. In Abrahams the contract stated that “in the event of termination of your employment by the Society, either at the end of a fixed term contract period or at any time during the final two years of such period, you will be entitled, other than in the case of dismissal for gross misconduct to a period of notice of two years or an equivalent payment in lieu.”

(44.) On that basis, the Court of Appeal held that the employer in Cerberus had been given the right to elect whether or not to make a payment in lieu of notice. It was given a choice whether to pay or not to pay. There was no contractual right to PILON. Therefore the claim was for damages for breach of contract i.e. wrongful dismissal and the employer was, in law, entitled to full credit for the claimant’s mitigation of loss.

(45.) In the present case the claimant was not summarily dismissed for alleged misconduct. Whatever concerns the respondent may have had about the claimant’s ability in acute paediatric medicine, the claimant was not subject to any formal disciplinary or capability procedures. Her employment was terminated on notice of two months rather than on notice of three months. In those circumstances the claimant had a contractual right to three months notice. When the correct notice period was not given, either with or without a requirement to work during that notice period, she had a contractual right to PILON. The respondent in the present case was not given a fourth or other option in circumstances where the contract was terminated. It was not given a contractual option to both not give proper notice and not to pay PILON. Once it decided not to give proper notice, it was obliged to pay PILON.

(46.) The tribunal therefore concludes that the claim in this respect is not a claim for damages for wrongful dismissal but a claim for breach of contractual entitlement to PILON. The claimant is therefore entitled to one months pay in respect of July 2007 and her mitigation of loss is not an issue.

(47.) As with much of the documentation produced for the tribunal, the payslips were not properly copied and the figures for net pay are obscured. However on the evidence to hand, the tribunal fixes the net loss to the claimant at £4,850.35.

Annual Leave/Pay for 15 June 2007 to 30 June 2007

(48.) Mr O’Reilly conceded that the claimant was entitled to an additional three days annual leave over and above the amount of leave calculated by the respondent, in respect of the month of July 2007. The tribunal accepts that concession.

(49.) The position in relation to annual leave was, as with other issues in this case, one of complete confusion. The respondent had failed to implement a clear procedure for granting and recording annual leave to minimise the scope for disputes.

(50.) The claimant’s annual leave allowance was 34 days. Annual leave was only credited for complete months worked and not for part months. The period from December 2006 to the end of May 2007 gave the claimant an entitlement to 17 days plus two statutory days giving a total of 19 days leave entitlement.

(51.) The claimant did not attend work for the Trust during the month of June 2007. Her evidence was that she had sufficient annual leave and approved study leave to cover that period and that she was entitled to be paid for the entire month of June as she was working her notice period (of two months). Dr Al Jarad had initialled a leave card, which the claimant had completed, “approving or certifying” annual leave from 11 June 2007 to 27 June 2007 inclusive.

(52.) The respondent’s evidence was that the claimant had told other employees that she was not coming back during June. Concerns had therefore been raised about whether or not the claimant had sufficient leave to cover the entire month. Dr Loughran had calculated the leave taken and the leave owed to the claimant. His evidence was that the claimant was only entitled to 5.5 days of annual leave at the start of June. She had approved study leave for 6-8 June inclusive and the period from 15 June onwards was therefore unpaid absence. Dr Al Jarad accepted that he had initialled the leave chart as her line manager but it was his practice to leave calculation of annual leave allowances to Human Resources and to Dr Loughran’s secretary. Both Dr Loughran and Dr Al Jarad stated that they had not approved any study leave during the month of June other than the study leave approved from 6-8 June.

(53.) The tribunal, on the balance of probabilities, accepts the Trusts calculation of leave entitlement. It was ill-advised of Dr Al Jarad to initial a leave card, indicating that he certified or approved the leave request from the claimant for 11 June 2007 to 27 June 2007, without first being satisfied that the claimant had sufficient annual leave. However the tribunal accepts that he did not turn his mind to whether or not the claimant had sufficient leave remaining to allow for that absence in the second half of the month of June. The tribunal also notes that the claimant was unable to produce any evidence that further study leave had been approved. The applications for study leave produced by the claimant had not been signed or approved by either Dr Loughran or Dr Al Jarad. The tribunal therefore concludes that the claimant was absent without leave during the period from 15 June 2007 to 30 June 2007 when she should have been working the (incorrect) period of two months notice. She is therefore not entitled to pay for that period.

(54.) In the absence of any calculation provided by either party the tribunal fixes the claimant’s loss in respect of the three day’s annual leave at £727.54, on the rough and ready assumption of 20 working days per salary month.

Removal of On-Call Allowances

(55.) The claimant was removed from on-call work in acute paediatric medicine on

20 January 2007.

(56.) The claimant had presented herself to the respondent as a Consultant with sound experience and capable of doing on-call work in acute medicine.

(57.) The claimant stated that the staffing during periods when she was on-call was insufficient. She alleged, for example, that on one occasion, the only doctor available to assist her was an SHO whom she described as “a boy” who was totally inexperienced and that the nursing staff comprised inexperienced nurses who were rotated at random from elsewhere. She stated that it was a Royal College requirement that a Consultant should at all times be assisted by a Registrar, an SHO, and by experienced specialist nurses. She did not produce any documentary or other evidence to substantiate this alleged requirement.

(58.) Dr Al Jarad stated that the job specification including the on-call and staffing arrangements within Daisy Hill Hospital had been submitted to the Royal College and that it was not unknown for a Consultant to be assisted by a single SHO. He stated that this was the practice in other hospitals and gave, as an example, an NHS Trust in Cumbria. He also stated that the nursing staff who were available to assist the claimant during on-call duties within Daisy Hill Hospital were a mixture of experienced nurses and midwives and that they were entirely suitable for on-call paediatric work.

(59.) The tribunal accepts Dr Al Jarad’s evidence in this respect. If the staffing levels were as deficient as alleged by the claimant, it is difficult for the tribunal to understand why the claimant, when the staffing levels and rota arrangements were explained to her in November 2006, agreed to work in Daisy Hill Hospital when, as she indicated, she was earning much more as an agency locum in NHS Trusts in England. Furthermore, it was difficult to see why she did not pursue any complaint in respect of the alleged deficiencies in staffing to the Royal College or elsewhere.

(60.) Dr Al Jarad was approached by an SHO during January 2007. The SHO was distressed about an incident in which she felt she had not received the necessary degree of support from the claimant. Dr Al Jarad examined the relevant medical notes and spoke to the nurses who had been involved in the incident. He was concerned that the claimant should have attended the patient earlier and that the SHO had been left to her own devices. He discussed the incident with the claimant and the claimant and Dr Al Jarad examined the notes together. She then asked for a copy of those notes. Dr Al Jarad was unsure of the procedure in these circumstances and asked Dr Loughran who directed him to make copies available to the claimant. Dr Al Jarad then became aware of other incidents and on

26 January 2007 summarised four particular incidents in a letter to Dr Loughran. That letter was copied by Dr Loughran to the claimant. Copies of the relevant medical notes were retained by Dr Al Jarad for a period of some weeks to enable the claimant to inspect those notes and to comment on them if she wished. The claimant did not avail of this opportunity. Dr Al Jarad discussed the incidents with Dr Hughes and Dr Corkey, the other two Consultant paediatricians employed by the respondent and they reached a collective decision that the claimant should be removed from on-call duties. He communicated that decision to her in a meeting on 20 January 2007 and it was later confirmed in writing by Dr Loughran.

(61.) The claimant’s evidence was markedly different. She denied that her conduct during her on-call duties was worthy of criticism. For example, she referred to one incident in which a very ill child was transferred to the Royal Hospital from Daisy Hill by ambulance and where she was the senior medical professional in the ambulance. An intravenous drip had either not been attached properly or attached at all, to the patient. In evidence to the tribunal she criticised the other doctors in Daisy Hill, criticised the nurse, and was of the view that it was not her fault. Dr Al Jarad indicated in evidence that he was shocked that she had not taken the elementary precaution of checking the condition of the child and the status of the intravenous drip before the journey commenced.

(62.) The claimant alleged that she had sustained an injury to her elbow in re-attaching the drip to the child in the incident described above. She alleged that this resulted in tendonitis and that she was thereafter unable to carry out her on-call duties satisfactorily. She alleged that she was treated in Accident and Emergency and that she had received laser therapy on more than one occasion in Daisy Hill. She produced no documentary or other evidence to support the existence of this injury. The respondent was unable to find any record of any such treatment either in the Accident and Emergency department or in the physiotherapy department. The claimant suggested on the fourth day of the hearing, for the first time, that she had asked Dr Loughran to be relieved of her on-call duties as a result of her tendonitis, and for no other reason. It was pointed out to her that this was the first time she had mentioned such a meeting and her evidence changed to an assertion that she had gone to see Dr Loughran but his secretary had explained that he was not there.

(63.) The tribunal concludes that the alleged meeting did not take place and that the claimant’s participation in the on-call rota for acute paediatric medicine ceased solely because of the Trust’s concerns about her ability to cope with the demands of such work. The tribunal is not in a position to determine whether those concerns were well grounded. However the claimant failed to take up the opportunity to inspect the relevant medical notes and she appears to have accepted the decision of the Trust to remove her from the rota. She did not approach either Dr Loughran or Dr Al Jarad thereafter to request a return to such duties. In particular, she at no stage, produced medical evidence to the respondent indicating that she was either unable to perform such duties because of tendonitis or that her tendonitis had subsided sufficiently for her to resume such duties. The tribunal does not accept the claimant’s allegation that she was on “sick leave” at any stage in respect of her on-call duties.

(64.) The jurisdiction of this tribunal in relation to breach of contract is limited to matters which either “arise out of” or are “outstanding” on the termination of employment. It is clear that this aspect of the claim did not “arise out of” termination. For the tribunal to have jurisdiction it must therefore have been “outstanding” on the date of termination. The claimant had not participated in the on-call rota for five months prior to the termination of her employment on 30 June 2007. She had not raised a formal complaint or requested a resumption of her on-call duties until the grievance letter lodged on 29 June 2007. She had not raised an unauthorised deduction from wages claim or furnished medical evidence to support her claim for sick leave during that period. The EAT in Hendricks v Lewden Metal Products Ltd [1996] UK EAT 1181/95, considered a claim which related to a matter which arose some three to four years before the termination of employment and held that such a claim could not be regarded as “outstanding” on the date of termination for the purposes of a breach of contract claim. In the present case, the period is considerably shorter i.e. some five months. However when the EAT said in Hendricks that “You cannot claim something is outstanding if you have not raised it”, that principle applies equally to the present case.

(65.) However, the tribunal does not need to determine whether or not the claim in respect of the cessation of on-call duties and non-payment of the relevant allowances was outstanding on the date of termination because the tribunal is satisfied that the decision to remove the claimant from the on-call rota was a decision which the claimant at the time accepted. Having observed the claimant give evidence and in particular having observed her describing the difficulties which she states she experienced with the on-call rota, the tribunal is satisfied that the claimant simply did not want to perform those duties. The original terms of the agreement provided for 12 sessions i.e. 10 sessions of community paediatric work and 2 sessions on the on-call rota. The basic Consultant salary is based on a working week comprising 10 sessions and the additional 2 sessions involved extra payment. On the cessation of her participation in the on-call rota, the working arrangements were further revised to allow for 11 sessions of community paediatric work and the claimant, on her own evidence, accepted that alteration and participated in the new arrangements for a period of five months. The tribunal is therefore satisfied that the claimant accepted her removal from the on-call rota and the subsequent variation in the number of sessions she worked in community paediatric medicine. There is therefore no breach of contract in this respect.

(66.) This is a relevant decision for the purposes of the Industrial Tribunals (Interest)

Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 24 August - 27August 2009, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Nabili v Southern Health & Social Care ... [2009] NIIT 1613_07IT (23 September 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1613_07IT.html

Industrial Tribunals Northern Ireland Decisions