Dr Chisti v East Sussex Healthcare NHS Trust: 2307514/2024 and 2307515/2024
JUDGMENT
[1]Applications are made on behalf of the Respondent to determine at this Public Preliminary Hearing issues relating to jurisdiction and/or strike out of claims made by Dr Chisti pursuant to Tribunal rules 38(1)(a) and 52(1)(b) respectively.[2]It is common ground that Dr Chisti has submitted two ET1 claim forms. The first – 2307515/2024 - was lodged in June 2024 and identified claims of: i) Ordinary unfair dismissal; ii) Whistleblowing detriment; and iii) Arrears of pay[3]No detail were set out as to what was said to constitute the ‘arrears of pay’.[4]A second claim form – 2307514/2024 - was lodged on 11th July 2024. This ET1 related to and articulated claims for unlawful deductions from wages brought pursuant to s.13 of the Employment Rights Act 1996 (“the Act”) and in the alternative Breach of Contract. Deduction from Wages/Breach of Contract claim[5]In respect of this second claim the respondent submits that the last deduction from wages alleged in the particulars dates to the June 2023. The respondent highlights that s.23(2)(a) of the Employment Rights Act 1996 imposes a time limit of 3 months (plus any extension period for early conciliation) from the date of the deduction in which to bring a claim. They submit that the claim brought pursuant to s.13 is considerably outside of the 3 month time limit.[6]S.23(4) provides a power to extend the period in which a claim under s.13 of the Act may be brought if the tribunal concludes it was not ‘Reasonably practicable to bring claim within the 3 month period’.[7]I have today heard evidence and submission from Dr Chisti. Dr Chisti explains that he first raised the deductions from his wages with the respondent in around the July of 2023 when he became aware of the issue. Dr Chisti gave evidence that the respondent accepted that there had been an underpayment and promised to resolve the issue. He says he engaged in correspondence with the respondent but he was not aware of an ability to bring a claim to the Employment Tribunal and he did not research the same either.[8]Due to later events, where he was accused of misconduct, in around November of 2023 he sought professional help on employment issues from the British Medical Association. He told them about the issue of unpaid wages and they said they would assist him in making representations to the respondent. Dr Chisti however still did not bring a claim nor take any action to research the possibility of doing so. Dr Chisti gave evidence that he became extremely emotionally distressed at this time given his suspension from work which he also cites as a reason he was not able to bring a claim at this point.[9]It is clear having heard Dr Chisti’s evidence that he is an intelligent man. He had access to the internet and to some professional assistance in relation to employment matters. He is more than capable of searching for information and is capable of understanding complex matters. Whilst I understand that the end of 2023 was an emotionally stressful time for Dr Chisti I note that from his evidence he had the presence of mind to raise the issue of alleged deductions from his wages with the BMA and as such it is clear he was still in a position to appreciate and deal with the matter in communication with the respondent. In all the circumstances I am satisfied that it was reasonably practicable to bring a claim for unauthorised deductions from wages within the primary 3 month time limit and so, the claim brought pursuant to s.13of the Act, I am satisfied is out of time and must be dismissed.[10]The same conduct as founding the claim however is also expressed as amounting to a breach of contact. No issue is raised that such a claim is brought in time but the respondent invites me to strike it out as they say there is insufficient detail in the ET1 such that it can not be responded to and has no chance of success. I do not agree, in an attachment to the ET1 form a two page document headed ‘Grounds of Complaint’ succinctly sets out the factual background alleged and identifies the sums said to have been deducted. It is clear that this issue has been under discussion between parties for some time and the Respondent is aware of what is being alleged. I am not satisfied that the claim has no prospect of success and as such I do not strike out or determine the claim at this preliminary hearing. The claim continues to a final hearing and a separate case management order will be issued in respect of it. Claim in respect of ‘Ordinary Unfair Dismissal’[11]Returning to claim form one – 2307515/2024 – the respondent submits that the claimant has less than 2 years of service at the point that his contract of employment ended. In the ET1 form the claimant identifies that he was employed by the respondent from 10 October 2022 to 14 February 2024. The respondent agrees with these dates.[12]In submissions to me today Dr Chisti has confirmed that those are the dates he worked for the respondent. He has explained however that he had previously worked for other NHS employers and so believes he has ‘continuous service’. He accepted that he joined the respondent after a short gap in his employment and that this was a new post not any transfer from his previous employment. The respondent submits that although Dr Chisti had worked for other NHS employers and so his contact expressed that he had ‘continuous service’ for employment benefits, that does not effect the statutory period imposed by s.94 and s.108 of the Act.[13]The right at s.94 of the Act not to be unfairly dismissed is subject to the provisions of S.108 of the Act. S.108 provides that the right does not apply unless the employee has been employed for a period of two years. Although I appreciate Dr Chisti’s understanding of his contract it is clear that he has not been employed by the respondent for a period of two years at the point of the termination of his contract. I am not of the opinion that the contractual wording can vary the statutory requirement imposed by s.108 as is submitted by the respondent and as such I agree satisfied that the claim made in respect of Ordinary Unfair Dismissal has no prospect of success and so must be struck out pursuant to Tribunal Rule 38(1)(a). Claim in respect of Whistleblowing detriment[14]The claimant in claim form 1 alleged he had made disclosures concerning short staffing and increased waiting times leading to an unsafe environment at the hospital.[15]In an emailed response to a direction made for further and better particulars in connection with this assertion the claimant has identified an email he sent to Ms Turner, a manager at the respondent, on 27 July 2023 with concerns about staffing as forming the provision of the information. He also sights other ongoing verbal discussions with those employed by the respondent. Further the claimant has described that his concerns were dismissed and he felt he was disparaged in a staff ‘Whatapp group’ which was also used by member of management and that a post from Ms Turner described him as being a ‘frustrated doctor’ in response to his disclosures.[16]Although in the direction to provide further and better particulars the claimant was asked to clarify if he was claiming automatic unfair dismissal arising from his disclosures he did not deal with that aspect when he provided his response.[17]At the hearing today however the claimant has made clear that his claim does include an allegation of automatic unfair dismissal. He cites what he says was the deliberate denial of opportunities to allow him to put his case across when an allegation of serious misconduct was raised against him. He suggests that this occurred, at least in part, because of the disclosures he had made and his dismissal was as a result of those or principally because of those.[18]The respondent invites me to determine that this claim has no prospect of success and so strike it out today. Having heard submissions I do not accept that this claim has no prospect of success and so I do not strike this claim out for the reasons given below.[19]I am also asked to consider making a deposit order as it is asserted the claim has little chance of success, similarly I find that I am unable to reach that threshold at this point and so do not make a deposit order.[20]In my assessment whilst I understand the complaints made by the respondent about the lack of specificity in relation to the alleged disclosures and detriments it is clear that the claimant has articulated material which appears capable of supporting such a claim and has articulated why the claimant believes that detriment extended to his ultimate termination. In my view a hearing is necessary to determine the facts alleged. A hearing is also necessary to determine the interplay between the complaint which was made against the claimant (leading to his termination as the respondent asserts) and any detriment from the whistleblowing alleged by the claimant leading to his termination. These issues will need to be determined at a final hearing and a case management order in respect of the claims of Automatic Unfair Dismissal and Whistleblowing detriment will follow. Employment Judge Richter 15 January 2025 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.