Mr N Vaswani v The Royal Liverpool and Broadgreen University Hospitals NHS Trust: 2403798/2014

EMPLOYMENT TRIBUNALS

Case No 2403798/2014

Between

Mr N VaswaniClaimant

The Royal Liverpool and Broadgreen University Hospitals NHS TrustRespondent

Before

Employment Judge Shotter

Date 11 May 2017

JUDGMENT

[1]On balance of probabilities the claimant would not have been awarded points in relation to the 2011/2012 and 2012/2013 applications made under the Operational Policy for Awarding Discretionary Points to Associate Specialists and no award of damages for breach of contract. 2. .The respondent is ordered to pay to the claimant the sum £2487.41 gross, less lawful deductions of tax and national insurance for accrued unpaid holiday totalling 7 days.

[3]The claimant is given leave to present late a bundle of documents marked “C1 remedy” in the interests of justice.

REASONS

[1]This is a remedy hearing following promulgation of the Judgment on liability 16 December 2015 (“the promulgated judgment”) in which the Tribunal held it was an implied term of the claimant’s contract of employment the respondent would convene and hold an awards panel in respect of his applications for discretionary points for the periods 2011/2012 and 2012/2013, the respondent failed to do so in breach of contract, and the claimant’s claim for breach of contract was well founded.

[2]The Tribunal found the claimant’s claim for outstanding holiday pay as an unlawful deduction from wages brought under Section 13 Employment Rights Act 1996 was well founded. On behalf of the respondent a request was made that the Tribunal refrain from entering judgment on remedy in relation to accrued unpaid holiday pay until after the costs application listed with the agreement of the parties 25 & 26 September 2017 on the basis that the respondent’s costs exceed the holiday pay claim. The Tribunal, having considered the matter, decided it is not just and equitable for the claimant to wait any longer for holiday pay that accrued under statute at the effective date of termination and should have been paid then. Given the fact the respondent has now agreed the claimant’s gross (and not net) figure, it is incomprehensible that payment remains outstanding. The Tribunal appreciates there may be difficulties in enforcement if the respondent’s application for costs succeeds and the claimant retires abroad; nevertheless, this is not a sufficiently good reason for the claimant’s remedy judgment to be withheld. Accordingly. The respondent is ordered to pay to the claimant accrued unpaid holidays equalling seven days for the holiday period 1st August 2013 to 20th June 2014. Following the remedy hearing this has been agreed at £2487.41 gross, the net sum was not capable of agreement and accordingly the Tribunal enter judgment for the agreed amounted less lawful deductions of tax and national insurance. Evidence

[3]The Tribunal heard oral evidence from the claimant on his own behalf, and Dr Farokh Jal Setna, associate specialist in radiology at Wirral Teaching Hospital. The Tribunal found Dr Setna to be an honest and generous witness who gave limited evidence due to the insufficient information put before him and his lack of knowledge relating to the respondent’s Operational Policy that should have been applied, and was not, when an application for discretionary points is made. It is notable Dr Setna did not have before him the 2010 application that gave rise to an award of one discretionary point, he would have been unaware of the substantial amount of duplication and the issues higher management had with some of the information provided by the claimant .

[4]On behalf of the respondent the Tribunal heard oral evidence from Kay Louise Carter, Assistant Director of Medical HR and Education and Joanne Henshaw, directorate manager and divisional head of performance for the surgical division. The Tribunal found both witnesses to be credible, and conflicts of their evidence with that of the claimant’s have been dealt with below. On balance the Tribunal preferred the evidence of Kay Carter and Joanne Henshaw in preference to that of the claimant, who despite his experience in sitting on panels considering discretionary points application, was not sufficiently distanced from his own application to be in a position to assess them objectively, unlike Kay Carter. As was the case in the liability hearing the Tribunal did not find all aspects of the claimant’s to be credible, for example, his statement that the respondent had back-paid him because he had met his contractual obligations by undertaking ad hoc clinics. The Tribunal preferred to rely on Joanne Henshaw and Kay Carter’s evidence supported by undisputed contemporaneous documentation there was an issue with the claimant being paid for more hours than he had worked and he had refused over a period of time to agree a job plan with an increased number of hours to make up the contractual hours he should have worked.

[5]The Tribunal was referred to an agreed bundle of core documents from the liability hearing and the separate bundle prepared by the claimant, documents attached to witness statements and a bundle of documents produced last minute by the claimant marked “C1 remedy”, which he was given leave to introduce on application following which oral judgment was given. In short, having considered arguments from both sides, the Tribunal took the view that despite the claimant having had since December 2016 at least to find and produce the documents, and despite their late disclosure, given the claimant’s status as a litigant in person and the balance of prejudice that swung in his favour, it was just and equitable to allow the claimant to refer to the bundle on cross-examination, which he did. It is notable the claimant’s statement on remedy did not refer to the documents in bundle C1 remedy, and there was no explanation as to why some dates appeared to be irrelevant falling before and after the period in question 2011-2012 and 2012-2013. The claimant was given time before closing submissions to finalise his submissions and invited by the Tribunal to deal with the fact that the claimant appears not to have produced much by way of contemporaneous documentation to show he was making an “above average contribution” or “outstanding contribution,” the criteria set out in the respondent’s Operating Policy. The claimant did not take up the opportunity, and it appears to the Tribunal there is very little by way of documentation to substantiate his assertion that a varying number of discretionary points, including the maximum, should be awarded.

[6]Details of the claimant’s discretionary points applications have been set out below, and the Tribunal considered in detail their interrelationship and the earlier 2010 application that was successful following which a discretionary point was awarded. In addition, the Tribunal were referred to a written submissions and oral submissions together with references to case law, which has been dealt with below. The Tribunal does not intend to repeat the oral submissions in their entirety and has attempted to incorporate them into this judgment with reasons. The Tribunal has also revisited the promulgated judgment. For ease of reference a number of the facts (not all) as found by the Tribunal and set out in the promulgated judgment were relevant to the consideration of remedy have been extracted. The relevant facts for consideration of remedy 4 On 5 December 1995 the NHS Executive sent to all regional authorities. including the respondent, an “advance letter (MD) 7/95” notifying employers of new arrangements for the payment of Discretionary Points to Associate Specialists employed on the national terms and conditions of service for hospital medical and dental staff. The arrangements effective from 1 April 1996 and applied to all associate specialists on national terns and conditions of service (clause 3). It is not disputed the claimant was eligible to make his applications for payment of 1 or more discretionary points and by the effective date of termination the claimant, who remained on the “old contract” was the only associate specialist eligible to apply for discretionary points. 5 The respondent had discretion on the number of points to be granted, if any, in any individual case in any particular year notwithstanding the fact the claimant was the only applicant. This was an important consideration in the Tribunal’s assessment of whether damage flowed from the respondent’s breach and having considered the factual matrix and evidence before it, the Tribunal determined the claimant had not discharged the burden on the balance of probabilities the discretion would have been used in his favour. 6 It is not disputed the respondent was to put in place the provision for a panel of professionals convened to assess an application for discretionary points, and from 1996 to 2011 a panel was convened annually until 2008, and thereafter the panel was appointed to consider applications for 2008/2009 and 2009/2010.

[7]It is not disputed the claimant was awarded one discretionary point in the 2008 and one in 2010. He was unsuccessful in 2005, 2007 and 2009 because he failed to evidence anything new over and above his previous applications, and the evidence of Kay carter was accepted on this point. The criteria guidelines were set out in Annex B attached to the “advance letter (MD) 7/95” and provided at clause 3; “To warrant payment of a discretionary point, associate specialists will be expected to demonstrate skills and expertise beyond what would normally be expected of a practitioner in the grade and make an outstanding contribution in one or more of the following fields: the service of patients, teaching, research and development of the service.” Clause 4 provided “progression at each step up the discretionary point scale will reflect the increasing quality and range of the contribution made by the associate specialist…” Clause 5 set out the areas to be taken into account e.g. professional excellence and national contribution.

[8]Clause 6 provided the arrangements for deciding payment and mechanism for professional input should be considered and approved by the authority or trust. The associate specialists should be informed of these arrangements. The authority or trust should satisfy itself that the arrangements will enable decisions on payments to be made on an equitable and fair basis in all cases, with the appropriate degree of professional input necessary to support judgments on the professional aspects of an associate specialist’s work [clause 7]. It is not disputed the respondent issued an Operational Policy for awarding discretionary Points to Associate Specialists (“the Operating Policy”). The panel was required to adhere to the Operating Policy when considering individual applications for discretionary points, including the 2011/2012 and 2012/2013 applications made by the claimant had a panel been convened. The panel was not required to follow different policies produced by other Trusts, such as Wirral, and each Policy differed. Finally, the British Medical Association guidelines relied on by the claimant is irrelevant; the panel was not required to have recourse to them relying exclusively on the respondent’s Operating Policy.

[9]Accordingly, the Tribunal has considered the claimant’s applications for discretionary points under the respondent’s Operating Policy exclusively, and in doing so, has taken into account the comments made by all witnesses appearing before it, before arriving at a decision. The respondent’s Operational Policy for awarding discretionary Points to Associate Specialists (“the Operating Policy”)

[10]It is not disputed the claimant was employed on the “old” 2008 contract and his points were to have been calculated under the respondent’s Operational Policy for awarding discretionary points to associate specialists dated 2 March 1999. This is the relevant policy for this remedy hearing; this underlines the process by which the claimant’s discretionary point’s application would have been considered, and no other Operational Policy from any other Trust or BMA guidelines is relevant. It is notable Dr Setna, whom the Tribunal found to have been an honest witness, was unaware of the respondent’s Operating Policy, and in his capacity as a member of The Wirral University Teaching Hospital, had experience of assessing applications for discretionary points but not in compliance with the respondent’s Operating Policy. Dr Setna formed his assessment on the additional information provided by the claimant that would not have been before the panel had one been convened, and he could only take on face value what was written by the claimant both on the application forms and the additional information provided. The Tribunal accepts Dr Setna scored honestly, but his scores did not take into account citations from the clinical director or senior manager who, on the balance of probabilities, would have pointed out the information provided by the claimant was incorrect, there was duplication and equally important, the respondent’s had taken a justified view the claimant was not working to his contract during the relevant period. These are all key matters Dr Stena had not been in a position to take into account, through no fault of his own, and the Tribunal found this has skewed his generous point scoring.

[11]The Operational Policy provided the following:11.1 All eligible associates’ specialists will be circulated with the agreed criteria for determining awards and invited to submit a standard CV questionnaire to the chairman of the local trust awards panel (medical director) by an agreed date. The chairman of the awards panel will make submissions available to panel members at least 2 weeks before the first meeting. Citations from senior managers, clinical directors and outside reputable bodies, such as royal colleges and faculties should be submitted to the chairman of the awards panel…by an agreed date.” – Clauses 2, 3 & 6. The claimant’s senior manager Joanne Henshaw would have produced a less than favourable citation that would not have benefitted the claimant and so the Tribunal finds.

11.2 Clause 4 set out the composition of the local trusts award panel of 6, which included the medical director, director of human resources and associate specialist from outside the respondent. It was provided substitutes may be nominated. It is more likely than not Kay Carter would have sat on the panel to advise and give guidance as she had a considerable amount of experience, and had she done so, her advice to panel members concerning the claimant’s performance would not have been favourably to him.

11.3 The Tribunal found Joanne Henshaw and Kay Carter possessed a considerable amount of knowledge relating to the claimant’s performance and duties, and both were involved in discussions concerning increasing his working hours to avoid payment of hours not worked that arose when on call duties were stopped, and the claimant’s access to theatre limited to ad hoc surgery. The claimant raised an objection to Kay Carter’s input into the award panel on the basis that she did not have the medical expertise to score his applications, and as a consequence her scoring as set out in the written statement could not be relied upon. The claimant also criticised the fact Kay Carter used Joanne Henshaw’s statement before this Tribunal to score. The Tribunal did not accept these claimant’s objections in this regard were valid.

11.4 At the liability hearing the Tribunal found it was for the panel consisting of the claimant’s professional peers to decide whether the claimant’s application was successful or not, and this was not a decision within the ambit of Kay Carter or the Peter Williams, the medical director, who could have formed part of the panel. The Tribunal has had evidence since at this remedy hearing that Kay Carter scored in one consultants round for discretionary points, and had been designated to sit on behalf of the director of HR (who had already carried out the scoring). The Tribunal accepted Kay Carter ran the associate specialist rounds for discretionary points, and she had been involved in 6 rounds which entailed not scoring but her advising on scores and giving guidance. She also had experience of running the Consultants Excellence Awards at national and local level. Part of her role requires consultation with other staff members, such as the clinical director and senior managers e.g. Joanne Henshaw, the directorate manager and divisional head of performance for the surgical division, who would provide feedback on the accuracy of an application. Kay Carter, on the balance of probabilities, would have advised and assisted the panel by making the comments she did in her witness statement before the Tribunal, and relaying the comments of Joanne Henshaw with the result that the claimant’s application would not have succeeded and no points awarded bearing in mind the panel’s discretionary power. The Tribunal took the view given Kay Carter’s role in the discretionary points process, and the fact that a valid panel could not reasonable be recreated for the purpose of these proceedings, her evidence was persuasive. She has considerable experience and knowledge not limited to the discretionary point’s applications, but also of the claimant’s performance at meetings and committees. In her capacity as assistant director of medical HR and education, within the respondent, she possessed knowledge of educational matters and the claimant’s performance in regard to this also. In addition, Kay Carter was fully appraised on the Operating Policy itself, and had the benefit of Joanne’s Henshaw’s statement, who herself was an appropriate person given her status and detailed knowledge of the claimant.

11.5 The Tribunal accepted the additional information produced by the claimant for the purpose of these proceedings would not have been put before a full panel, either at the initial consideration stage or on appeal. The reasons Kay Carter gave for this rule was credible; it was an attempt to ensure parity between applicants by limiting their written application to a box within a specific domain. The claimant’s evidence that his additional information would have been considered by the panel was misconceived; he had no experience of appeals and could not say one way or another given the fact that the Operating Policy was silent on this point.

11.6 Clause 5 of the Operating Policy provides a provision for an appeal. An appeal had never been sought by any applicant in the past or carried out by the respondent in this regard. Clause 5 set out the following; “Any eligible associate specialist who is nominated for an award…may appeal. The jurisdiction of the appeal panel will be to ensure that the decision arrived at was fair and reasonable in the circumstances.” Despite the clear wording of this clause, the evidence before the Tribunal was that the claimant, if no award had been made, could have appealed. The appeal would not be a re-scoring, the scoring and ranking would be looked with a view establishing fairness of scoring and ranking and decisions based on ranking. Kay Carter confirmed the appeal panel would have to refuse to consider the additional information provided by the claimant, over and above that set out in his application forms. In short, an appeal panel considered the original information before the original panel only and would have refused to consider any additional information over and above that, and so the Tribunal finds. The criteria for awarding discretionary points

11.7 The relevant criteria is as follows:11.7.1 Discretionary points are neither seniority payments nor automatic increments.

11.7.2 To warrant payment of discretionary point associate specialists will be expected to demonstrate an above average contribution [my emphasis] is respect of service to patients, teaching, research and the management and development of the service.

11.7.3 Progression at each step of the discretionary points scale will reflect the increasing quality and range of the contribution made by the associate specialist. To attain the maximum of the discretionary point scale associate specialist will be expected to have demonstrated an outstanding contribution [my emphasis] to services.

11.7.4 The criteria for payment of discretionary points should allow for contributions made in the following areas to be taken into account : i) professional excellence, including - quality of clinical care of patients, - service development, - professional leadership - contribution to professional and multi-disciplinary team working - research, innovation and improvement in the service, - clinical audit - administrative or NHS management contributions - teaching and training - Wider contributions to the work of the NHS nationally. The claimant’s applications for discretionary points 2011/2012 & 2012/2013

[12]Both applications were completed by the closing date of 23 July 2013. On the front page a number of key points for applicants were set out. The Tribunal has extracted the following relevant key points:12.1 Point 2 warns applicants “Do not be repetitive. You cannot gain a score for an achievement which has received a score in another area.

12.2 Points 4: “try to give an idea of the level of significance of an achievement.”

12.3 Point 5: “It is not enough to say you are on a number of committees or that you are a Lead Clinician. You must demonstrate what you have achieved on those committees, how much time they taken up, what you have achieved as lead clinician that is over an above expectations of that role [my emphasis].

12.4 Point 6: “When describing your role in an achievement makes it clear what you actually did: being involved with an initiative is different from leading, developing and proactively implementing.”

12.5 Point 8: “If you received points last year, only include achievements since that date. Rewards can not be made repetitively for the same work [my emphasis].

12.6 Point 9: “If you are paid additional sessions for carrying out a role you may still receive a score for achievements’ in that role if the committee considers that although you are paid, your commitments and achievements are over and above what you are paid for.” Associate Specialists Discretionary Points CV Questionnaire 2011/2012 (“the 2011/2012 application”)

[13]It is highlighted in the preamble that “points are awarded for service over and above that which will be normally expected.”

[14]The Tribunal accepted Kay Carter’s evidence that 0.35 was normally the maximum allocation of points awarded, but as the claimant was the only applicant and had he merited a point allocation it could, but may not have been, rounded up to one point per application in accordance with discretion. The Tribunal accepted the claimant’s application would have been scrutinised in detail given the ongoing dispute concerning the claimant being paid for less sessions that he worked. Kay Carter’s evidence that the claimant would have scored insufficiently to gain a point was accepted by the Tribunal on the balance of probabilities.

[15]The Tribunal has extracted the following sections from all of the evidence before it:15.1 Section 3 for which there were a maximum 50 points available in total. In section

3.1 “development and evolution of clinical services to date (maximum 10 points)” the claimant wrote; “started a new general urology/pentoscrotal clinic on 1 December 2011 and since then the number of slots have increased by 20%...I have increased the number of patients from my theatre list from 7 to 10 from April 2011…and sometimes carry out extended evening theatre session without any extra payment…now I have 2 evening clinics…”

15.2 Had the claimant’s application been considered by a panel, the Tribunal found on the balance of probabilities, it would have been made aware of Joanne Henshaw’s view the claimant had not started a new Pentoscrotal clinic in December 2011, the clinic had already been in place, the increase of patients by 20% related to the Urology department as a whole and not the claimant’s workload alone and there was no increase in the claimant’s clinical workload. Further, in accordance with the oral evidence of Kay Carter on crossexamination, the expectation of the claimant was 10 and not 7 patients on his theatre list, and the panel would have been advised of this also. Joanne Henshaw gave oral evidence at the remedy hearing that a theatre list comprises of 10 patients in a theatre session. The respondent’s view was 10 patients was the minimum in respect of vasectomies, a simple surgical procedure. Joanne Henshaw had known the claimant since 2005 and had been involved in performance targets. In 2012 she was responsible for Urology and had day-today management of the claimant. It is more likely than not her observations on the claimant’s application would have been accepted by the panel, particularly her belief during the relevant period that the claimant was short of sessions, overpaid, did not do the extra clinics as claimed, and had been paid for clinics and to work until 8pm. She would have denied the claimant’s clinics were overbooked and that he regularly stayed beyond his work finish time. Further, the claimant was earning family planning fees and a sum of money for each vasectomy in addition to his normal salary; this evidence was not disputed save for the actual amounts earned which the Tribunal were not concerned with.

15.3 Kay Carter’s evidence that the claimant would have scored 4 for being on call up to September 2011 is accepted by the Tribunal on the balance of probabilities. The 4 points were allocated to recognise intensity at work whilst on call. After this date the on call work stopped to meet the Working Time Directive. The information provided by Kay Carter would have been persuasive to the panel. As a result of the loss of on call work the claimant’s clinical sessions were short on his job plan, the claimant was aware of this and the need to replace the lost work with additional sessions.

15.4 The claimant completed section

3.2 “audit/clinical governance” referring to the following; “I regularly audit my work and contribute to the monthly audit.” Had the claimant’s application been considered by a panel Kay Carter and Joanne Henshaw’s view was that the claimant did not actively participate in meetings; his attendance was rare as the claimant was often in London covering his SAS role, and an infrequent attendee at the audit meetings. The audit point was included in the claimant’s 2010 audit and was a duplicate claim. Clinical audits were a professional expectation of normal practice and the claimant had failed to evidence the percentages he claimed.

15.5 The claimant completed section

3.3 “leadership” claiming he led the andrology services, and wrote; “lead chairman SAS doctors of Mersey Region 2011-2012, chairman BMA policy and procedural committee, member of deanery panel for the management of SAS development fund…evaluate and sanction finds for the personal development of SAS doctors”. It was accepted by Kay Carter at the liability hearing the claimant was the SAS link, the hospital’s lead for the Staff and Associate Specialist responsible for coordinating educational activity for SAS doctors. It was a Deanery appointment for which the claimant received remuneration as set out in the promulgated judgement. Kay Carter took the view the claimant had not provided evidence of the time commitment showing it was over and above what was expected in the claimant’s role, however, she awarded 2 points to reflect “it was good he undertook the role.” The Tribunal took the view the claimant was not specific, despite a requirement to provide detailed information, as indeed the claimant had done in his 2007 and 2010 applications. Point 5 is clear; it is insufficient for the claimant merely to list committees or state he was lead clinician, and must demonstrate achievements and the time spent over an above expectations. Point 6 clarifies “When describing your role in an achievement makes it clear what you actually did: being involved with an initiative is different from leading, developing and proactively implementing.”

15.6 In relation to section 3.3 Kay Carter scored a maximum of 2 out of 10, and for the reasons given by her on the balance of probabilities, the Tribunal finds this score was more likely than not to have been reached by a panel. It is notable Kay Carter and Joanne Henshaw denied the claimant was a surgical lead maintaining there was no surgical leads, and it is likely the panel would have taken the view the claimant was exaggerating in order to enhance the likelihood of his application succeeding.

15.7 The claimant completed section

3.4 “Magnitude and Intensity of Service Work” maintaining he had 10 patients booked on his theatre. This is a duplication of section 3.1, as indeed was the repeated reference to a 20% increase in patients booked, generating an increase in income for the respondent. The increase in patients has already been dealt with above. The claimant maintained the additional number of patients/clinical work resulted in additional administration. It was accepted by the respondent the claimant had no junior support, and was required to carry out administrative duties, and had been so for a considerable period of time. Joanne Henshaw’s view was that the claimant chose to work intensively over a period of 3-days rather than 5, hence increasing the intensity of the work and at his own choosing his lunch break may have become a working lunch. In these circumstances it is unlikely on the balance of probabilities the claimant would have been awarded any points for 3.4.

15.8 The claimant completed section 4.1, 4.2 & 4.3 “Grants in the last 5 years” with reference to there being no opportunities for him. The claimant in his additional information referred to a number of matters which he deemed relevant to 4.1. These matters are irrelevant as they have not been included within the application form and thus could not have been taken into account as the further information would not be before the panel. The claimant also indicated the medical director and the local negotiating committee had agreed section 4 in its entirety would not be included; the Tribunal had no evidence apart from the claimant’s word and preferred that of Kay Carter, who would have been aware had such an agreement been reached, that there was none. The claimant would not have been awarded points for section 4.

15.9 The claimant completed section 5 “teaching activities” (maximum 25 points) maintaining he taught postgraduates once a fortnight, “certain surgical procedures to final year registrars” teaching the “tricks of the trade.” In the claimant’s 2010 application he referred to teaching “SHO’s in clinics and hands on surgical work in theatre. Demonstration and direct supervision of juniors to carry out video flexible cystocscopy and supervision of nurses every Thursday…” Joanne Henshaw indicated the claimant was not certified to teach, and there was an issue as to whether the claimant required certification or not. The Tribunal preferred the claimant’s evidence that he had been teaching in the past and certification was not required. Kay Carter was unconcerned with whether or not the claimant was certified, and as assistant director of education the Tribunal would have expected her to have known whether certification was necessary. Her view was that teaching and mentoring of undergraduates, postgraduates and nurses was part of the claimant’s normal day-to-day work, and took the view teaching nurses about consent was a “vital” part of the day-to-day job and not meritorious in a claim for discretionary points. The claimant gave no indication of time commitment and further, he was already receiving payment for the SAS tutor role. The reference to SAS tutor role and member of deanery panel in 5.2 was duplication within the form at 3.3. Joanne Henshaw denied the claimant was an SAS tutor, this was not denied by Kay Carter who maintains he was paid, she was involved in what he was doing and he “had contributed little.” Kay Carter was cross-examined on this point by the claimant, who did not agree, however the Tribunal accepted her evidence was an accurate assessment of how she perceived the reality of the claimant’s teaching contribution and it is this assessment that would have been before a panel. The claimant would not have qualified for any score under section 5 on the balance of probabilities and so the Tribunal finds.

15.10 The claimant completed section 6 attracting a maximum 25 points. In section

6.1 the claimant confirmed he was a member of the local negotiating committee (“the LNC”) and met every 2 months, a duplicate claim to that made in the 2010 application. Kate Carter’s undisputed evidence was that the LNC met once every 2 months for no more than 1.5 hours, no real work outside of this was required, and the claimant often did not attend. The Tribunal noted that the claimant had not attended the LNC meeting in January 2015, albeit this was not within the relevant time period, it is evidence the claimant did not attended each and every LNC meeting and on balance, Kate Carter’s evidence is accepted.

15.11 At section

6.2 the claimant claimed he was chair of regional SAS committee, a duplication of section 3.3 and a position for which he received remuneration. With reference to

6.3 the claimant would have been awarded points, in accordance to Kay Carter, despite failing to set out what he had achieved as opposed to attending committee meetings. Kay Carter recognised the value of the claimant’s contribution to the reputation of the respondent and it was her view, accepted by the Tribunal on the balance of probabilities, that 2 points out of 5 would have been awarded. The Tribunal noted the claimant was not on an international committee; he was on a national committee where international issues were discussed and Kay Carter may have analysed his contribution incorrectly when she made reference to him taking part in international committees.

15.12 At section

6.4 there was a repetition of lead in surgical andrology and a reference to being lead in day care surgery, the former was denied. Joanne Henshaw’s position was that she led the programme, not the claimant, who worked day care but not develop it, and she was not challenged on this evidence.

15.13 At section

6.5 the claimant referred to “work with colleagues and managers to achieve statutory targets and improve the finances…” Kay Carter’s view was that it was a basic part of the claimant’s job, and not over and above. The claimant does not say what the statutory targets were aimed at or how he had helped to improve finances and by how much. The Tribunal took the view that this was also a repetition as the claimant at 3.4 referred to increasing finances. In relation to section 6 as a whole the claimant would have scored a maximum of 4 on Kay Carter’s account, and the Tribunal accepted this evidence on the balance of probabilities.

15.14 In relation to section 7 the claimant set out “other contributions” attracting a maximum 25 points, referring to committees he had sat on in section 7.1, Kay Carter’s view was that she would have scored the claimant 10 points due to reputational benefit to the trust, despite the claimant failing to identify the benefit of him sitting on these committees. The 10 points was awarded for the whole generic section 7. Joanne Henshaw disputed the claimant developed the vasectomy pathway, as maintained by the claimant at section 7.2 point 3. The claimant produced documents at A3 and A4 of C1 remedy bundle comprising of an exchange of internal emails. It is apparent from these emails the document dealing with pathway to vasectomy was already a draft at the point the claimant was being asked to contribute, which he did when his expertise was sought, and it cannot be said he was responsible for its development. Joanne Henshaw gave evidence it was not used in the end by the respondent, the Tribunal found this is not a relevant fact the issue being whether or not the claimant had demonstrated an above average contribution. Joanne Henshaw and Kay Carter does not deal with 7.2 in any detail, other than to say 10 points would have been awarded for section 7 in its entirety and so the Tribunal finds would have happened on the balance of probabilities had the panel considered the matter with input from Kay Carter, who would in turn have referred to Joanne Henshaw’s view.

[16]In relation to the entire application for 2011/2012 Kay Carter would have recommended the claimant received a total score of 24 out of 150, an insufficient scoring to merit an award of discretionary points. On the balance of probabilities the Tribunal finds no points would have been awarded due to the duplication with the 2010 application, the claimant’s application failing to demonstrate work over and above what was normally expected and which on close scrutiny appears to be in part “misleading,” against a backdrop of the claimant being involved in meetings and discussions concerning his work plan and paid salary for hours not worked. The second application - Associate Specialists Discretionary Points CV Questionnaire 2012/2013 (“the 2012/2013 application”)

[17]In 2011/2012 the claimant would not have received a discretionary point. The 2012/2013 application was largely a duplication of the 2011/2012 application and it must follow as a matter of logic that he would not receive scores for the duplication. In addition, some of 2011/2012 was duplicated through to the 2010 application when the claimant received one discretionary point, and that duplication continued i.e. the 20% increase, evening sessions worked and so on. The Tribunal has observed the following:17.1 There was a reference in section

3.1 to the claimant initiating 2 extra clinics in 2012, however, this was considered to be not above and beyond the claimant’s contractual clinical requirements by the respondent, especially bearing in mind the claimant was still being paid for more sessions than he worked. The new sessions introduced were designed to alleviate the problem, and yet, during this period there was still an ongoing dispute concerning the claimant’s job plan and his reduced working hours for which he was still being paid.

17.2 In section

3.2 there is a reference to the claimant auditing his theatre work; this was expected as part of his role and Kay Carter took the view it did not evidence a significant achievement that went over and above what was expected of the claimant complying his contract. It is notable the claimant’s application lacks evidence, and he continued to claim in section

3.3 that he was lead for andrology and penile corrective surgery. Kay Carter would have awarded 2 points in respect of the penile corrective surgery, on the basis that whilst the claimant was incorrect in stating “no one else [could] carry out this type of corrective surgery” but he had carried it out. In relation to section 3 the claimant would have scored a total of 2 points in accordance with Kay Carter. The same point was made in relation to section

3.4 as in the previous application, namely, that it was the claimant’s choice to see more patients over a reduced number of days.

17.3 Section 4 was identical to section 4 in the 2011/2012 application.

17.4 Section 5 was similar in effect to the 2011/2012 application, the claimant confirming he “continued” to be an examiner, suggesting this was not an additional responsibility he had taken on since the previous applications for discretionary points. It is notable the claimant’s application in 2010 is far more detailed than the 2012/2013 application, and there was much duplication although not verbatim. The claimant had at times, changed his description, but the effect was largely the same and so the Tribunal finds. For example, in the 2012/2013 application the claimant referred to “trained nurses to obtain consent…” In the 2011/2012 application he referred to “teach nurses to obtain consent…” and “training certification of nurses taking consent for…” in the 2010 application. The claimant cited certifying and training nurses on consent from 2010 through to 2013 with no appreciable change, the claimant having been awarded his point in 2010.

17.5 No points were scored for teaching activities, Kay Carter being of the view the claimant was required to teach under his contract.

17.6 In section 6 “administration and management” duplications were present; some parts were verbatim such as “represent SAS doctors on LNC” in comparison with 2011 “A member of LNC to raise issues concerning SAS doctors” and 2010 “a member of LNC to discuss policies and issues with management” for which the claimant received one discretionary point. Kay Carter’s view that the claimant would have scored 4 in recognition of the reputational effect for the Trust, a view repeated in the 2011/2012 application and on the balance of probabilities, the Tribunal found a panel would have reached the same decision.

17.7 In section 7 “other contributions”, the claimant referred to being members of committees that appear to be largely duplicated in that they are a selection of committees. Just sitting on committees was insufficient and the claimant had not evidenced what he had achieved, nevertheless, a score of 7 would have been awarded in Kay Carter’s assessment. No clarification was given as to why she would have scored a 7; the Tribunal noted the achievements set out in box 7.2 “organising and chairing a SAS conference on 6 March 2013 and achieve agreement at GMC postgraduate board to accept and put in place the regulatory framework for credentialing.” This was claimed in 2011/2012. Points were given for an equivalent section 7 in 2011 /2012. There was no duplication of this in the 2010 application. The claimant produced document A8 in the bundle marked “C1 remedy” a letter dated 2 December 2015 from the director of medical education in which it was confirmed the claimant had been a member of the SAS funding panel since May 2012. This fact would not have been relevant to the 2010/2011 application, but was relevant to the 2012/2013 application section 7 for which the claimant, according to Kay Carter, would have scored 7. The Tribunal are unable to gainsay this score.

[18]Kay Carter’s evidence that she would have recommended a total score of 13 for the 2012/2013 application, largely due to duplication, lack of evidence, untrue statements and the absence of “anything” which showed the claimant had exceeded the normal expectation of his role. On the balance of probabilities the Tribunal accepts a panel would not have awarded the claimant a discretionary point bearing in mind bearing in mind Kay Carter’s analysis and her theoretical input into the panel had it been convened. The claimant’s second application also took place against a backdrop when he was allegedly not working his contractual hours, let alone working above and beyond.

[19]On the balance of probabilities, taking into account the fact the claimant was not allegedly fulfilling his contractual hours, and the existence of an ongoing dispute concerning this, his work plan and the substantial amount of duplication going as far back as 2010, the claimant was not going to attract a high enough cumulative score to be awarded a discretionary point or points and so the Tribunal finds. The fact the claimant was the sole applicant under the old contract did not lead to an automatic point being awarded; the criteria had to be met. The claimant needed to show he had gone above and beyond his contractual duties, including those he had already been awarded discretionary points for and additional remuneration received for roles undertaken. For example, the claimant from the 1 April 2009 the claimant was appointed SAS Lead for 3 year duration and he received extra payment for this. In an email dated 4 September 2009, approximately 5 months into the claimant’s new role as SAS lead, the claimant wrote to the respondent as follows; “let me clarify the situation for you. I am being paid 3 sessions for my oncall commitments since my appointment in 1996 therefore my associate specialist contract is 11 plus 3 sessions. Now I have been appointed as SAS lead and I am entitled to be paid one further extra session for this work therefore my payment should be 11 plus 4.”

[20]The Tribunal has referred to a backdrop involving a dispute over hours worked and payment received. The promulgated judgement refers, and for clarity the Tribunal reminded itself of the basic facts surrounding this dispute.

[21]For a number of years prior to the claimant submitting his applications on 23 July 2013, there had been an issue with the claimant’s “light timetable” and meetings had taken place concerning this as early as May 2010 with Joanne Henshaw, and these meetings continued until March 2014 until an agreement was reached on the job plan issue. This period covers the entire period the claimant was maintaining he was “going over and above.” The Tribunal are of the view this would have been a difficult hurdle for the claimant to have successfully navigated in order to persuade a panel to use their discretion in his favour. The claimant submitted at this remedy hearing the fact the respondent backdated his pay from 15 May 2013 to end of December 2013 was evidence he had met his contractual hours because it says “in recognition of sessions being worked and lists/clinics having been covered during this period.” The email in question is dated 14 March 2014 and it cannot be reasonably interpreted to read the claimant had fulfilled his contractual obligations and should receive back-pay previously withheld from 15 May to 31 December 2013. The email puts beyond doubt the fact there was an issue with the claimant’s working hours that resulted in payment being withheld, and the evidence accepted by the Tribunal following the liability hearing was the claimant had prevaricated resolving the issues surrounding his job plan, to which a reference was made in the 14 March 2014 email to an “agreement…recently been reached with regard to a new job plan.” Contrary to the claimant’s evidence, the contemporaneous documentation points to a longstanding dispute over the claimant’s job plan and working hours, and this would not have held the claimant in good stead when he applied for further remuneration by way of discretionary points for a period when he allegedly received more pay than the hours he worked merited.

[22]The Tribunal is satisfied this matter would have been raised with the panel. Kay Carter had been querying with the claimant the number of sessions worked, and she had been pressurising him to agree a job plan with a view to the claimant receiving payment commensurate for the work he actually carried out, as she believed he was being overpaid, and had been so for some time, due to sessions not worked. Limitations had been placed on the claimant in respect of his access to theatre sessions and this had impacted on some of his work, although Kay Carter believed there was other work for the claimant to carry out in addition to the theatre. In short, Kay Carter was concerned the claimant was not working 11 plus 3 sessions and being paid for these sessions, stating in a letter dated 20 February 2013 sent to the claimant; “as we can at the moment identify only a possible maximum of 9.5 sessions, and I know that you have a 1 session additional duty for being SAS representative, I have agreed…to give you 3- months notice that your salary will be reduced to 11 plus 1 sessions. I informed you this may happen last Thursday and therefore the date of reduction will be 14 May…You must however agree an appropriate job plan because currently you are not fulfilling your whole time obligations….If after 3 months you have not agreed an appropriate job plan it may be that the additional session is stopped and that session of work (Trust SAS lead) incorporated into your 11 session job plan.”

[23]The claimant applied to the respondent on 23 July 2013 in 2 separate application forms relating to 2011/2012 and 20012/2013. In accordance with the procedure he was required to demonstrate that what he had achieved was over and above expectations of that role. The application provided at paragraph 2 for details of the sessions paid to be inserted, and the claimant confirmed he had standard 11 sessions and 3 sessions “for taking up extra sessions in the evening.” The standard 11 sessions was in dispute, Kay Carter’s view being the claimant did not work all of them. It is undisputed in September 2012 the claimant’s theatre was cancelled without consultation. The claimant referred the Tribunal to his complaint concerning this, particularly the email sent 10 September 2012 to Mark Fordham. It is not for the Tribunal to comment whether cancelling the claimant’s theatre list was fair or not. The evidence before the Tribunal was that there had been a 30% cut in theatre allocation, the core business of the Trust was carrying out cancer operations, and work more aligned with business agreements and service objectives. Vasectomy was not the respondent’s priority, and the claimant was offered training in TRUS prostate biopsy in or around 4 July 2011 via email from Mark Fordham, clinical director, which he refused with the result that all he could carry out were ad hoc vasectomy operations as and when the theatre was vacant. This in turn reduced the number of operation carried out, and it cannot be the case, as now argued by the claimant, the panel would have found all of that work had been replaced by the ad hoc surgery and he was demonstrating an above average or outstanding contribution. It is notable the claimant also refused to take on worked supervised by a consultant he had trained in the past. It was the claimant’s view his status was equivalent to that of a consultant, and this position was made clear to the Tribunal throughout both the liability and remedy hearings.

[24]This remedy hearing has not been straightforward. In its promulgated judgment the Tribunal expressed its concern with assessing the claimant’s performance going as far back as 2011 given issues concerning whether the claimant had performed his contract, let alone over-performed in accordance with the Operating Policy. The Tribunal noted the majority of the documents set out within bundle “C1 remedy” were not relevant, falling before April 2011 and after April 2013. The Tribunal concluded there was no satisfactory independent documentary evidence before it, in addition to the claimant’s applications, that he had demonstrated an above average contribution in respect of service to patients, teaching, and research and the management and development of the service that would merit a discretionary point being awarded. In contrast, there was considerable evidence by way of contemporaneous correspondence and documents, that the claimant were not working his full contractual hours.

[25]In oral and written submissions Mr Powell, on behalf of the respondent, conceded the Tribunal had jurisdiction to assess damages for breach of contract arising out of the claimant’s lost opportunity to have a discretionary point(s) awarded. He continues to maintain all evidence points to the fact the claimant would not have received any points; the Tribunal agreed for the reasons set out above. It was submitted the case was a “classic case of loss of chance or a loss of opportunity” and the Tribunal were referred to Chaplin v Hicks

[1911] 2 KB 786

per Fletcher Moulton LJ at 798, McGregor on Damages 19the Edition paragraphs 10-93 and Chitty on Contracts 32nd Ed Loss of chance at Paras 20-26.

[26]Chaplin v Hicks established that damages were recoverable in contract for the loss of a chance, and the principle applies in tort. The claimant must prove on the balance of probabilities that he has lost a real or substantial chance, as opposed to a speculative one, and if he does the court will assess damages according to the degree of probability that the chance would have occurred. The claimant's loss may be of the chance of earning profits or a capital gain. It is notable many of the loss of chance cases referred to in McGregor and Chitty relate to solicitors negligence, personal injury cases and the like. There are no cases remotely similar to the situation the claimant had found himself in, other than possibly Chaplin v Hicks which was not a case of personal injuries – damages were given for the loss of an opportunity to be considered (on a competitive basis) by women for a theatrical engagement. At page 798 Farewell LJ held “the two words chance and probability may be treated as being practically interchangeable, although it maybe that one is somewhat less defined than the other. The necessary ingredients of such an action are all present; the defendant has committed a breach of his contract, the damages claimed are a reasonable and probable consequence of that breach, and loss has accrued to the plaintiff at the time of the action. It is obvious…that the chance or probability may in a given case be so slender that a jury could not properly give more than nominal damages…but in the present competition we find chance upon chance, two of which the plaintiff had succeeded in passing; from being one of six thousand she had become a member of a class of fifty, and …was first in her particular division by the votes…out of those fifty there were to be selected 12 prize winners, if the plaintiff had never been selected at all the case would have been very different. In my opinion, the existence of a contingency, which is dependent on the volition of a third person, is not enough in justifying us in saying that the damages are incapable of assessment.” 6 Farewell LJ at page 799 referred to the judgment of Best CJ in Richardson v Mellish; “It is clear that the plaintiff could only be appointed for one voyage…But though that is the case may not look to what which is the practice of the East India Company…the plaintiff is entitled to have compensation for being deprived of that which almost to a certainly happens…” Farewell LJ held “almost to a certainly means the contemplated event is very probable…It is clear…that damage resulting from a loss of a chance in winning a competition is assessable…” 7 Mr Powell submitted the very object and scope of the convening of a panel was to give the claimant the chance of being awarded discretionary points; the breach of contract deprived the claimant of this, and it was suggested the Tribunal awarded no damages to reflect the fact the claimant would not have succeeded and the lost chance was wholly speculative. 8 Mr Powell to his credit also pointed out that as the opportunity to have been awarded discretionary points lies in the past, the question of whether the claimant would have been awarded any discretionary point is to be determined on the balance of probability, a burden of proof well known in the Employment Tribunal. 9 The claim before the Tribunal is one brought under a common law one for damages for breach of contract, although the Tribunal had jurisdiction to hear it under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Where the employer's breach of contract consists of a failure to follow a contractual procedure damages are calculated on the basis of putting the employee back into the position he or she would have been in if the employer had not been in breach of contract. In other words, the claimant must be put in the position he would have been in if the respondent had complied with the contractual procedure and convened a panel to consider the claimant’s applications for discretionary points. It is for the claimant who alleges that he has been caused damage by the respondent’s failure who has the burden of proving not only that he has suffered the damage, but also the extent or amount of that damage. The claimant has failed to discharge this burden, the respondent having establishing facts, on the balance of probability, confirming no discretionary points would have been awarded and thus monetary damages do not flow form the breach. 10 It is the Tribunal’s view that there is no requirement for it to evaluate the chance of the claimant being awarded discretionary points. There is sufficient historical information for the Tribunal to compile a factual matrix and reach a decision, on the balance of probabilities, as to what would have happened had the panel been convened. This it has done. If the Tribunal is wrong on this point, and the correct analysis would have been, as suggested by Mr Powell, to consider whether the claimant’s lost opportunity was wholly speculative or not, taking into account imponderables, the Tribunal would have arrived at the same decision, namely, the claimant’s loss of a chance to be awarded a discretionary point was wholly speculative given the factual matrix as set out above. His applications were hopeless from the outset as submitted by Mr Powell and borne out by evidence given by managers who would have affected how that discretion was used, and it would not have resulted in any award as the claimant has not established he had a reasonable, as distinct from a speculative, chance of suffering such loss or damage. 11 In conclusion, the tribunal found on balance of probabilities the claimant would not have been awarded points in relation to his 2011/2012 and 2012/2013 applications made under the Operational Policy for Awarding Discretionary Points to Associate Specialists and no award of damages for breach of contract is ordered. CASE MANAGEMENT ORDERS

[1]The respondent seeks its costs of the application to strike out the claimant’s case heard on 18 June 2015 and of the claims advanced by the claimant, including the claim of race discrimination. It was agreed the application for costs involved the Tribunal considering without prejudice material that should only be viewed after remedy has been dealt with. Accordingly, it was agreed a cost hearing would take place on 25 and 26 September 2017. At present, no cost application has been made by the claimant. If the claimant intends to apply for costs these case management orders will be followed, failing which the application could be adjourned or struck out.

[2]The following case management orders were agreed to assist the parties prepare for the costs hearing:2.1 The parties, if so advised, will within 14 days of promulgation of this Judgment and Reasons, serve on each other a detailed cost assessment together with a full and coherent explanation of the basis on which the cost application is being made. The claimant is ordered to send to the respondent full disclosure of his finances supported by documentary evidence i.e. employment contract, payslips, bank statements etc, relating to earnings (including investments) properties owned and savings and outgoings in order that the Tribunal can make an assessment for the purpose of considering the respondent ‘s cost application.

2.2 No later than 35 days after promulgation of the Judgment and Reasons the parties will respondent to each other’s cost application by preparing and serving a counter-schedule of costs clearly indicating those costs which can be agreed, and giving cogent reasons as to why they are in dispute plus a response to the costs application cogently setting out why costs should not/should be awarded.

2.3 The parties will confirm to the Tribunal that these case management orders have been complied with immediately upon compliance. It is in accordance with the overriding objective and in the best interests of the parties to insure all the relevant information relating to costs is obtained well before the hearing, in preparation for which an agreed bundle will be produced containing all the relevant documents and supporting evidence.

[3]The case is listed for a cost hearing before a full Tribunal on 25 and 26 September 2017 at Liverpool Employment Tribunal, Liverpool Civil & Family Courts, 3rd Floor, 35 Vernon Street, Liverpool, L2 2BX. Employment Judge Shotter 11 May 2017 16 May 2017 FOR THE SECRETARY OF THE TRIBUNALS NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 2403798/2014 Name of Mr N Vaswani v The Royal Liverpool & case(s): Broadgreen University Hospitals NHS Trust The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 16 May 2017 "the calculation day" is: 17 May 2017 "the stipulated rate of interest" is: 8% MISS K MCDONAGH For the Employment Tribunal Office

[1]This is a costs hearing following promulgation of the reserved judgment on liability promulgated 16 December 2015 and remedy promulgated 16 May 2017.

[2]The Tribunal heard oral evidence from the claimant and considered the documentation set out within 3 lever arch files and the claimant’s statement sworn under oath together with his submissions on the respondent’s cost application.

[3]With reference to the claimant’s evidence the Tribunal accepted submissions made on the part of the respondent to the effect that the claimant was less then credible when he gave valuations to the 4 properties held in his name and that of his wife. On balance, the Tribunal took the view the claimant had underestimated their valuations, particularly that of 49 Downfield Lane in Liverpool, which he valued at £450,000 to £500,000 in contrast to the Zoopla.com valuation range of £778,000 to £1,044,00. The claimant also relies on historical mortgage valuations which are a low value indication of the properties in comparison to market value given the increase in property values over the past few years. The Tribunal took the view there was sufficient equity in the claimant’s residential property alone to cover a cost award of £15,000 and there was no requirement for the Tribunal to explore how the claimant came to have received into his bank account substantial transfers of money from Luxembourg, the beneficiary of which was his brother, Manwerial Vaswani, resident in Karachi, relating to a business owned by Manwerial Vaswani and earmarked for sporadic payments to be made to his children whilst they were at university in the UK.

[4]It is uncontroversial that the claimant received a substantial monthly salary as a consultant, and if he retires on 1 November 2017 will receive a lump sum in excess of £100,000 and £28,800 per annum as of 1 November 2017 when he aims to retire. It is a matter for the claimant whether he tops up pension payments in the meantime, the payments he makes in respect of his son whilst at university and his decision to transfer 31 Discovery Road to his son, a property purchased by the claimant as an investment. The claimant may owe money to various family members; this was not evidenced in writing and the claimant’s evidence that 17 Matchwood Close was held by him for the benefit of Manwerial Vaswani was not supported by any legal document,. It is notable he claimant conceded under cross-examination it was not held by him on behalf of Manwerial Vaswani had a beneficial interest. The same point applied to 31 Discovery Road, allegedly held for the beneficial interest on behalf for the claimant’s son, Rameen Vaswani. The legal position is clear; the claimant together with his wife, is the title holder of 4 properties, and as such is entitled to payment of equity if and when those properties are sold.

[5]The respondent has made an application that the claimant is ordered to pay costs totalling £76,077.21 excluding VAT. The claimant has taken an exception to this application. The Tribunal has taken into account closing submissions of the parties and the extract from Harvey dealing with costs submitted on behalf of the respondent, for which it is grateful as the law relating to costs is clearly set out and not disputed. The Tribunal has re-read its judgments in respect of liability and remedy, which form the basis of its reasoning in respect of the issues raised by this cost application.

[6]The grounds relied upon by the respondent are set out in the letter of 30 May 2017, paraphrased as follows; that the claimant had acted vexatious, abusively, disruptively or unreasonably in:6.1 Bringing claims of age and race discrimination struck out on 16 June 2015. The Tribunal was asked to read the Skeleton Argument dated 21 April 2015, which it has done and does not intend to repeat.

6.2 Amending the claim of race discrimination was misconceived, had no reasonable prospect of success and was ultimately unsuccessful.

6.3 Rejecting the offers made from 17 September 2015 repeatedly to settle claims, including the claimant’s holiday pay claim by paying 7 days pay in respect of annual holiday.

6.4 Withdrawing the claim for unfair dismissal on 21 October 2015 some 2 weeks before the liability hearing. The respondent relies on the undisputed admissions made by the claimant concerning his dismissal for a “never event.”

6.5 Bringing the claim of unlawful deduction of wages in respect of Deanery payments dismissed on 9 December 2016, a claim which had no reasonable prospect of success.

6.6 Bringing the breach of contract claim in respect of the award for discretionary points on the basis that it was unreasonable for the claimant to claim and award, the claims being “hopeless.”

6.7 Continuing with the holiday pay claims after repeated offers to settle for 7 days holiday pay which was rejected by the claimant, the Tribunal then awarding 7 days pay in respect of annual leave.

6.8 The claimant’s rejection of offers and cost threats made throughout the litigation. The Tribunal has read all relevant correspondence, which it does not intend to repeat. It is uncontroversial the respondent put the claimant on a cost warning very early on in the litigation, and it proceeded to threaten costs regularly from thereon in, the amounts increasing substantially as the litigation proceeded to a liability hearing. The claimant was thus aware very early on the respondent intended to make this cost application. Law

[7]The relevant Employment Tribunal Regulation is 74-76. Rule 76(1)(a) provides that: “A Tribunal may make a costs order…where it considers that a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either bringing of the proceedings….or the way that the proceedings (or part) have been conducted” Rule 76(1)(a), or “any claim…had no reasonable prospects of success” – Rule 76(1)(b) of the Tribunal Rules 2013. A two stage exercise is imposed for a Tribunal in determining whether to award costs. First, the Tribunal must decide whether the paying party (and not the party who is seeking a costs order) has acted unreasonably, such that it has jurisdiction to make a costs order. If satisfied that there has been unreasonable conduct, the Tribunal is required to consider making a costs order and has discretion whether or not to do so. Fees for this purpose means fees, charges, disbursements or expenses incurred – rule 74(1) Tribunal Rules 2013. In Employment Tribunal proceedings costs do not ordinarily follow the event, unlike County Court and High Court actions.

[8]The Tribunal has been referred by the claimant to McPherson v BNP Paribas

[2004] IRLR 558

and ET Marler v Robertson

[1974] ICR 72

, particularly the reference to the “dust of battle” subsiding, a comment relevant to the claimant’s holiday pay and breach of contract claim in this case.

Conclusion

[9]Mr Green, on behalf of the claimant, made the point that this was not one of those “rare” cases where a costs order is appropriate; the Tribunal did not agree. He legitimately pointed out that the two main causes of action brought by the claimant, the holiday pay claim and breach of contract were successful. The race discrimination complaint and unlawful deduction were not, the burden of proof having shifted to the respondent in respect of the former.

[10]The causes of action in respect of race, age and unfair dismissal were dismissed upon withdrawal prior to the liability hearing taking place. It is evident from reading the party-to-party correspondence the respondent had carried out a substantial amount of work in respect of the unfair dismissal in anticipation of the liability hearing, as that complaint was withdrawn with less than 2-weeks to go. The same cannot be said for the race and age discrimination complaints as they were dismissed on 16 June 2015, well before preparation of the trial bundles and exchange of witness statements.

[11]With reference to the claimant bringing claims of age and race discrimination struck out on 16 June 2015, the Tribunal accepted it was rare for such claims to be struck out at a preliminary hearing, it must follow the claims had no reasonable prospect of success and the claimant had acted vexatious, abusively, disruptively or unreasonably in bringing those claims. In this respect the respondent had met the first part of the test for a cost order.

[12]With reference to the claimant bringing a complaint of unfair dismissal under S.98(4) of the Employment Rights Act 1996 as amended, withdrawn on 15 October 2015, the claimant maintained in written submissions he had not acted vexatious, abusively, disruptively or unreasonably in bringing this claims, and Mr Green, on his behalf, pointed out that Employment Tribunals were a cost free jurisdiction and the claimant should not be penalised for withdrawing his unfair dismissal complaint. The Tribunal accepted that withdrawal of a complaint during the litigation process did not necessarily attract a costs order. The wording of the statute is clear, and it took the view the claimant acted vexatiously, abusively, disruptively and unreasonably in the knowledge that he was dismissed for gross misconduct after an act of negligence, described as a “never event,” dismissal for which clearly fell within the band of reasonable responses open to a reasonable employer. The Skeleton Argument for the strike out application set out the fact the claimant had conceded his conduct in respect of a patient fell below the acceptable standard and contravened the professional practise identified by the GMC. The claimant, who was represented by counsel at the disciplinary hearing, accepted he was at fault.

[13]The fact the claimant withdrew the claim of unfair dismissal is not in itself unreasonable. The issue is whether he acted unreasonably in the conduct of the proceedings, and the Tribunal found this to have been the case - McPherson v BNP Paribas above. In short, the claim for unfair dismissal was totally without merit, and taking into account the claimant’s means it is just and equitable for the Tribunal to use its discretion in favour of the respondent, a public authority, who has incurred substantial costs in defending a meritless claim.

[14]With reference to the claimant amending the claim of race discrimination to include a complaint of direct discrimination under s.13 of the Equality Act 2010, at paragraph 89 of the promulgated judgment on liability the Tribunal found the claimant had proved primary facts from which inferences of unlawful discrimination could be drawn, the burden shifted to the respondent who provided an explanation untainted by race discrimination. Discrimination cases are often fact sensitive, and given the Tribunal’s finding that the respondent was in breach of contract by not convening a discretionary award points panel, it was not unreasonable for the claimant to have amended his complaint so as to include race discrimination relating to the breach of contract and proceed with that complaint to a liability hearing. It is the Tribunal’s view little extra time, if any, was caused to be spent on this complaint, given the complexity of the breach of contract claim, the amount of time spent by the Tribunal working through the at times incomprehensible contractual documentation relied upon by the parties. In short, the Tribunal did not accept the claimant’s actions in this regard were misconceived, and there was no saying until the evidence had been considered whether the race discrimination complaint had any reasonable prospect of success, despite it being ultimately unsuccessful.

[15]With reference to the claimant rejecting the offer made from 17 September 2015 repeatedly to settle the claimant’s holiday pay claim by paying 7 days pay in respect of annual holiday, the Tribunal did not consider his actions to be unreasonable. The party-to- party correspondence exchanged during this period reveals there was a great deal of uncertainty over the claimant’s holiday pay entitlement. In an email dated 3 July 2015 the claimant’s solicitor, Mr Steel, referred to the contractual terms being key, and to “several contracts in existence.” He attached copies, neither of which were dated 2008 which was a reference to a contract referred to in a hearing earlier. There exist a number of emails written in a similar vein, and the parties were unable to get to grips with the claimant’s contractual entitlement, the documents were confusing, parties muddled and it was unsurprising the claimant raised his contractual entitlement to holiday pay as an issue which required resolution. Even the claimant’s continuous employment and start of holiday year was in question – see the email sent 23 December 2015 at 16.39.

[16]It is against this background the offer to settle for 7 days holiday pay quantified at £1952.75 was made on 14 October 2015 with a time limit of 2-days before withdrawal of the offer. The respondent periodically throughout this litigation made cost threats in a similar vein, on occasions with a very short period for acceptance, in an attempt to pressurise the claimant. It does not necessarily follow that the fact the respondent sent numerous costs warning letters these should result necessarily in an order for costs. Unsurprisingly the 14 October 2015 offer was rejected, the reason being that the claimant as at 14 October 2015 was “trying to work out what holiday is owed based on an August start of the holiday year….hoping that your client would be able to state precisely what days holiday have been taken.” There was never any explanation from the respondent as to how the 7 days had been calculated, and the fact that this was the number of accrued days accepted as owed to the claimant by the Tribunal was coincidental. In its promulgated judgment the Tribunal referred to the complexity of the contractual documentation (paragraph 31) and to Kay Carter’s evidence at paragraph 14 which confirmed there was no certainty on the part of the respondent with the claimant’s holiday year which required the Tribunal to resolve this issue.

[17]It cannot be said the claimant had acted unreasonably in the bringing or conducting of proceedings in relation to the holiday pay claim which was clearly in issue and required the Tribunal to consider a complex factual matrix and incomplete contractual documentation.

[18]With reference to the claim of unlawful deduction of wages in respect of Deanery payments dismissed on 9 December 2016, the Tribunal agreed with the respondent this claim which had no reasonable prospect of success from the outset. However this changed with the respondent’s letter of 25 March 2015. The claimant was seeking payment of the shortfall of the monies passed from the Deanery to the Respondent claiming he was contractually entitled to it. The Tribunal found the contractual position was clear, and there was no agreement for the full Deanery sum to be paid to the claimant – paragraph 97. However, in the 25 March 2015 letter Hill Dickinson referred to the Deanery payments as follows: “LNE understands that Mr Vaswani was paid the sum that was passed from the Deanery to the Trust and that was all he was entitled to receive. Our position is that we did not offer or promise to give him anything in addition to the amounts given by the Deanery.” As the claimant was claiming the amounts paid by the Deanery to the respondent the 25 March 2015 letter reinforces that complaint and at very least, muddies the waters. It may be there was a misunderstanding on the part of Hill Dickinson, nevertheless the claimant is entitled to rely on representations made in correspondence with the result that as of late March 2015 the Deanery claim was no longer vexatious, abusive, disruptive or unreasonably brought and it could not be said it had no reasonable prospect of success.

[19]Finally, with reference to the breach of contract claim in respect of the award for discretionary points on the basis that it was unreasonable for the claimant to claim an award, the claims being “hopeless” the Tribunal did not find it was an unmeritorious case, the claimant having established the respondent was in breach of contract. It cannot therefore be said the claim was vexatious, abusive, disruptive or otherwise unreasonable and clearly, it had a reasonable prospect of success. The fact the claimant was not awarded damages for breach of contract does not undermine the Tribunal’s conclusion that the respondent as in breach of contract, and the “never event” should not have been used as the reason for deciding not to convene a discretionary points panel. The claimant having been invited to apply for discretionary points had every expectation that his application should have been dealt with properly, and it was not.

[20]Paragraph 59 of the promulgated judgment encapsulates the Tribunal’s findings. The respondent seeks to rely on the Tribunal’s finding at paragraph 10 that the claimant’s application was hopeless from the outset and borne out by the evidence from managers as to how the panel’s discretion would not have resulted in an award. In order to arrive at that judgment the Tribunal considered a substantial amount of evidence, including the criteria for awarding discretionary points. It is only when the battle dust had settled, and all the relevant documentation taken into account, a judgment could be reached as to whether the claimant was entitled to damages flowing from the respondent’s breach of contract. It was not an easy matter to decide, and cannot be said that the claimant acted unreasonable in pursuing his successful breach of contract claim to a remedy hearing. The threshold is very high when the test was whether the party had acted frivolously, and an award of costs can only be justified if the claimant knew his case lacked substance or was on the face of it so manifestly misconceived that it could have no reasonable prospects at all - ET Marler v Robertson cited above.

[21]In considering whether or not to use its discretion and make a costs order, the Tribunal took into account its findings above, and concluded that in respect of the race and age discrimination and unlawful discrimination claims the claimant’s conduct was unreasonable and this had an effect of increasing the respondent’s costs by a broad brush figure of £15,000. In assessing this figure the Tribunal considered the cost warning letters that set out a figure for costs at various intervals. For example, as at 28 October 2015 the costs were £25,000. By 16 June 2015 the race and age discriminating claims had been struck out and from that date no costs were incurred in respect of those complaints. The unfair dismissal remained and it is clear from the correspondence that prior to the withdrawal of that complaint a substantial amount of work was carried out in preparation for trial, preparing bundles and witness statements which were exchanged around the end of October, the unfair dismissal complaint having been withdrawn on 22 October 2015.

[22]In the “without prejudice save as to costs” letter of 13 January 2016 the costs to trial were estimated at £40,000 and a payment of £20,000 from the claimant was sought. The Tribunal took the view that given the complexity of the contractual and holiday dispute it was not unreasonable for the claimant to refuse the offer and not proceed to remedy. He had succeeded in parts of his claim and was entitled to put forward argument as to why he should recover damages for the respondent’s breach of contract. Following remedy it is notable the claimant recovered a higher figure in respect of the holiday pay in the sum of £2487.41 that that offered by the respondent earlier.

[23]By December 2016 the costs were £51,679, 28 April 2014 £68,291 and 25 May 2017 £76,077.21.

[24]In arriving at the figure of £15,000 the Tribunal has attempted to take a broad brush view of the costs and allocate this sum to the additional work carried out in by the respondent as a result of the claimant’s unreasonable conduct set out above. It accepted the claimant’s submission that the purpose of the award is compensatory and not punitive; Lodwick v London Borough of Southward

[2004] ICR 884

and the judgment of Underhill J in Barnsley Metropolitan borough Council v Yerrakalva

[2011] EWCA Civ 1255

[25]In conclusion, the Tribunal recognises it is rare for costs orders to be made in this jurisdiction and that it has a wide discretion to award costs where it considers there has been unreasonable conduct at any stage during the proceedings, and where a claim had no reasonable prospect of success from its inception. The Tribunal found the claimant had acted unreasonably and three of his claims had no reasonable prospect of success. Accordingly, the claimant is ordered to pay to the respondent a contribution towards its legal costs in the sum of £15,000. Employment Judge Shotter 28.09.17