Dr G M McLure v Central and North West London NHS Trust: 2200730/2017
EMPLOYMENT TRIBUNALS
Case No 2200730/2017
Between
Dr G M McLureClaimantCentral and North West London NHS TrustRespondent
Before
Employment Judge GoodmanIn person for claimantMr S. Brittendon (instructed by counsel) for respondentDate 14 September 2017
JUDGMENT
[1]The Tribunal does not have jurisdiction to hear the claim because it was presented out of time.[2]The claim is dismissed because it has no reasonable prospect of success.[3]Decision on the respondent’s application for costs reserved. COSTS JUDGMENT The claimant is ordered to pay the respondent’s costs in the sum of £7,920.
REASONS
[1]At the conclusion of the preliminary hearing at which it was decided to dismiss the claim on two grounds, first, that it was out of time, second, that it had no reasonable prospect of success, the respondent applied under rule 76 for costs.[2]The rule was explained to the claimant, and the tribunal then heard representations from both parties, and was shown two costs warning letters that had been sent to claimant. As there was no further time, due to a prearranged telephone hearing, the decision was reserved.[3]Rule 76 of the Employment Tribunals Rules of Procedure 2013 provides: “A tribunal may make a costs order… and shall consider whether to do so, where it considers that (a)a party… has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way proceedings (or part) have been conducted; or (b) any claim… had no reasonable prospect of success”.[4]This is a two-stage test. The tribunal must decide whether policy has acted vexatiously and so on, and then it must exercise discretion to decide whether to order costs (“may make”).[5]Rule 84 provides that in deciding whether to make a costs order, and if so, in what amount, the tribunal may have regard to the paying party”s ability to pay.[6]The tribunal rules differ from the position in the courts, where the norm is that the losing party pays both sides costs. In most tribunal cases, each side bears its own costs. Only if grounds are under rule 76 can the tribunal consider making an order for costs: Yerrakalva v Barnsley Metropolitan Borough Council 2012 ICR 420. Factors affecting the discretion to make an order if grounds are shown can include both the claimant, especially an unrepresented claimant, was given a warning about the risk as a costs order might be made if the outcome went a particular way, and orders can be made even if warnings have not been given – Vaughan v London Borough of Lewisham 2013 IRLR 713. Consideration should be given to the fact that the party is not represented, and so may not appreciate the legal issues, and the extent to which that party had access to specialist help and advice can be relevant, should be made for inexperience and lack of objectivity, but that does not mean that costs orders cannot be made against unrepresented parties – AQ Ltd v Holden 2012 IRLR 648.[7]The respondent argues that the claimant was unreasonable in bringing the claim, and the reasonable prospect of success, and the reasons given in the judgement dismissing the claim, it was and should have been clear to him the basis on which the respondent made a decision not to provide pay protection when he lost his national award, and that this could not have been to do with his whistleblowing activity; further, it was all should have been clear to him that the decision that resulted in reduction in pay from loss of the award without replacement by a local award at the same level, was made in November 2015, and not in November 2016, so he should also have known that it was out of time.[8]The Respondent relies on two letters sent to him marked as without prejudice save as to costs. A letter dated 27 July 2017 urges him to take legal advice if he is not already doing so if in any doubt about the content of the letter, which goes on to explain the respondent believed that the claimant will fail to explain that he suffered any detriment in November 2016, or that there was this was a new decision, or that this was reneging on an assurance given in November 2015, pointing out that he had not taken any steps to show Ms Murdoch that the T that rust was acting inconsistently with national guidance. Secondly the letter asserted that he would fail to establish any causal connection between the email of November 2016 and his whistleblowing disclosures. He was warned that given the respondent’s duty to minimise costs to the public purse, they will seek an order for costs and invited him to withdraw. The second letter is dated 18 August 2017 and repeats that he should seek legal advice if he does not understand the content, refers to the respondent’s amended response making it clear that he had not been able to substantiate his claims and in particular that the email of 30 November 2016 was not a detriment. With respect to the claimant having asserted that the respondent had failed to enter into arbitration, it was pointed out that this was only a reference to the ACAS early conciliation process, which closed in April 2017 when respondent had refused to make a payment. Again the claimant was urged to withdraw his claim before costs were incurred in preparing for the hearing on 14 September, saying that counsel’s costs will be £2500 plus VAT as well as the solicitors’ preparation cost.[9]The claimant replied that he had acted in good faith, not scandalously or vexatiously, and that the prospects of success depended on a “fine interpretation of documents”; no document explicitly said that a national award would revert to 0 if it was not awarded on the 2015 round. The Trust had no explicit policy on this. The NAMPS email of 2015 suggested that some Trusts were making arrangements for transitional provisions, and the Public Health England document of 2017 was one example of it. He had made every effort to avoid going to an employment tribunal hearing, and had hoped for arbitration but the respondent was not prepared to submit to independent conciliation. As for the letter of June 2016, that came from Annabel Butcher, the HR manager, not the chief executive, and he did not consider that the decision could affect that of the chief executive. It became clear from listening to the claimant that by arbitration he understood that his claim would be referred to a body which would make a decision not similar to that of an employment tribunal, on the rights or wrongs of the dispute and that he hoped it would make an award for transitional arrangement along the lines of the temporary reduction envisaged by Public Health England.[10]He added that he had taken legal advice (it was explained to him that he did not have to say what the advice was). It was clear from the substantive proceedings that the claimant had advice from the BMA (at least, said he was consulting the BMA) about his clinical excellence awards and their reduction, as well as other employment issues that arose from time to time, and he added that he had been a member of a senior committee of the BMA.[11]On ability to pay, the claimant conceded that as a National Health Service consultant physician he was reasonably well paid by most people’s standards on the usual consultant scale, without the clinical excellence award. He did not wish to say anything else about his ability to pay. The tribunal takes into account to that he is already drawing all or part of his occupational pension, and that it is based on more than 30 years’ service.[12]The claimant has acted unreasonably in bringing proceedings. It is noted that he agreed that of all the detriments pleaded at the outset, all others are but background the loss of a level IX clinical excellence award. He knew this had been refused from November 2015. His quarrel was with the decision that there should be no transitional protection. He was told that it was based on national policy. He was sent the national ACCEA document from 2014 that no transitional provision, and he had seen the NAMPS document urging Trusts to hold the line and not make special arrangements. He may say that none of these say explicitly that when a national award ends he reverts to nil, but is difficult to understand how he could interpret a statement that there will be no pay protection as meaning anything other than when the national award ended he would no longer get that money. He was told very clearly in November 2015 that the local award was made on its own criteria. Ms. Murdoch’s letter of November 2015 is courteously worded, but can only be interpreted as meaning that she relies on her advice as objective and given in good faith, but also will look at it if he is the provides anything to show advice is wrong. This is not an agreement to an appeal process special to him, as the claimant argues, and he does not have such evidence. He knew, or ought to have known, that the trust’s decision was based on national guidance, which he had read, and it he had no reasonable prospect of showing that it was because of any whistleblowing activity.[13]The claimant is not a lawyer, but he is by virtue of his qualification and experience an intelligent man, used to making decisions based on evidence, and, from his committee work, can be presumed to be familiar with documents about doctors’ national terms and conditions and about the conditions and constraints under which Trusts operate within the National Health Service. The documents say what they mean, in plain English, and are not Chancery pleadings, even if their meaning is unwelcome to him.[14]Based on that, I conclude that the claimant ought reasonably to have appreciated firstly that the operative date of the decision adverse to him was November 2016, or by a stretch, June 2016, and secondly, that the reasons for the trust’s decision were playing, relied on national guidance, and followed the pattern operating in many other trusts. In these proceedings he asserts that the reason he did not get payment protection transitional or otherwise, is because of his whistleblowing activity. It is hard to see how he could believe that, although allowance must always be made for the fact that a person who considers himself unfairly treated can always find it hard to objective about the reasons for the treatment. It should be noted that although his combative letter included three paragraphs about whistleblowing, he does not in terms state that the reason why he was reverting to nil was because of it. The fact it was a hint or a veiled threat, not an explicit statement, suggests that his rational self knew they were not linked.[15]The claimant in fact was asking for special treatment. It is hard to see how that can be a detriment. The trust’s position was always that they must apply their rules across the board. Their case was that he was being treated no differently because of his whistleblowing. His case seems to be that he should have been treated differently – and favourably – because of his whistleblowing. Not to give him more favourable treatment than others who had not blown the whistle could not ever have established detriment.[16]Had the claimant given this rational consideration – and this would not require legal knowledge – he could have understood the trust’s reasons were based on national practice. At best he lacked objectivity, as will be familiar to doctors aware that they should not try to diagnose or treat themselves or their families, but seek help from a colleague. He was twice urged to seek advice, and plainly he had access to advice, whether through the BMA legal department, or arranged for himself, which was practically possible given his income level. He was aware of the risk of an order for costs been made against him, and the reasons why, and these are substantially the reasons which succeeded in the preliminary hearing. Finally, plainly the claimant has ability to pay - that is not a reason not to make an order.[17]I conclude(1) the claimant brought proceedings unreasonably alternatively(2) that they had no reasonable prospect of success, both on the grounds of time, and because it should have been plain from the documents that the Trust acted as it did for reasons which applied to all doctors losing a clinical excellence award. As the exercise of discretion, I take account of the access to advice, and the fact of two costs warnings. I do not consider that the respondent was at fault for failing to settle when they believed they had a strong case in the employment tribunal, nor that there were any grounds for going to arbitration, which is interpreted by the claimant means an independent review and decision, which is what the tribunal has provided on analysis of the law. At best the claimant hoped for something that was, on his view, fair, but it cannot be said that relying on the law, and the contract, and national guidance about clinical excellence awards, is unfair. This is a case where it is right to make an order for costs.[18]The respondent set out its claim for costs in a schedule, for preparation between 27 July and 14 September of £5,607.78, and counsel’s brief fee for 14 September of £2,500, both before VAT.[19]It is understood that the Trust is not registered for VAT. This means it cannot recover the VAT element by set off, and VAT must be added to the bill.[20]Of the £5,607 78, there are 6 hours claimed for an associate, amounting to £950, for attending on counsel, which seems more than a standard service. Some of the time allowed is on the generous side. The solicitor’s preparation fee is reduced to £4,000. Adding counsel’s fee and VAT, the claimant is ordered to pay the respondent’s costs in the sum of £7,920. JUDGMENT having been sent to the parties on 18 September 2017 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
Relevant Law
[21]This approach is confirmed in the National Awards Scheme document, which provides that once a person is receipt of pension he ceases to be entitled to his award, although he can reapply, in which case the assessment will be made on work done since he has retired.[22]On 13 April 2015 ACCEA published a document announcing the terms of a fresh round of clinical excellence awards in 2015. The Claimant says that the number of awards given in that round was halved, and there are now about 300 only.[23]The Claimant was considered for such an award, with the support of the respondent, but in this round the he was unsuccessful - his evidence is that he was 0.2 points below the minimum. The Claimant says that he accepts this decision and does not challenge it.[24]In December 2015 the Claimant either applied for a review or an appeal of this decision, but was told by ACCEA on 13 January 2016 that the matter was closed and would only be reconsidered if there was new evidence.[25]An examination of that letter suggests that some of the dispute was whether the Claimant had been entitled to receive an award at all after 2009, and as to whether the Committee had or had not been told that he was already drawing his pension. The Claimant says that he engaged with further correspondence about ACCEA about this, but he abandoned it towards the middle of 2016 on the basis that he was no longer able to recover documents from the Trust which would show what the Committee had or had not been told in 2009. It had certainly petered out by June 2016.[26]The Claimant has not suggested that any absence of correspondence for this period is related to his whistleblowing.[27]The Claimant also accepts that the ACCEA decision not to give him an national award is unrelated to any whistleblowing activity within his own Trust, - 5 - which had supported his application for a renewed national award with a glowing reference.[28]Returning to 2015, when the Claimant knew that he did not have a national award he made application for a local award from his own Trust.[29]On 17 November 2015, just before the decisions were due to be announced, the Claimant wrote to the Respondent’s HR Manager, Annabel Butcher saying he considered that he should get a Clinical Excellence Award at Level 9. Ms Butcher replied straight away saying that the Committee had just met, and that he would be hearing shortly, and that they had discretion to make awards, based on the evidence, between levels 1 and 9. She added: “unfortunately, as you know, you return to a position of not having any points when you lose your National award. Therefore any points awarded to you will take up the scale from this position”.[30]On 19 November the Claimant received an official letter to say that he had been granted a local award of one point on the scale. According to the local terms, he had 14 days in which to appeal that decision. The Claimant did not appeal, and at today’s hearing said that he accepted that this assessment was right on the evidence that had been correctly measured against the Trust’s own criteria; he did not say that the one point award was wrong.[31]On 20 November the Claimant protested to Ms Butcher saying that “I’d be grateful for copy of Trust policy about this”, and he was concerned about his statement about returning to the position of not having any points. He said it was surprising when the Chief Executive had written in support of an award at level 9 which he had only just missed. Annabel Butcher replied on 22 November: “I believe that this is all set out in ACCEA’s 2014 report where it details the removal of pay protection for the loss of National Award. I can send you a copy of this you like.” The Claimant replied that he would like to see a copy of the Trust policy about having to return to zero without points.[32]He repeated this is an email to the Chief Executive, Claire Murdoch on 25 November, and challenged the statement that you returned to a position not having any points as a misinterpretation of ACCEA guidance, and said it was unfair. He then referred to the secrecy inspectors in February 2015 asked him to import unfair treatment following his whistleblowing regarding safeguarding children, so suggesting, without making a specific link, this is what he would be dealing. He concluded: “I will be grateful you would ask that the current HR approach to considering my CEA is reviewed and the currently described approach is unfair”.[33]Later that day, Ms Murdoch replied. She said that it had always been her expectation as Chief Executive “that we follow national policy and guidelines in relation to all matters related to doctor’s pay and awards… At the heart of this approach is the just commitment to fairness and consistency.” She relied on internal expert advice and other expertise appropriate. The advice that she received was given in good faith. It was consistent with national guidance as understood, and applied to all doctors in the same position. She went on: “If that - 6 - advice is incorrect than we would always revisit decisions in the light of the consistency with national guidance. Certainly, I myself only been aware of conscientious and diligent personnel doing the best furnish the trust with sound and fair advice. Certainly if you or the BMA representative have other evidence I suspect that the expectation is that will be put forward so that it can be properly considered.” She then thanked him for his flagging up concerns and need for improvements.[34]The claimant responded saying that this was reassuring. He would be discussing an appeal against his national award. “Perhaps it is therefore better to defer consideration of my local trust CEA application until it is clear if I can continue with my national appeal”.[35]On 17 June 2016, by which time it was clear to the claimant that he was unable to overturn the decision on the national award, the Claimant returned to the correspondence with Annabel Butcher, saying that it was very unfair that he should drop from 9 points to 0 on assessment for a local award; he asked to see that what the local process was so he could provide evidence. He also said: “I recognise that this is a new phenomenon for trusts caused by the recent warming of national awards. Applications should be considered separately from the annual local clinical excellence awards panel meeting which considers awarding additional local CEOs on position at first of April”. He concluded, “I would be grateful if you would let me know the process for deciding the appropriate level word for award in April 2015 so that I can provide evidence”. The claimant is not explicit in this email whether he disputes the merits of his local award level one, or whether he is also saying that there should be separate local awards to compensate those who have lost national awards. The reference to evidence suggests the former, the reference to the halving of national awards suggests an additional scheme.[36]Ms Butcher replied on 24 June. She said that she had sought guidance from NHS employers, from the National Association of Medical Personnel of Specialists, and the Trust’s own solicitor and with a careful reading of its own CEA policy and terms and conditions, and “I can confirm that moving you to the bronze award to zero level CEA was the correct process and in line with the terms and conditions of employment and NHS employers and the NAMPS guidance.” She had checked whether he could appeal under the CEA policy, attached, but that stated: “appeals could only be accepted where it can be demonstrated the procedure had not been properly applied”. If he had any such evidence an appeal would be considered. “However, we cannot accept an appeal based on the fact that you have been moved from a bronze to zero CEAs and then awarded a level 1 in the normal round, as this is correct procedure”.[37]The Claimant did not pursue the matter again until 16 November 2016, when he wrote to the Chief Executive about a range of concerns; at paragraph 5 he returned to “appeal regarding my local CEA”. Referring back to the email of November 2015 in which Ms Murdoch had said the Trust would be prepared to revisit its decision and if he or the BMA had evidence to put forward, he restated some of the terms of that email and concluded: “I would appreciate confirmation of your continuing support to allow me to appeal regarding the reduction in my - 7 - CEA from level 9 National CEA to zero local CEA using a formal appeal process agreed between the Trust and the BMA.”[38]The Claimant clarified today that he does not say that there was a formal appeal process agreed at that time between any Trust and the BMA, but that he thought there should be one.[39]Ms Murdoch replied in detail on all his points on 30 November 2016; on paragraph 5 she said that she had revisited the issue carefully. She felt that ACCEA were mistaken not to renew his award, but went on: “In respect of local CEAs I understand that the clear principles which are consistently applied in this Trust and most or all other Trusts are: - Consultants who now seek a national CEA do so effectively “at risk” of any entitlement to a local CEA - where a consultant’s national CEA is withdrawn and not renewed, there is no protection for this and the withdrawal will not lead to the automatic reinstatement of any previous or other level of CEA (as Annabel set out in her email of 24 June 2016). - the award of a new local CEA (irrespective of whether the consultant who has previously filled a withdrawn national CEA) must be subject to a fair and transparent process, as is clearly set out in the trust’s local CEA procedure given the above, my conclusion is that I cannot support an out of process ‘appeal’ to increase your local CEA. This would effectively be an appeal against the National CEA decision, not against any local process. Whilst you may not agree with the decision of the ACCEA, that decision stands and there is simply no processed you to seek an increased local CEA instead. It would be unfair and an abuse of process for me to support this”. She ended with a statement of support for his valued work.[40]On 30 November 2016 the Claimant contacted a number of colleagues about concerns about changes to the Trust Out of Hours Service for vulnerable young people and a number of them wrote back to say that they would support an independent review being carried out on this. None of them refer to the pay issue.[41]The ACCEA document of April 2015 section headed “effect of submitting an unsatisfactory renewal application”. Paragraph 2.5.4 says “following consultation with stakeholders, the Department of Health has asked ACCEA to change the rules relating to pay protection. From first of October 2014, a protection is no longer applicable to any award that is, or pre-or has previously been, withdrawn or not renewed. Consultants due to submit a renewal application in the 2015 round will not receive the financial value of the award after 31st of March 2016 if it is not renewed due to either not achieving the standard all the submission of an application” - 8 -[42]Perhaps in anticipation of the difficulty of consultants who previously had national awards now losing them, the National Association of medical personnel specialists wrote to its members on 19 February 2015, saying “you may be aware that consultants who have applied for renewal of the national awards are in the process of being told that they had not been successful by ACCEA. In the light of this, some Trusts, under pressure from the BMA and the LNC, are putting in place locally agreed transitional arrangements to allow these consultants to be put back into the local CEA system. For example, some Trusts are putting back at the point of the CEA scale where they left it for the national scale… It is not clear how these arrangements are being funded. NHS employer’s guidance states there is no such protection in the terms and conditions of employment so we would urge you to consider any locally agreed transitional arrangements very carefully. If the terms and conditions are applied properly, then the consultant should go back down to “no award” status. The greater the number of trusts that apply locally agreed transitional arrangements the more difficult it is for the rest of us to apply the terms and conditions as they should properly be applied. We would urge you all to hold the line on applying national terms and conditions”. Members were asked to report back on how medical staffing departments were dealing with this.[43]There is no comprehensive information on what Trusts across the country did about pay protection for consultants losing a national CEA, but in the bundle is a December 2016 round of emails which originate from another London NHS Trust (Royal Brompton) which they asked other Trusts what their practice was about transitional protection when consultants lost a national award. Replies from five Trusts all say they did not make transitional arrangements; the bluntest says: “snakes and ladders back to zero at Royal Free”.[44]The claimant produces a 2017 document from Public Health England, an NHS body, which sets up a sliding scale reduction from the previous award level back to zero over 3 years, to cushion its employees who have lost national awards. Discussion – Time[45]The Respondent relies on the 17 November 2015 informing the Claimant that on the ending of his national award he falls back to zero unless given a local award; the time runs from then in respect of any decision not to keep his pay at a level commensurate with the national award. The Respondent’s fallback position is that it was 24 June 2016, after the pause while the claimant concentrated on the national award, when Annabel Butcher stated in clear terms the reasons why it was considered that his award should fall back to 0 when the national award ended.[46]The Claimant relies on the 30 November email as going back on a previous commitment to revisit the decision if the evidence showed that their existing HR evidence about this drop was wrong. - 9 -[47]In deciding when time runs from it is perhaps necessary first to examine what precisely what is act causing financial detriment that the Claimant asserts followed from his whistleblowing. The Claimant does not quarrel with the ACCEA decision about his national award which resulted cessation of payment from 1 April 2015. Nor does he quarrel with the decision of the local committee to award him level 1. He does not assert that his whistleblowing is a factor in either decision. Although the Claimant has stated more than once in the course of today’s hearing that he is not seeking pay protection, meaning he should continue to receive level 9 despite the decisions of the national and local committees, perhaps along the lines lines of red circling as understood by employment lawyers, it appears that he does seek is some kind of pay protection, meaning that there should be a transitional provision to cushion him from the loss of the award, whether by maintaining the old level of award or graduating the reduction. His correspondence with Claire Murdoch and Annabel Butcher was designed to challenge the reversion to zero when he lost the national award. If he does not challenge the awards themselves, this must be about preserving his award on a different ground. Pressed on the point, he said the Trust should have a sliding reduction like the one devised by Public Health England document.[48]He also inferred from the AMPS email of February 2015 that some Trusts had made local arrangements. His argument is that his employer should have made such a transitional arrangement for him, and for any other doctor in their employment who had lost a national award (though he is not aware there are any others). He says he did not take this point up with the Trust explicitedly after the invitation in November 2015 because he was without documentary evidence of what such arrangements were.[49]The claimant accepts that his on own terms and conditions were silent as to what would happen if lost his award and also that the arrangements for Clinical Excellence Awards are entirely separate from his individual terms and conditions.[50]In other words, the event causing financial detriment is the decision not to introduce a scheme of transitional protection for those who lost their awards, or the failure to introduce such a scheme.[51]The Claimant argues that the November 2015 correspondence contains a a promise to review the position, (impliedly on transitional protection, because the claimant does not challenge either the national or local award decisions themselves), which promise was withdrawn on 30 November 2016, and that it is that withdrawal of promise which was to his detriment.[52]The Tribunal disagrees. The decision of 17 November 2015 stating that he was getting a level 1 on the local award, coupled with the email from Annabel Butcher saying that he went from 9 back to 0 when he lost his national award, were clear enough. Claire Murdoch’s email a few days later was just as clear. Though couched in polite terms about reviewing the decision if he could find evidence that their advice on the point was wrong, it was(1) a statement he was not to get protected pay, and(2) not an offer of a special appeals process, to the contrary, it stated that every doctor in his position should be treated the same. - 10 -[53]The Claimant has not produced evidence as invited to show that their interpretation of any national guidance or policy on cutting from 9 to 0 when a national award is lost is wrong, and there is no reason to think that if he did produce some evidence they would not consider whether their earlier interpretation was mistaken. This is different from deciding not to introduce a scheme of transitional protection.[54]Having regard to Sougrin, the 30 November 2016 email is not a reversal of an earlier promise of a special appeal process but a blunter restatement of the 24 November 2015 position that the Trust believes it is right about having to cut the clinical excellence award pay back to zero when a national award is lost, and that there is no appeal process for this. There is no assertion that if he produces evidence that the Trust has interpreted its policy (applying to all doctors) wrongly it will not be reconsidered. It is not a new act. It is a restatement of the decision notified to him in November 2015.[55]As to the decision to cut his pay, if indeed the Claimant was in any doubt as to the November 2015 decision being final, as it is was subject to him producing evidence about a contrary interpretation of the policy, it would and should have been clear to him by 24 June at the latest, when he got the email from Annabel Butcher restating it, and pointing him to the ACCEA document of April 2015 stating that there were no transitional arrangements. He had protested on 17 June 2016 it was unfair to go from 9 to 0, and this was the prompt reply. He was being told there was no pay protection or preservation.[56]By 24 June 2016 it was clear to the Claimant what the Trust based its decision on, and if he disputed it, or if he thought that the decision not to preserve his award was in any way related to his whistleblowing activity, he could present a claim to an Employment Tribunal. He did not present a claim within three months (subject to early conciliation) and it is out of time, unless it was not reasonably practicable for the Claimant to bring a claim within time.[57]The Claimant had previously consulted the BMA his representative body about employment disputes; he had also held senior positions within the BMA, and he knew where to get advice, even if he did not know what the time limit was, he would have been aware in general from the BMA’s advisory role that time limits apply in Employment Tribunals, and that it might be wise to check what they were. There was no practical impediment preventing him from bringing a claim. The only reason advanced by the Claimant for not considering an Employment Tribunal claim then was that he pursuing a national appeal through correspondence through the first half of 2016, so he put local issues on hold. Pursuing an appeal is not usually a reason why it is not reasonably practicable to present a claim to a Tribunal, but even so, in January 2016 the national appeal was unsuccessful, and by June 2016 he had abandoned the search for material to challenge that information on drawing his pension in 2008/9 was in some way responsible for the decision not to renew his award, though that would not have altered the decision not to make a new award in 2015, which was based on evidence of post-retirement activity. The Claimant - 11 - knew that neither line of attack on the national award was going anywhere, he knew the Trust was refusing to retreat from the view that he had to go from 9 to 0 without any special or transitional procedure, and if he believed that there was any unfairness related to his whistleblowing activity (and he said as much in his 14 July 2016 email), he could present a claim. in the event[58]The Tribunal concludes that the claim was out of time; that it was reasonably practicable for the Claimant to have presented a claim in time, and that there is no jurisdiction to hear the detriment claim. Strike Out - Prospects of Success[59]In case I am wrong about the 30 November 2016 email and the nature of the act that constitutes the detriment, I have gone on to consider the Respondent’s application to strike out the claim on the basis that it has no reasonable prospect of success.[60]The Respondent relies on causation of the loss of the award, or the failure to provide transitional protection, arguing that it is plain from the reasons the Trust gave at the time and now why the Claimant was not entitled to retain any part of his national award pay, but must go back to zero when being considered for a local award that this decision was neither caused nor materially influenced by his whistleblowing activity.[61]The Respondents argue that all the necessary material is in the documents, oral evidence cannot upset them.[62]Reviewing the arguments, the respondent said at the time it relied on the ACCEA document published in April 2015 abolishing pay protection following consultation with stakeholders. This was an NHS-wide policy, and applied to all in the claimant’s position. There was also the Association of Medical Professionals document, 25 February 2015, which suggests that some Trusts had made local arrangements, urging National Health Service employers generally to hold the line against transitional provisions. This puts the Respondent’s decision in November 2015 (that the claimant went from 9 to 0, then got the local award at level 1) in context of a national picture where lack of protection was said to be the norm, and transitional arrangements were patchy and to be resisted. The document was sent by people unconnected with the Respondent Trust, and without knowledge of the Claimant’s whistleblowing activity. There is no evidence that transitional arrangements were common. The only scheme known to the Claimant is the 2017 Public Health England document about a temporary cushion. While he may have limited access to material about other Trusts, this is presumably something where the BMA could collect evidence. The only other evidence in the emails of December 2016 showing that a number of other London Trusts had not transitional protection, and that those who lost national awards reverted to zero. These all point to the failure to provide pay protection being common across many NHS employers, in no way unique to the Respondent. It is not even shown that the Respondent is in a minority on this. As a matter of speculation it could be concluded that the Respondent would have - 12 - decided to operate transitional protection but for the claimant and his whistleblowing being a thorn in their flesh, but there is no evidence before the Tribunal from which it could reasonably be concluded that this is what happened. All the documents point to this being a standard position, encouraged by the Department of Health, and followed by other Trusts. This is sufficient and convincing evidence why the Respondent did not provide transitional protection. There is nothing the claimant can point to other than the inference that some Trusts have provided pay protection, and the evidence that at least one has a three year scheme. This will not establish that the reason why the Respondent did not provide pay protection was because of the whistleblowing.[63]In addition to the clarity of the documents there is the fact that the Trust supported him with a glowing reference (as the Claimant said in his application to renew his national award). The Claimant’s background material includes complaints of delayed appraisals, and a proposal to remove from him a special responsibility, which he believed to be related to whistleblowing activity, but both were resolved satisfactorily by negotiation. Neither is conclusive, and if the documents were not so clear would have to be tested, but this material at first sight does not indicate ill will.[64]The Tribunal concludes that there is no reasonable prospect of success in proving that the decision that he should go from 9 to zero when moving from a national to a local award when ACCEA policy changed in 2015 was caused or materially influenced by his whistleblowing activity, or that any decision not to introduce a scheme of pay protection was motivated by that. The Trust considered it to be unfair to make special arrangements for him which did not apply to colleagues or across the board. If he is in a category of one (the only employee of the Respondent to have had a national award and lost it) this is beside the point, but it demonstrated that they had regard to NHS wide policy, not his own position. Strike Out - Scandalous or Vexatious[65]The final leg of the Respondent’s application is that the Claimant’s actions in bringing this claim was scandalous or vexatious. It is argued that he made sure that threats to blow the whistle and make trouble for the Respondent accompanied his demands for special treatment in relation to his own financial position. Specifically it is said that he knows that he has no legal entitlement to a protection, but uses 56 disclosures postdate the decision not to award pay protection, and that is at times he discloses an improper motive in bringing these proceedings, such as in 2017 threatening media publicity in the public arena “if we cannot resolve these issues internally”.[66]It is the case that in some of the correspondence addressed in this hearing there are veiled threats that if not given what he wants he will go public on matters the Trust will find unpleasant, for example the reference to CQC inspectors, (Ms Murdoch in her November 2015 reply told him to go ahead), and so might be the raising of appeal rights as one paragraph in the long letter of November 2016, sandwiched between many others devoted to whistleblowing matters past and future, and the timing of his round robin email to colleagues on - 13 - 30 November 2016. If he was threatening further whistleblowing activity so as to cow the Trust into granting him a special scheme, that was improper - whistleblowing is protected because it is in the public interest that wrongdoing is exposed, and whistleblowing should not be manufactured to further a private advantage - and if he knows full well he has no right to expect pay protection but expects a settlement so the Trust can avoid adverse publicity, that is vexatious. That said, in the light of the other decisions made, it is not necessary to examine this in detail. The Claimant acts in person, and although a senior doctor could be expected to be able to reason and assess evidence, it is always human to find it difficult to be objective about your own case. What may look very like veiled and improper threats to an outsider may in the Claimant’s own mind, especially if there is some history, be a genuine assertion that the only reason he has not been given pay protection is because he has made trouble for his employer. The Tribunal does not find that the claim is vexatious and scandalous. Case No: 2200730/2017 EMPLOYMENT TRIBUNALS Claimant: Dr G.M. McClure Respondent: Central and North West London NHS Trust. London Central 20 October 2017 Employment Judge Goodman RULE 72 CONSIDERATION OF APPLICATION TO RECONSIDER
Relevant Law
[1]The claimant has written to the tribunal on 26 September asking for reconsideration of the reserved costs judgment sent to the parties on 18 September 2017.[2]Under the Employment Tribunal Rules of Procedure 2013 a request for reconsideration may be made within 14 days of the judgment being sent to the parties. By rule 70 a Tribunal “may reconsider any judgment where it is necessary in the interest of justice to do so”, and upon reconsideration the decision may be confirmed varied or revoked.[3]Rule 72 provides that an Employment Judge should consider the request to reconsider, and if the judge considers there is no reasonable prospect of the decision being varied or revoked, the application shall be refused. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it.[4]Under the 2004 rules prescribed grounds were set out, plus a generic “interests of justice” provision, which was to be construed as being of the same type as the other grounds, which were that a party did not receive notice of the hearing, or the decision was made in the absence of a party, or that new evidence had become available since the hearing provided that its existence could not have been reasonably known of or foreseen at the time. The Employment Appeal Tribunal confirmed in Outasight VB Ltd 10.7 Judgment with reasons – rule 62 Case No: 2200730/2017 v Brown UKEAT/0253/14/LA that the 2013 rules did not broaden the scope of the grounds for reconsideration (formerly called a review).[5]I have now considered the costs judgement, having delayed doing so until the reasons for the substantive judgment had been transcribed and corrected. I regret that I am unable to detect any matters that go to the interests of justice. The claimant reviews many of the matters dealt with in the substantive judgement. While he accepts the tribunal’s decision both on time and prospects of success, he does not accept that he acted unreasonably in bringing the claim, or pursuing it to a hearing. He points to his statement in the witness statement but he is not seeking pay protection as in the ACCEA document. However, the reasons set out in paragraph 12 of the costs judgement, pay protection is what he was seeking even if that is not what he called it. He acknowledges that some trusts are not providing transitional protection for consultants who have lost their national awards, but does not accept that this does not mean that the respondent’s refusal was unrelated to his whistleblowing. I concede that if he was in a category of one, it might be hard to distinguish special treatment for himself, from a general scheme for hypothetical others. Nevertheless, his detailed points do not overturn the conclusion that these are matters which rationally he could and should have accepted before bringing these proceedings, and that it was unreasonable to pursue this claim in the face of the costs warnings documents. Even if he is right, these are arguments about the reasoning and the factual assessment which are properly the subject of an appeal. He is not suggesting that he did not have an opportunity to put his case, or that there is new and relevant evidence that could not have been produced on 14th September, or anything like that.[6]I conclude that there is no reasonable prospect of the costs judgement being successfully reconsidered.[7]I apologise to the claimant for misspelling his name. This is always irritating.