Mr F Qureshi v County Durham and Darlington NHS Foundation Trust: 2501333/2024
EMPLOYMENT TRIBUNALS
Case No 2501333/2024
Between
Mr F QureshiClaimantCounty Durham & Darlington NHS Foundation TrustRespondent
Before
Employment Judge MossMr Boumphrey (instructed by Counsel) for respondentDate 30 September 2025
JUDGMENT
[1]Judgment having been entered that the claimant was unfairly dismissed by the respondent, the respondent shall pay to the claimant a total of £85224.93, calculated as follows: Basic award 3 weeks x statutory cap on gross weekly pay of £643 1929.00 Compensatory award Loss of earnings – 52 weeks x net weekly pay of 70080.92 £1,347.71 Loss of enhanced pay – 52 weeks x £28.32 1472.64 Loss of statutory rights 500 Loss of rolled up holiday pay on net basic pay at 12.07% 8458.70 Expenses - 5756 travel for work (2734) accommodation (2602) appraisal fee (420) Pension loss (employer’s contributions) 52 weeks x £474 24648 Less mitigation of loss – (49710.30) Earnings (49068.24) Job Seekers Allowance (642.06) Total 61205.96 Grossing up of taxable (net) awards above £30,000 The claimant’s earnings for the current year will exhaust his personal allowance and the entire 20% basic rate band. The grossing up calculation is therefore at a single marginal rate of 40%. (£33134.96/60 x 100 = £55224.93). Tax element to be added to the compensatory award 22,089.97 Final compensatory award after grossing up 83295.93 Recoupment – the prescribed element is £36057.96 the prescribed period is 22 January 2024 – 02 September 2025 total award is £85224.93 balance is £49166.97
REASONS
[1]The claimant commenced his employment as a Doctor with the respondent on 4th January 2021. Following his return to work from a period of sickness, the claimant was informed on 22 January 2024 that he could book ‘ad hoc’ bank work rather than continue to undertake work consistently as he had done since commencing in January 2021. He resigned verbally with immediate effect, followed up in writing the following day on 23 January 2024. Claims and issues[2]The claimant brought a claim for unfair dismissal, which was originally contested by the respondent on the basis he was not considered to be an employee. However, the fact the claimant was an employee and that he was unfairly dismissed was conceded by the respondent in these proceedings by email on 27 March 2025. The purpose of this hearing was to consider the issue of compensation. Should it not have been formally entered previously, I enter judgment in the claimant’s favour for unfair dismissal.[3]Mr Boumphrey indicated the principal issue for me to determine was the question of whether the claimant had taken reasonable steps to mitigate his losses. Other areas of dispute concerned whether or not an ACAS uplift could be applied in the circumstances of the case, whether it was reasonable for employer pension contributions to be claimed when the claimant had opted out of his current employer’s pension scheme and whether holiday pay ought to be included in the award.
The hearing
[4]I had an electronic bundle comprised of 686 pages and the witness statements of the claimant, and his witnesses, Dr Richard Fitzgerald and Dr Valeriu Vinte. I heard oral evidence from all three. The respondent did not call any witnesses. Both parties made closing submissions at the end of the hearing. Key facts of relevance to remedy[5]During his employment with the respondent, the claimant consistently worked Monday to Friday 9am – 5 pm, also working additional hours on a regular basis. His shifts were automatically allocated to him by rota coordinators.[6]Having raised concerns about the fact he was not receiving the same benefits and protections as other employees, the claimant raised a grievance on 18 May 2023.[7]A Stage 1 grievance meeting was held on 20 June 2023, the outcome of which was communicated to the claimant on 1 August 2023. The claimant attended a meeting on 30 August 2023 at which discussions took place regarding proposed changes to the claimant’s terms and conditions that would have resulted in a reduction in his remuneration. The claimant did not agree to the changes, though made it clear he would consider a role in radiology if that was on offer.[8]A Stage 2 grievance meeting was held on 28 September 2023, the outcome of which was not communicated to the claimant until 03 May 2024.[9]The claimant commenced a period of sickness absence on 20 October 2023, returning to work on 22 January 2024. On that date, Dr Deepak Kejariwal (Care Group Director) informed the claimant that he was only to take shifts via the Dagny mobile application moving forward. The claimant resigned with immediate effect due to the guarantee of regular work no longer being available to him.[10]Had this change not occurred, the claimant would have continued in the role, earning the same rate of pay as previously. His basic hours were 40 hours per week, paid at a rate of £50 per hour gross (£104,000 per annum). Additional hours were worked in the evenings and at weekends on a regular basis. The claimant received holiday pay in addition to his hourly rate of pay.[11]The claimant raised a further grievance on 08 May 2024 regarding unfair dismissal. An outcome has never been received.[12]On 09 May 2024 the claimant appealed against the outcome of the Stage 2 grievance. The appeal was heard on 21 August 2024, with the outcome of the appeal being provided on 06 September 2024.[13]Following his resignation the claimant claimed Jobseeker’s Allowance from 29 January 2024 until 20 March 2024.[14]He started work, via an agency, at Queen Elizabeth Hospital King’s Lynn (QEHKL) on 21 March 2024. Due to the distance from home, which was 215 miles, the claimant stayed in rented accommodation during the week at King’s Lynn, travelling home on a weekend. The claimant’s grandmother was critically unwell in hospital in Newcastle at the time. His evidence was that he did not feel able to consider undertaking additional bank work, being physically exhausted from travelling 10 hours each week, struggling and barely able to cope in the job with the added worry of his grandmother being under palliative care in the North East.[15]The only other opportunity found through the agency around this time was an even greater distance away on The Isle of Wight. The claimant’s employment with QEHKL ended on 16 August 2024. He was not paid holiday pay and was not enrolled into any pension scheme during this period of employment. He has challenged the lack of holiday pay and awaits an outcome.[16]While working for the respondent, and subsequently in conversation with Dr Fitzgerald, somewhat of an expert in the field, the claimant had expressed a particular interest in radiology, though had applied for various roles biannually as a way of keeping his options open and obtaining interview practice. Each year he had been successful at interview and had been offered positions but had declined them as he did not have the means to take a reduction in income to go into training.[17]During his time at QEHKL, the claimant continued to look for more permanent work. He accepted a position on a 5-year training programme in radiology working for various NHS Trusts, the lead employer being Northumbria Healthcare NHS Foundation Trust (NHFT). This employment commenced on 02 September 2024. Initial earnings were £43,923 per annum gross, increasing to £49,909 from October 2024. There is no overtime or ability to work additional hours in the role. Holiday pay is included in his annual salary. The claimant was initially enrolled in the employer’s pension scheme but opted out due to being on a significantly reduced income. Relevant law Mitigation of loss
Relevant law
[18]In Cooper Contracting Ltd v Lindsey 2016 ICR D3, EAT, Mr Justice Langstaff set out the following principles regarding the approach to take for deductions for a failure to mitigate loss:(i) the burden of proof regarding a failure to mitigate is on the respondent. A claimant does not have to prove that he or she has mitigated the loss;(ii) if evidence as to mitigation is not put before the Tribunal by the respondent, it has no obligation to look for that evidence or draw inferences. This is how the burden of proof works in this context: responsibility for providing the relevant information belongs to the respondent;(iii) the respondent must prove that the claimant has acted unreasonably. The latter does not have to show that what he or she did was reasonable — see Ministry of Defence v Mutton 1996 ICR 590, EAT. What is reasonable or unreasonable in this regard is a question of fact, to be determined after taking into account the wishes of the claimant as one of the relevant circumstances, although it remains the tribunal’s own assessment of reasonableness — not the claimant’s — that counts;(iv) the tribunal should not apply a standard to the claimant that is too demanding. He or she should not be put on trial as if the losses were his or her fault, given that the central cause of those losses was the act of the respondent in unfairly dismissing the claimant;(v) the relevant test can be summarised by saying that it is for the respondent to demonstrate that the claimant has acted unreasonably in failing to mitigate;(vi) in a case where it might be reasonable for a claimant to have taken a better paying job, this fact does not necessarily satisfy the test: it is however important evidence that might assist the tribunal to conclude that the claimant has acted unreasonably.[19]According to Johnson v Hobart Manufacturing Co Ltd EAT 210/89, whether an employee has done enough to fulfil the duty to mitigate depends on the circumstances of each case and is to be judged subjectively. However, according to Beijing Ton Ren Tang (UK) Ltd v Wang EAT 0024/09 this does not mean that the tribunal must accept the subjective view of the claimant. While this certainly has to be taken into account, the tribunal’s task is to consider all the circumstances in deciding whether the claimant has acted unreasonably in failing to find fresh employment or some alternative means of mitigating his or her losses.[20]Wilding v British Telecommunications plc 2002 ICR 1079, CA provides that for a respondent to discharge that burden of proof, it is not enough for the respondent to show that there were other reasonable steps that the claimant could have taken but did not take. It must show that the claimant acted unreasonably in not taking such steps: there is usually more than one reasonable course of action open to the employee. ACAS uplift[21]Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides – If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a)the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b)the employer has failed to comply with that Code in relation to that matter, and (c)that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.[22]For the Code to apply in an unfair dismissal case, while it is not restricted solely to misconduct or poor performance cases, “culpable conduct” on the part of the claimant is required - Holmes v Qinetiq Ltd UKEAT/0206/15/BA. Conclusions Mitigation of loss
Conclusions
[23]The respondent has not satisfied me that the claimant did not take reasonable steps to mitigate his losses. Essentially, its argument is that the claimant was intent upon a career in radiology and chose to train in that speciality on a reduced income rather than searching for jobs on a comparable income to that he was earning with the respondent.[24]When suddenly faced with a dramatic reduction in his income he claimed Job Seekers Allowance for a period just short of 2 months and, as he said in evidence, entitlement to that requires you to demonstrate to the DWP that you are looking for work. Through an agency he managed to secure employment working at King’s Lynn, the only alternative being on the Isle of Wight. This necessitated the claimant working away from family and friends at a difficult time when his grandmother was receiving palliative care – something I accept he found stressful and would not have chosen to do if similar or better opportunities were available in the local area. I found his evidence compelling that it was not an option for him to take on additional bank work at that time, being physically exhausted and barely able to cope. When an opportunity arose for him to take up alternative work in the North East and in an area of interest to him (radiology) he did not act unreasonably in accepting it. He can not be criticised for trying to secure a long term career in a specialist field as opposed to remaining in general medicine following his dismissal. I do not find that it was a pre-determined course he was fixed on prior to termination of his employment. I found the claimant to be an entirely credible witness and accept he would have remained in his role with the respondent had it not been for the loss of the guarantee of the regular work he had become accustomed to undertaking and receiving remuneration for. While he had expressed an interest in radiology, it was simply one of the career paths he had been exploring since commencing employment with the respondent. He had been applying for training posts on a biannual basis with no intention of taking up the roles because he could not afford to do so. He was successful in his applications but declined the job offers, instead treating the interviews as an opportunity to gain interview experience and exposure, as professionals so often do. The claimant was prepared to travel for work and did so until a more local opportunity arose and I consider he acted reasonably throughout in the efforts he made to mitigate his losses. He remains on a much reduced income and has not sought to claim future losses, limiting his claim for lost earnings to a 52 week period.[25]I would add for completeness, the claimant was not prepared to waive privilege to be asked about discussions had with his legal representatives concerning the evidence he would be expected to gather to demonstrate the steps he had taken to mitigate his losses. I did not draw any adverse inference from that. There are many reasons why somebody would not agree to disclosing the details of private discussions with their legal representative and, given my view of the credibility of the claimant’s evidence, it would not add anything by way of assistance in resolving the issues for me to hold his silence against him. ACAS uplift[26]In requesting an ACAS uplift of 25% within his particulars of claim, the claimant said it was “due to the unreasonable failure of CDDFT to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures within a timely manner. On 28 April 2023 I submitted my grievance to Tracy Atkinson (HR Manager at CDDFT) and over a year later on 3 May 2024 I received the stage 2 outcome of the grievance procedure”.[27]The respondent acknowledges the grievance was not dealt with in a timely manner. The grievance related to the claimant believing he should enjoy the same benefits and protections as other employees rather than being treated differently as a bank worker. At this hearing today, the claimant also advanced in support of an uplift to any compensation award, that he had submitted the separate grievance on 8 May 2024 which the respondent had not dealt with at all. He also argued the lack of consultation about changes to terms and conditions of employment without warning, leading to his dismissal, should give rise to an uplift.[28]I raised with the parties at the hearing there appeared to be a disconnect between the issues complained about during the initial grievance and the reason for the claimant’s resignation. Ms Crawshay- Williams submitted the grievance led to the respondent refusing the claimant extra shifts in response to which he resigned.[29]I do not find the claimant resigned in connection with the issues he raised in his grievance. His resignation came about as a result of a separate, discrete issue involving the removal by the respondent of the guarantee of regular work from the claimant, a pattern of work he had been accustomed to since January 2021.[30]As far as not consulting him about a change to his terms and conditions is concerned, whether or not the tribunal’s discretionary power to award an uplift for failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures arises, depends upon whether the claim to which the proceedings relate concerns a matter to which the Code applies and then upon whether the employer has failed to comply with the Code in relation to that matter. The matter the claim in these proceedings is concerned with is the claimant’s unfair dismissal. In an unfair dismissal case, there needs to have been “culpable conduct” on the part of the claimant for the Code to apply - Holmes v Qinetiq Ltd UKEAT/0206/15/BA. There was no suggestion of the claimant’s conduct or performance in this case giving rise to a disciplinary situation or involving culpable conduct. If anything, the loss of work could be said to be analogous to a redundancy situation and the Code expressly does not apply in such circumstances. I have concluded the Code does not apply and the respondent cannot therefore be said to have unreasonably failed to comply with it. The tribunal’s discretion to increase the award is not exercisable in the circumstances. Employer pension contributions[31]On the loss of his job with the respondent, the claimant lost the pension provision that went with it. He claims the value of the contributions the respondent would have made if he had not been dismissed. The claimant has a new job with pension rights if he chooses to access them. While he initially enrolled in the scheme with his new employer, he quickly opted out for affordability reasons. The loss of benefits, in terms of employer pension contributions, has undoubtedly been sustained by the claimant in direct consequence of the dismissal, and is attributable to the actions of the respondent. He is on a much reduced income and the level of his pension benefits would be impacted by that had he remained in the new scheme instead of opting out. I have concluded it is reasonable for the claimant to seek to be restored to the position he was in prior to dismissal in terms of pension provision, given his claim is restricted to 52 weeks, aligned with his claim for loss of earnings. Holiday pay[32]The way the claimant had conducted separate proceedings for unlawful deductions from wages and/or compensation for annual leave led Judge Pitt, following a hearing on 7-8 April 2025, to strike out his claims as an abuse of the court process for the whole of the period of the claimant’s employment with the respondent. It was accepted by Mr Boumphrey that does not preclude me from considering the issue as part of compensation for unfair dismissal, though he submitted it would give me insight into the findings made in relation to the claimant’s approach to proceedings to have regard to Judge Pitt’s judgment. The respondent has not provided a counter schedule of loss or called witnesses to provide evidence in respect of these proceedings and, while the claimant may appear to be succeeding in his holiday pay claim by the back door, the respondent ought to have actively defended its position by providing evidence of the claimant not having sustained the loss he is claiming to have suffered in connection with his unfair dismissal. It has not done so, for whatever reason, and I can find no reason to deny awarding the claimant the amount he seeks as ‘rolled over’ holiday pay.