Mrs A Oakey v West Midlands Ambulance Service University NHS Foundation Trust and DHU Healthcare CIC: 1305361/2023
EMPLOYMENT TRIBUNALS
Case No 1305361/2023Venue BirminghamHearing 19 August 2024
Between
Mrs A OakeyClaimantWest Midlands Ambulance Service University NHS Foundation Trust and DHU Healthcare CICRespondent
Before
Employment Judge GaskellIn person for claimantDate 19 August 2024
JUDGMENT
(Issued to the parties on 19 August 2024. Set out below for ease of reference.) The Judgment of the tribunal is that: - Pursuant to Rule 37 of the Employment Tribunals Rules of Procedure 2023, the entirety of the claimant’s claims against each of the respondents are struck-out as having no reasonable prospect of success.
REASONS
[1]The claimant in this case is Mrs Anna Oakey who was employed by the first respondent, West Midlands Ambulance Service University NHS Foundation Trust, as a Clinical Adviser, from 28 October 2013 until 28 February 2023 when her employment transferred by operation of the Transfer of Undertakings Protection of Employment Regulations 2006 (TUPE) to the second respondent, DHU Healthcare CIC. The claimant remains employed by the second respondent.[2]Whilst employed by the first respondent the claimant brought Employment Tribunal proceedings (Case Number 1302786/2022) which were settled under a COT 3 form on 4 July 2022. On 11 July 2022, she was reemployed by the first respondent in a different role and on new terms with her continuous service backdated to 26 January 2022 (the day following her dismissal – such that she had continuous service from 28 October 2013).[3]On 1 March 2023 the claimant’s employment was transferred to the second respondent. The parties agree that TUPE applied to the transfer. The claimant’s employment continues now, but a dispute has arisen resulting in the complaints.[4]The current claim form was presented on 3 August 2023. As originally presented the claim was brought against the first respondent only and there were claims for disability discrimination, holiday pay and victimisation. On early scrutiny of the claim form, an Employment Judge raised the question as to whether or not, as the claimant’s employment transferred under TUPE, the second respondent should be joined in the claim. Rather than make an application to join the second respondent, the claimant then presented a second claim form naming only the second respondent (Claim Number 1307754/2023).[5]At a preliminary hearing conducted by Employment Judge Battisby on 6 March 2024, all parties were agreed that the best way forward was for the second respondent to be added as a respondent to this claim (which was done by consent) whereupon the claimant withdrew the separate claim against the second respondent (Case Number 1307754/2023) which was accordingly dismissed. 6 in discussion with the claimant, Judge Battersby identified 5 potential claims which she wished to pursue against the respondents these are set out in detail in judge Battersby’s order but I can summarise them as follows:[7]The First Claim(a) The claimant was dismissed by the first respondent on capability grounds on 26 January 2022. Following her dismissal, the claimant became entitled to her NHS Pension on the grounds that she was unable to work. Until her dismissal, she had been working as a frontline Paramedic for 22 hours per week. Following her tribunal claim (Claim Number is 1302786/2022) it was agreed that she would be re-employed as a Clinical Advisor working for 15 hours per week. This new employment actually commenced on 11 July 2022, but the settlement agreement also provided that her new employment would be backdated to 26 January 2022 so that she had unbroken service. This was done (and the claimant was paid arrears of salary to reflect the period from 26 January 2022 – 11 July 2022), but the upshot is that because the claimant is still employed with no break in service she is no longer entitled to the NHS pension and indeed the NHS Pension Authority is seeking repayment from her of the sums paid while she was unemployed - said to total £19,000.(b) It is the claimant’s claim that it was the clear intention of the parties that the settlement would allow for her to accept new employment backdated to 26 January 2022 but that her pension would be unaffected.[8]The Second Claim(a) This concerned the provision of a special chair and raised desk for the claimant by the first respondent. The issues surrounding them ceased in December 2022 when she started to work from home.(b) By the time of the hearing before Judge Battisby, the claimant had decided not to pursue this complaint which, on the face of it, was out of time.[9]The Third Claim(a) This relates to an alleged failure of the first respondent to consult properly with the claimant prior to the transfer of her employment to the second respondent. Her main argument is that Lucy Mackcracken (head of HR), who was dealing with the matter on behalf of the first respondent, failed to inform the claimant that there were job opportunities involving working from home within the first respondent, for which she could have applied. In particular, there were clinician jobs which she was qualified to perform. Had she been aware, she would have been very interested in remaining in the employment of the first respondent and this would also have made it easier for her to resolve the pension issue.(b) In addition to the complaint of failure to consult under regulation 13 of the TUPE Regulations, the claimant alleges victimisation under section 27 of the Equality Act 2010. The ‘protected act’ was the bringing of the Employment Tribunal proceedings alleging disability discrimination. The victimisation alleged was the failure to consult and the failure to make the claimant aware of job opportunities which would have avoided the need to transfer her employment. The claimant believes the victimisation was as a consequence of having brought the previous Employment Tribunal proceedings.[10]The Fourth Claim(a) The fourth complaint concerns a claim by the first respondent against the claimant for a refund of £302 95, this sum having been overpaid under its global rostering system. Judge Battisby explained to the claimant that she does not appear to have any complaint here. No repayment has been enforced – it would be different if the sum claimed had, at some stage been deducted from the claimant’s salary.(b) Whilst the claimant objects to and denies the claim, she agreed that the forum to determine this would be to defend any proceedings which may be taken by the first respondent for repayment.(c) The Claimant agreed before Judge Battisby there is no complaint to be made here under the Tribunal’s jurisdiction and there was no valid claim to be withdrawn.[11]The Fifth Claim(a) The claimant’s employment transferred to the second respondent effective from 1 March 2023. She transferred on the same terms and conditions as she had enjoyed whilst employed by the first respondent.(b) On 31 March 2023, the government agreed to pay a bonus of 2% to NHS employees. By that date the claimant was not an NHS employee. She claims that, pursuant to TUPE, she and others who transferred at the same time are entitled to the bonus. She claims this not least because of her belief that the bonus was attributed as a reward to NHS staff for work done during the COVID Pandemic.[12]Judge Battisby having set out the claims as above invited the claimant to write to the tribunal within 14 days if she felt that this summary was incorrect. By an email dated 24 March 2024 the claimant confirmed that the summary was correct and provided further information in support of the claims as articulated.[13]Judge Battisby directed that there should be a public preliminary hearing to determine the following:(a) Whether the first respondent should be discharged from the proceedings by virtue of the TUPE Regulations.(b) Whether any of the complaints made by the claimant as set out in the case summary below should be struck out under Rule 37 of the Employment Tribunals Rules of Procedure 2013 as having no reasonable prospect of success.(c) Whether any of the complaints or any part of them have little reasonable prospect of success? If so, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it under Rule 39?(d) Whether any of the claims have been brought out of time and, if so, whether the time limit should be extended under Section 123 of the Equality Act 2010 or Section 111 of the Employment Rights Act 1996.(e) Did the claimant have a disability as defined in the Equality Act 2010 when between January 2022 and May 2023?[14]By the time of today’s hearing the question of disability had largely fallen away upon concession by the respondents.[15]I first considered the viability of the claims against either respondent (issues 13(b) and 13(c) above). The Law Breach of Contract Claims in the Employment Tribunal
The Law
[16]Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“Order”) provides that an Employment Tribunal has jurisdiction to consider an employee’s claim for breach of contract only in circumstances where the claim arises or is outstanding on the termination of the employee's employment.[17]A breach of contract claim cannot be brought in the Employment Tribunal before the effective date of termination of the contract under which the claim is made: Capek v Lincolnshire County Council [2000] IRLR 590 (CA).[18]The claimant cited the Capek case as authority for the proposition that a claim for breach of contract could be brought during the currency of the employment. On enquiry, became clear that the claimant was relying on the decision of the Employment Appeal Tribunal on this point which was in fact reversed by the Court of Appeal.[19]Even if the EAT decision had stood it would not have assisted the claimant in this case. What the EAT determined what is that the tribunal had jurisdiction to consider the claim in that case which was presented to the tribunal during a period of notice but before termination - but where the contractual claim remained outstanding on termination. That is not this case. But in any event the Court of Appeal were clear that jurisdiction does not arise until the termination of the employment. Striking Out[20]When determining whether a claim has no reasonable prospects of success the issue is whether there is a realistic, as opposed to a merely fanciful, prospect of success: Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 (CA).
Discussion
[21]The claimant having confirmed to Judge Battisby that she was not pursuing Claim 2 and that there was in fact no Claim 4, I now consider the viability and prospects of success in Claims 1, 3 and 5. Claim 1[22]Paragraph 3 of the COT3 Agreement clearly provides for the claimant’s reemployment effective from 26 January 2022 so as to provide for no break in service. There is no provision for a break of up to 8 days which the claimant now contends would have been necessary to preserve her pension entitlement.[23]Paragraph 5 of the COT3 Agreement provides: “Nothing in this Agreement shall compromise the claimant’s right in respect of accrued pension rights, personal injury claims of which she is not currently aware or could reasonably be aware as at the date of this Agreement or her ability to enforce the terms of this Agreement.” The claimant’s case is that the effect of this Paragraph is that she would continue to be entitled to receive the pension which was already by then in payment from the NHS Pension Authority. Clearly the Paragraph does not expressly say that. It is therefore a question of proper interpretation of the clause. Arguably, what was intended was that the claimant should be put back into the position that she would have been in had she never been dismissed. Her pension would have continued to accrue, but would not have crystallised into actual receipt.[24]This claim falls within one of 3 legal categories:(a) It could be a claim for breach of the COT3 Agreement. Such a claim is not within the jurisdiction of the Employment Tribunal - not least because the claimant’s employment has not terminated. Her employment is continuing.(b) It could be a claim for rectification of the COT3 Agreement if it is the claimant’s case that the agreement does not properly give effect to the intentions of the parties. But this too would be a claim outside the jurisdiction of the Employment Tribunal. It would be necessary for the claimant to bring such a claim in the civil courts.(c) The 3rd option is that the first respondent’s conduct around this Agreement was somehow deliberate and malicious in which case it could potentially amount to a claim of discrimination or victimisation. I have considered this possibly: (i) In argument today, the claimant herself accepted that there is no evidence of malicious conduct. (ii) For there to have been a contrived outcome would have involved a conspiracy between the first respondent and the NHS Pensions Authority the prospect of this being established is vanishingly small. (iii) Alternatively the claimant may argue that the first respondent new that this would be the outcome but enticed into the COT3 Agreement knowing it would fail. Again on the claimant’s account the prospects of such an elaborate plan being established of vanishingly small. (iv) In any event the documentation suggests that the first respondent has tried to manipulate the position such that the claimant’s pension is preserved. The first respondent was willing to depart from the COT3 Agreement and provide for the claimant’s re-employment to be backdated to a date providing for a break in continuity. This required the claimant’s consent which was not forthcoming. The claimant explained that this was because of ill health.(d) The upshot is that in my judgement there is no reasonable prospect of the claimant establishing that this outcome was deliberate or malicious or that it was an act of discrimination or victimisation.[25]Accordingly I conclude that the first claim has no reasonable prospect of success. Claim 3[26]The fatal flaw in the third claim is that the obligation under TUPE to consult is an obligation to consult with “appropriate representatives of any affected employees”. In the case of the first respondent, there were a number of recognised trade unions and indeed the claimant was a member of one such union. There is no suggestion that there was a failure to consult with the trade unions and accordingly the respondents have complied with their duty. The claimant has provided no information as to why, if she was reluctant to transfer, she did not make this clear to her trade union representative who might then have made enquiries as to the availability of other roles with the first respondent. Alternatively, the claimant does not deny that she was aware of all available roles but did not apply for them.[27]The claimant’s alternative suggestion is that the first respondent’s failure to advise her of alternative roles within their organisation which may be suitable and prevent her needing to transfer was an act of victimisation. However, she does not suggest that such information was routinely provided to other employees who had not previously brought Employment Tribunal proceedings. There is no case to suggest that this failure was a detriment. As observed above, the claimant accepts that she was aware of all available roles but made no applications or enquiries with regard to them.[28]My conclusion is that Claim 3 has no reasonable prospect of success. Claim 5[29]Under TUPE, a transferring employee is entitled to transfer the same terms and conditions as were applicable before the transfer. It is uncontroversial that the claimant did indeed transfer on the same conditions. However, after the transfer, employees who did not transfer received additional benefit. There is no entitlement under TUPE for a post transfer employee to benefit from any subsequent improvement in terms and conditions by the transferor.[30]In this case, the claimant’s cases that the transfer having taken place effective from 1 March 2023 that she retained eligibility for a bonus which was not given until after that date.[31]My judgement is that this claim has no reasonable prospect of success.
Conclusion
[32]For the reasons given above, I have concluded that the claimant has no reasonable prospect of success in any of her claims against either respondent. Accordingly, pursuant to the provisions of Rule 37 of the Employment Tribunals Rules of Procedure 2013, all claims are struck out.[33]In these circumstances, it is unnecessary for me to consider time issues or detail of the claimant’s disability status.