Mr H Wilkins v Royal Devon and Exeter NHS Foundation Trust: 1400169/2016
EMPLOYMENT TRIBUNALS
Case No 1400169/2016
Between
Mr H WilkinsClaimantRoyal Devon and Exeter NHS Foundation TrustRespondent
Before
Employment Judge A GorajDate 17 November 2017
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The Judgment of the tribunal is that the claimant’s application for reconsideration is refused because there is no reasonable prospect of the decisions contained in the Judgment dated 27 September 2017 being varied or revoked.
REASONS
[1]The claimant has applied for a reconsideration of the reserved judgment dated 27 September 2017 which was sent to the parties on 2 October 2017 (“the Judgment”). The grounds for the claimant’s application are set out in a document dated 15 October 2017 which was received at the tribunal that day (“the application”).[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit and the application has accordingly been determined on its merits in accordance with Rules 70 and 72 of the Rules.[3]The tribunal has addressed the matters raised in the order raised in the application unless otherwise indicated below. THE LAW AND THE CONCLUSIONS OF THE TRIBUNAL
THE LAW
[4]The tribunal has had regard in particular to:-(a) Rules 70 -72 of the Rules referred to above including, that the grounds for reconsideration are limited to those set out in Rule 70, namely that it is necessary in the interests of justice to do so. The interests of justice (including the right to finality in litigation) apply to both parties.(b) The Employment Judge is (a) required to consider as a preliminary matter pursuant to Rule 72 (1) of the Rules whether there is any reasonable prospect of the relevant decisions being varied or revoked and (b) if not so satisfied to dismiss the application at that stage.(c) The guidance contained in Trimble v Supertravel Ltd [1982] ICR 440 EAT, including that if a matter has been ventilated and argued at a tribunal hearing any error of law falls to be corrected on appeal and not by review. THE CONCLUSIONS OF THE TRIBUNAL (1) Paragraph 1- of the application – (the Judgment – paragraph 1 of the Declaration and paragraph 5 of the Reasons)[5]The tribunal understands paragraph 1 of the application to be an application by the claimant to overturn the decision of the tribunal to refuse his application for reinstatement/ re- engagement on the grounds that any decision regarding such matter should be deferred as new evidence may come to light from a “National Guardian Office case review” which may have some bearing on such issue.[6]The application in respect of the above is refused as the Employment decision contained in the Judgment relating to the claimant’s application for reinstatement/ re-engagement being varied or revoked.[7]When reaching the above conclusion the Employment Judge has had regard, in particular to the following:-(1) The tribunal gave careful consideration to the claimant’s application for reinstatement and re-engagement at the Hearing on 3 and 4 July 2017 including (a) the oral and written evidence of the claimant and his witnesses and of the respondent and (b) the findings of the judgment which was sent to the parties on 9 February 2017 (“the liability judgment”) (including regarding the state of the relationship between the parties and that the claimant’s had contributed significantly to his dismissal by reason of his conduct) and (c) the claimant’s ongoing failure to recognise such matters.(2) Having given careful consideration to all of the above the tribunal concluded that it was not reasonably practicable for the claimant to be reinstated and/or reengaged by the respondent and dismissed the application. The tribunal delivered an oral judgment on 4 July 2017 explaining the reasons for its decision. The parties confirmed at the hearing on 4 July 2017 that they did not require the tribunal to provide written reasons for such decision.(3) The tribunal is satisfied that (a) the claimant was afforded a proper opportunity to present his case (evidence and submissions) at the hearing regarding such matter and (b) the claimant is seeking to ventilate again matters which have already been considered/ could have been considered (where relevant to the matters in issue) and determined by the tribunal. Accordingly, the Employment Judge is satisfied that it is not in the interests of justice to allow the claimant to ventilate such matters again by way of the process of reconsideration.[8]This aspect of the application is therefore dismissed. (2) Paragraph 2 of the application – Calculation of the Monetary award Paragraph 2(a) – Grading of my post (Reasons- paragraph 6 of the Judgment.[9]The claimant appears to contend, notwithstanding that he accepts and acknowledges that any dispute relating to the grading of his post was not an issue which the tribunal was required to determine for the purposes of liability, that it should be taken into account for the purposes of remedy as(a) the grading of his post effected his pension and(b) the claimant’s unfair dismissal and subsequently the tribunal’s subsequent refusal to reinstate/ re- engage him made it more difficult for him to address the issue.[10]The application in respect of the above is refused as the Employment decisions contained in the Judgment relating to this matter being varied or revoked.[11]When reaching the above conclusion the tribunal has had regard in particular to the tribunal’s explanation of the position at paragraph 6 of the Judgment including in particular that there was no extant issue before the tribunal relating to the claimant’s grading.[12]In all the circumstances, this aspect of the application is dismissed. Paragraph 2 (b) of the application – unclaimed expenses (Reasons Paragraph 9(6) of the Judgment)[13]The application in respect of the above is refused as the Employment decisions contained in the Judgment being varied or revoked.[14]When reaching this conclusion the tribunal has had regard to paragraph 9 (6) of the Judgment and in particular that although the relevant expenses were allegedly outstanding on the termination of his employment the clamant did not pursue a claim for such monies.[15]This aspect of the application is therefore dismissed. Paragraph 2 (c) of the application – net monthly pay (Reasons paragraph 9(1) and paragraphs 28-29 of the Judgment).[16]The application in respect of the above is refused as the Employment decisions contained in the Judgment being varied or revoked.[17]When reaching this conclusion the tribunal has had regard in particular to paragraphs 28 and 29 of the Judgment. Paragraph 2(d) of the application- (Reasons at paragraph 9(2) and Paragraph 32 of the Judgment).[18]The application in respect of the above is refused as the Employment decisions contained in the Judgment relating to this matter being varied or revoked.[19]When reaching this conclusion the tribunal has taken into account in particular :-(a) The findings at paragraphs 32 of the Judgment including the relevant conclusions in the liability judgment (a) in respect of the state of the relationship between the parties at the time of the termination of the claimant’s employment(b) the reasons why the tribunal considered the matter to be distinguishable from the position in the Wardle case and(c) that the claimant acknowledges at paragraph 2(d) of the application that there was “plenty of evidence that the situation I was placed in was unsustainable and the situation was coming to a head one way or another”. (b) The claimant was afforded a proper opportunity to make his submissions on this issue and it is not therefore appropriate to allow the claimant to seek to ventilate the matter further by way of reconsideration.[20]This aspect of the application is therefore also dismissed. Paragraph 2 (e) of the application – (Reasons at paragraph 9(4) and Paragraphs 42-43 of the Judgment).[21]The application in respect of the above is refused as the Employment decision contained in the Judgment being varied or revoked.[22]When reaching this conclusion the tribunal has had regard in particular to the following :-(1) Paragraphs 42 – 43 of the Judgment including that having regard to the matters referred to at paragraph 43 of the Judgment the tribunal rejected the respondent’s contention that the claimant’s life expectancy for pension purposes should be limited to 80 and substituted an age of 85.(2) Notwithstanding that the claimant had a full opportunity to present his case regarding this issue he did not adduce any evidence to the tribunal (including regarding his lifestyle or any medical or other expert evidence) relating to his life expectancy in support of his contention that his life expectancy should be assessed at 90.
Conclusion
[23]Accordingly the tribunal refuses all aspects of the application pursuant to Rule 72(1) because there is no reasonable prospect of the decisions contained in the Judgment being varied or revoked on reconsideration.[24]Finally the tribunal accepts, as noted by the claimant, that there is typographical error in the Judgment as the claimant’s employment with the respondent commenced on 14 June 2004 rather than on 14 June 2014 as stated at paragraph 15 of the Judgment. The tribunal is satisfied however that no further amendments are required in relation to such error.
Conclusion
[1]This Judgment is issued further to the Judgment dated 27 September 2017 relating to remedy which was sent to the parties on 2 October 2017 (“the remedy Judgment”). The tribunal raised at paragraphs 46 -47 of the remedy Judgment the question of whether the claimant was entitled to receive any compensation pursuant to section 38 of the Employment Act 2002 as it was unclear whether the respondent had, at the relevant time, complied with the terms of section 1 of the Employment Rights Act 1996 (“the Act”). The parties were therefore invited to make written representations limited to this issue which is the only outstanding matter in these proceedings.[2]The tribunal has regard to the following written representations which were received from the parties:-(1) The email dated 13 October 2017 and accompanying documents from the respondent’s representatives.(2) The emails dated 20 October 2017 and accompanying documents from the claimant.(3) The email from the claimant dated 22 October 2017 and accompanying documents.
THE FACTS
[3]The tribunal is satisfied in the light of the documentation and the representations with which it has been provided that :-(1) The claimant was issued with a statement of terms and conditions of employment by the respondent (then known as the Royal Devon & Exeter Healthcare NHS Trust) on 4 February 2004 (“the Particulars”) which were accepted by him on 11 February 2004 (prior to the commencement of his employment with the respondent on 14 June 2004). The claimant’s date of appointment was originally stated in the Particulars as 24 May 2004 but was subsequently amended in manuscript to 14 June 2004 (the correct start date). The date of the claimant’s continuous employment for the purposes of his entitlement to statutory employment rights was also stated in the Particulars as 24 May 2004 but was not subsequently amended in manuscript.(2) The respondent wrote to the claimant in October 2004 regarding the proposed implementation of the Agenda for Change programme and associated arrangements.(3) The claimant was subsequently provided with a detailed Job description in respect of his job title of Medical Physics / Radiation Protection Adviser (which was accepted by the claimant on 30 November 2004).(4) The claimant was issued on 12 December 2004 with a letter advising him that his pay and terms and conditions would in the future be determined under the new NHS Agenda for Change pay system and associated provisions including that he could access a copy of the Agenda for Change Agreement on the respondent’s intranet site or by contacting his manager. The claimant was further advised that (a) the letter represented a variation to his existing contract of employment and (b) the new arrangements did not affect his accrued statutory or NHS entitlements or any trust agreed terms and conditions not described in the Agenda for Change Handbook.(5) The employer was identified in the documents referred to at paragraphs (2) - (4) above as the respondent Foundation Trust. The representations of the parties[4]In summary, the respondent contended in its email dated 13 October 2017 that the respondent had complied with its obligations pursuant to section 1 of the Act and further that any changes to the Agenda for Change Handbook were notified to employees on an ongoing basis by pay and conditions circulars and notices in the NHS Workforce Bulletin.[5]In summary, the claimant contended in his email dated 20 October 2017 that the respondent had breached section 1/ 4 of the Act including in particular as(a) the respondent had failed to provide a copy of the Particulars to the tribunal previously in the proceedings(b) the alleged failure by the respondent to discuss with the claimant/ amend his job description to amend changes to his role between 2004 and 2015 and(c) that the respondent had failed to provide the claimant with further written particulars where there had been changes to the Particulars (unspecified save in respect of the reference to his job description/ grading). The main focus of the claimant’s e mail dated 20 October 2017 (and his subsequent email dated 22 October 2017) related however to the alleged failure of the respondent to understand the nature and importance of his role and to adhere to the provisions of the Agenda for Change Handbook including with regard to the evaluation of his post.[6]The claimant acknowledged in his email dated 20 October 2017 that(a) he had received the Particulars(b) that he was familiar with the Agenda for Change Handbook and(c) that information regarding changes to the Agenda for Change Handbook were readily available.
THE LAW
[7]The tribunal has had regard to the following statutory provisions namely, sections 1- 4 of the Employment Rights Act 1996 (“the Act”) and section 38 of the Employment Act 2002 (“the 2002 Act”) and Schedule 5 thereto.[8]The tribunal has also had regard to the Judgment in Birmingham City Council v Wetherill and others 2007 IRLR 781 CA (relating to the manner of the notification of changes in terms and conditions).[9]The tribunal has reminded itself in particular as follows:-(1) Section 38 of the 2002 Act requires, save in the circumstances referred to at(2) below, a tribunal to award compensation to an employee where, upon a successful complaint being made in respect of any relevant jurisdiction (which includes unfair dismissal) it becomes evident that the employer was in breach of its duty to provide full and accurate particulars pursuant to section 1 of the Act. The tribunal is required in such circumstances to increase the relevant award of compensation by the minimum amount (two weeks’ pay ) and may, it considers it just and equitable, increase such monies by the higher amount (four weeks’ pay). (2) The tribunal is not however required to make such an award if there are exceptional circumstances which would make such an award or increase unjust or equitable.(3) The relevant date for determining whether an employer was in breach of the requirements for the purposes of section 1 / 4 of the Act is the date on which the main proceedings were begun by the employee. In this case the claimant presented his claim form to the tribunals on 2 February 2016.(4) Section 38 of the 2002 Act does not give employees a free standing right to claim compensation for any failure to provide written particulars. Further section 38 of the 2002 Act does not give employees the right to pursue any claim in respect of the application/ failure to apply or the interpretation of such particulars. THE CONCLUSIONS OF THE TRIBUNAL[10]Having given careful consideration to all of the matters referred to above the tribunal is satisfied that :-(1) The claimant was provided with the Particulars referred to paragraph 3 (1) above prior to the commencement of his employment with the respondent. The claimant has not identified any failure by the respondent to comply with sections 1-3 of the Act in respect thereof. Further the claimant did not contend that the employment policies of the respondent and/or the other agreements referred to paragraph 1 of the terms and conditions of employment contained in the Particulars were not reasonably accessible to him.(2) It is however apparent from the face of the Particulars that the date of the claimant’s continuous employment for the purposes of his entitlement to statutory rights was incorrectly stated as 24 May 2004 (which was not amended when the date of appointment was amended in manuscript to 14 June 2004).(3) The Particulars state the claimant’s job title and the claimant was subsequently issued with, and accepted, a comprehensive job description in November 2004 which incorporated his principal duties as the Director of Medical Physics/ Radiation Protection Adviser.(4) The claimant was subsequently advised of relevant changes to his terms and conditions in accordance with the Agenda for Change programme/ Handbook including of the process and associated changes to his terms and conditions ( paragraphs 3 (2) (4) and 6 above).(5) That any information relating to any subsequent changes to the Agenda for Change Handbook was readily available (paragraph 6 above).(6) The additional matters to which the claimant had refers in his written representations including with regard to the evaluation of his post, the detailed examination of his job description and his doctorate are not relevant to the matters which the tribunal is required to determine for the purposes of section 38 of the Act.[11]In all the circumstances, the tribunal is not satisfied, on the basis of the evidence, that the respondent was at the date of the commencement of the proceedings in breach of its duty pursuant to sections 1 or 4 of the Act for the purposes of section 38 of the 2002 Act save in respect of its failure correctly to state in the Particulars the date of the commencement of the claimant’s continuous employment with the respondent.[12]The tribunal is however satisfied that the provisions of section 38 (5) of the 2002 Act apply in this case including that there are exceptional circumstances which would render it unjust and inequitable to make an award in respect to the failure referred to at paragraph 11 above.[13]When reaching the above conclusion the tribunal has taken into account in particular that(a) the date of the claimant’s appointment with the respondent was amended in manuscript to insert the correct date and the failure to amend the date of continuous employment in line with such date of appointment is clearly an oversight(b) there has been no material dispute between the parties regarding the date of the commencement of the employment of the claimant (including of the commencement of his continuous employment).[14]In all the circumstances the claimant is not awarded any compensation pursuant to section 38 of the 2002 Act.