Mr Yesufu v Essex Partnership University NHS Foundation Trust: 3200511/2024
EMPLOYMENT TRIBUNALS
Case No 3200511/2024
Between
Mr YesufuClaimantEssex Partnership University NHS Foundation TrustRespondent
Before
Employment Judge ImanDate 7 October 2024
JUDGMENT
The complaint of unlawful deduction of wages is not well founded and is dismissed. JUDGMENT ON APPLICATION FOR RECONSIDERATION In exercise of powers contained in Rule 72 of the Employment Tribunals Rules of Procedure 2013 (“Rules”), the respondent’s application of 07 October 2024 for reconsideration of the judgment given on the 07 October 2024 and issued to the parties on the 11 October 2024, is refused because there is no reasonable prospect of the original decision being varied or revoked.
REASONS
Introduction
[1]The claimant failed in his complaint of unlawful deduction from wages. Principles of Reconsideration[2]When approaching any application, and during the course of proceedings, the tribunal must give effect to the overriding objective found at Rule 2 Employment Tribunals Rules of Procedure 2013. This says: “2 - The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings; 1 of 4(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[3]The power to confirm, vary or revoke a judgment is found at Rule 70. That provides that a judgment can be reconsidered: “if it is in the interests of justice to do so”. Rule 71 of the Rules requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. This application for reconsideration is made in time.[4]Rule 72(1) of the Rules provides: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …”[5]Where an Employment Judge refuses an application following the application of Rule 72(1), then it is not necessary to hear the application at a hearing. Rule 72(3) provides that the application for reconsideration should be considered in the first instance, where practicable, by the same Employment Judge who made the original decision. I am the judge who made the decision in respect of which the respondent makes this application for reconsideration.[6]The interest of justice in this case should be measured as a balance between both parties; both the applicant and the respondent to a reconsideration application have interests which must be balanced against the interests of justice (Outasight VB Limited v Brown [2014] UKEAT/0253/14).[7]In Brown, Her Honour Judge Eady QC said that the general public also have an interest in such cases because there should be an expectation of the finality of litigation. This was an expectation outlined by Mr Justice Phillips in Flint v Eastern Electricity Board [1975] ICR936, who said: “it is very much in the interests of the general public that proceedings of this kind should be as final as possible”. He also said it was unjust to give the loser in litigation a: “second bite of the cherry” where, having lost and learnt of the reasons for losing, a litigant seeks to re-argue points and bring additional evidence or information which would overcome the reasons given for the loss. 2 of 4[8]Consequently, the provision of evidence said to be relevant after the conclusion of the hearing will rarely serve to alter or vary the judgment given unless the party seeking to introduce the evidence can show the following (Ladd v Marshall [1954] EWCA Civ. 1): 8.1. the evidence could not have been obtained with reasonable diligence for use at the trial; 8.2. the evidence would probably have an important influence on the result of the case; and 8.3. the evidence must be apparently credible. Grounds and reasons of reconsideration application[9]The application for reconsideration is made on the basis, in summary that the claimant: “was suspended from my adult nursing university programme. This suspension has significant financial implications, as I have accrued a student loan of £18,000, which I am still obligated to repay despite being unable to complete my studies at this time. Secondly, due to the circumstances surrounding my employment situation, I have been forced to retrain as a financial planner. I was approved by the FCA to this new position on Friday, October 4, 2024.(screenshot below) The retraining process for this career change has incurred a substantial cost of £5,000.” Decision on the reconsideration application[10]I note that the application for me to reconsider my decision was submitted prior to the claimant receiving full written reasons.[11]At the hearing, the matter in respect of the respondent informing the Nursing and Midwifery Council was raised in evidence and further, the claimant explained that he had retrained as a financial planner.[12]I do not consider that the financial difficulties in respect of loans and retraining are relevant to my consideration as to whether wages were properly payable for Bank shifts that the claimant would have been entitled to claim and/or work had he not been precluded. It is not the purpose of reconsideration to allow a party to dispute a determination that a party disagrees with. It is a fundamental requirement of litigation that there is certainty and finality. If conclusions made are disputed with regard to whether a correct interpretation of the law was made, they are matters for an appeal which the respondent is able to make to the Employment Appeal Tribunal. 3 of 4[13]In view of the above, the determination of this application is that the original judgment is confirmed.[1]Mr Yesufu brings this claim in respect of unlawful deduction of wages. Mr Yesufu was employed as a Health Care assistant under a Bank Scheme as Bank Staff since the 20 July 2020. He was engaged on 3 month rota basis working he states on an average for 4 to 5 days a week generating a net income of £500-£600 weekly. On the 12 August 2020 he was informed that he was being precluded from work due to safeguarding concerns. Mr Yesufu attended a fact finding meeting on or around the 30 January 2023 in which he was questioned about his assisting a female service user in his car.[2]On the 04 July 2023 he was advised that the police would no longer be investigating the matter. On the 19 December 2023 he was advised that the matter had been resolved. Mr Yesufu seeks compensation for his period of suspension stating that no investigation was commenced and that also he was vindicated. He explains that the suspension was unreasonable given that he did not undergo any investigation and that the Respondent did not conduct any safeguarding investigation. The claimant states that as he was not being paid his salary this caused him financial distress and stress and therefore, he should now be paid the money that is owed to him.[3]The matters for determination by the Tribunal were as follows: a) Was the Claimant subject to preclusion or suspension? b) Is the Claimant entitled to be paid for shifts that he would have booked for the preclusion? Namely should the Claimant be paid for the period 06 November 2022- 19 December 2023? c) Should the Claimant be paid for the period 19 December to date? d) Did an investigation commence with the Respondent? e) Did the Respondent unreasonably delay and therefore either full or part of salary should be paid to the Respondent? f) Was the Claimant given a reasonable and timely opportunity to respond to the allegations and provide his statement? g) Did the Respondent breached the ACAS Code of Practice by failing to disclose to the Claimant what he was being investigated for? It took the Respondent 13 months to disclose the nature of the safeguarding issue. h) Did the Respondent breach the term of trust and confidence, an implied term that the Respondent would not, without reasonable cause, conduct itself in a manner likely to destroy the relationship between both parties?
Legal Principles
[4]The general prohibition on deductions is set out in section 13(1) of the Employment Rights Act 1996 ("the 1996 Act") which states that: "An employer shall not make a deduction from wages of a worker employed by him.". The Tribunal must decide on the ordinary principles of common law and contract whether this was the amount of wages properly payable to the Claimant.[5]Section 27(1) defines wages as: "any sums payable to the worker in connection with his employment”.
Evidence
[6]The Tribunal heard oral evidence from Mr Yesufu and also heard from Ms Prentice who is the Associate Director for employee relations at the hospital. A position that she has held since November 2021. The Tribunal did not hear any other evidence.[7]The Tribunal considered Miss Prentice to be a balanced and fair witness. I considered that Mr Yesufu’s evidence was changeable and unreliable at times therefore where there is a conflict I have preferred the evidence of Miss Prentice.
Findings of fact
[8]Having considered the oral and documentary evidence, particularly the terms of the contract carefully, the Tribunal made the following findings of fact that; The Respondent operates a staff Bank.[10]The claimant was a temporary bank staff and therefore provides ad hoc work for the Trust.[11]The claimant mainly worked nights as bank health care worker.[12]The claimant was not restricted from his contract from taking work up from elsewhere.[13]The claimant is not an employee of the Trust. He is bank worker as per the terms of his contract and his oral evidence in respect of the flexibility this gave him whilst attending university.[14]The contractual terms stipulated that the Trust has no obligation to offer work and the employee has no obligation to accept it and therefore each period of work offered is termed an assignment and is a self-contained area of work. In respect of the continuity of his employment, it only related to each period of assignment.[15]Offers of work are at the Trust’s discretion and that the claimant was not entitled to future work simply because he was previously offered it.[16]The claimant had worked at different wards whilst offering bank work.[17]The Working Time Regulations apply as well as the Trust’s managing temporary workers conducts and complaints procedure. As part of the procedure, the claimant will be paid for any pre-booked bank shifts.[18]The allegations made against the claimant were of a serious nature in respect of meeting a vulnerable service user several times initiating sexual contact.[19]On 11 August 2022, the referral was made by the Trust to the safeguarding LADO.[20]On 12 August 2022, the claimant was precluded from being offered work. This was communicated in a letter on 15 August 2022.[21]The Claimant sent an email to the service manager on 21 May 2023, requesting an update on the safeguarding concern investigation.[22]On 30 May 2023, the Respondent, informed the Claimant’s university that an investigation was ongoing, where he was studying to qualify as a nurse. Tribunal Conclusions[23]Mr Yesufu’s claims are centred on the breach of procedures. He makes five central assertions namely:23.1 that preclusion occurred before any investigation,23.2 that he was not given details of the allegations,23.3 that there was an impromptu fact-finding meeting,23.4 that there was a substantial delay of 16 months, and23.5 that he was told the matter was resolved after 16 months. He stresses that he did not undergo any investigation. Was the Claimant subject to preclusion or suspension?[24]I find that the Claimant was precluded, and the Respondent’s policy states that this is to be exercised as a last resort. I consider it was appropriate to preclude the Claimant due to the serious nature of the allegations raised in accordance with Managing Temporary Worker Conduct and Complaints Procedure. The Claimant was advised orally on the 12 August 2022 and in a letter dated 15 August 2022 that he was being precluded.[25]The Claimant states that the condition of refraining from work and be available during contractual hours, meant a suspension had taken place. I reject that argument.[26]The term in the letter of preclusion states that you must remain available for work and refrain from working for anyone else during their contracted hours with the organisation [emphasis added].[27]At no point was this term clarified or queried by the Claimant with the Trust and nor was Mr Yesufu entitled to regular contracted hours as a bank worker. The letter to the Claimant is clear that he is precluded from work and I am clear he understood what that meant in respect of his bank work with the Trust. In his evidence, he went on to explain that he did not work for anyone else during this period as he was unable to work for other NHS Trusts due to his suspension with the Nursing and Midwifery Council. I therefore do not find his evidence reliable on this point that he understood that this term meant that he could not work for anyone else during his preclusion. Did an investigation commence with the Respondent?[28]As stated above, Mr Yesufu’s claims are centred on breach of procedures and that the process was not followed. Namely, that a preclusion can only occur after a formal process has been instigated and that this should be concluded in a reasonable time. Ten days is the time frame given in the policy documentation and therefore 16 months is unreasonable.[29]The Claimant relies on the document Managing Temporary Worker Conduct and Complaints Procedure (pages 61 – 64) and states that as the requirement of that procedure were not followed and due to the failure to follow the process, sums become properly payable to him.[30]Paragraph 4.6 of that procedure states: ‘if the formal process is required to be instigated….the bank worker will be informed in writing of any process under this procedure being instigated against them’. It then goes on to say that ‘The letter will set out the following: the nature of the concerns being raised, any correspondence from witnesses or documentation being considered, their right to state a case in relation to the concerns, the date, time and venue of any outcome meeting, their right to be represented at the outcome hearing by an accredited trade union representative or trust worker, their right to call any witnesses and that the outcome could result in removal of engagement on staff bank or disciplinary action.’[31]I reject that an investigatory process was not commenced, and that the Claimant was not precluded. The allegations were serious in nature and related to the Claimant inviting a vulnerable service user into his car and back to his house and clearly related to safeguarding. Miss Prentice explains that the actions taken by the Trust were standard practice. I accept this and her evidence regarding this.[32]I have noted the letter dated the 15 August 2022 to Mr Yesufu from the Trust in which it is expressly explained that a formal investigation will take place and that the nature of the allegations could not be fully set out due to the fact that the police may be contacting the Respondent.[33]I accept that the details of the allegations were not disclosed at the outset to the claimant to avoid prejudicing a police investigation which was entirely proper in the circumstances and I reject that this was a sham preclusion.[34]Miss Prentice explained that once the police investigation is completed and the matter goes forward to an internal investigation, full details would then be provided, Mr Mannan states that there is no document in the bundle which sets out the allegations. However, the absence of document does not mean that that a formal investigatory process has not commenced as the Claimant seeks to propose. Miss Prentice was clear in her evidence that the processes run parallel and the Trust, takes the appropriate steps, such as not commencing their investigation to avoid prejudicing the investigation.[35]I found Miss Prentice’s evidence consistent in that only after the police investigation had been concluded that the formal investigation would commence. She maintained under questioning that both processes were concurrent. I further accept that 07 February 2023 letter does cause some confusion which states in reference to the 30 January meeting that this is not an investigation but a fact finding meeting. However, I have preferred Miss Prentice’s evidence that it was clear that the investigations ran concurrent to the police investigation. Did the Respondent unreasonably delay and therefore either full or part of salary should be paid to the Claimant ?[36]The evidence clearly demonstrates that between August and October 2022, the Trust made attempts to contact the service user in order to understand the ongoing position in respect of the police investigation. Miss Prentice explained in her evidence that the service user was moving between Trusts and therefore it was difficult to make contact.[37]The Crime Reference number was obtained in December 2022 and an update was requested from the police in December by the Trust.[38]As the police had not responded, the Trust therefore decided to proceed in January 2023 with its own investigation to avoid any further delay. The fact finding meeting then took place on the 30 January 2023. I note that the Claimant was invited to this meeting on the 05 January 2023. Given the seriousness of the allegation, the preclusion remained in place following that meeting. The Claimant emailed his version of events on 29 June 2023 and further on the 04 July 2023, the police confirmed that they had closed their investigation. Efforts were then made to contact the service user which were unsuccessful, and, on the 19 December 2023, it was communicated that the preclusion no longer applied. The Trust noted that the Respondent confirmed that he had given a vulnerable user a lift in his car and his contact details and therefore though this could have been construed as misconduct that the Trust chose to deal with the matter through reflection and Training.[39]Further, the Safeguarding process document clearly states that time frames may vary due to extenuation circumstances such as police involvement. I therefore consider that the Trust acted reasonably in all the circumstances and that any delay was not deliberate. Was the Claimant given a reasonable and timely opportunity to respond to the allegations and provide his statement?[40]I find that the Claimant was given a reasonable opportunity to respond to the allegations. There was a fact-finding meeting on 30 January 2023 and further, the Claimant submitted his version of what he stated occurred in writing on the 29 June 2023. Is the Claimant entitled to be paid for shifts that he would have booked for the preclusion? Namely, should the Claimant be paid for the period 06 November 2022-19 December 2023?[41]I consider that the terms of engagement are very clear. They relate to shortterm temporary cover. Continuous engagement only relates to the period of assignment and ends with the completion of the continuous assignments. Therefore, the Claimant is paid only for the hours worked.[42]As a bank worker, there were no normal working hours and the claimant was under no obligation to accept work offered by the Trust. The Trust paid the Claimant for the shifts that had already been booked as per the terms. However, I do not find that the Claimant was entitled to be paid for shifts that he would have booked for the preclusion. Mr Yesufu in his own evidence explained the flexibility he had in booking his shifts. I do not consider therefore that any payments are owed to Mr Yesufu for the period stated.[43]The Respondent was entitled to preclude the Claimant in line with its own policies. As there was an ongoing police investigation, the Respondent was unable to begin its internal investigation until the position with the police investigation was determined. I find that the Respondent acted promptly in the circumstances of the case and conducted its own investigation once able to do so. It was reasonable for the Claimant not to be offered Bank work during this period, given the serious nature of the allegations against him. Should the Claimant be paid for the period 19 December 2023 to date?[44]The Claimant was able to return to work following the removal of his preclusion on 20 December 2023, but he failed to undertake mandatory training to allow him to book on to bank shifts; therefore, his failure to return to work was due to his own actions. During his oral evidence, Mr Yesufu explained that he had retrained as a financial planner. Therefore, I do not consider any payments are owed to Mr Yesufu for the period stated. Did the Respondent breach the ACAS Code of Practice by failing to disclose to the Claimant what he was being investigated for?[45]For the reasons set out above, I do not consider that it was inappropriate for the Respondent not to set out the allegations at the outset. They were seeking not to prejudice a police investigation. Though there is no letter setting out what the nature of the allegations were from the Trust to the Claimant, it is clear to me that he had an understanding of what they were at the latest by the 29 June 2023, as he fully set out his position in a document to the Trust. Therefore, I do not consider that there is sufficient evidence before me to persuade me that there was breach of the ACAS code or that he was unable to respond to the allegations in full. Did the Respondent breach the term of trust and confidence, an implied term that the Respondent would not, without reasonable cause, conduct itself in a manner likely to destroy the relationship between both parties?[46]For the reasons set out above in the appropriateness of the Respondent actions, I do not consider this part of the claim is well-founded.[47]The parties referred me to the following authorities. The Claimant, through his Counsel, made it clear that they were not relying on an implied term in the contract.[48]The case of North West Anglia NHS Foundation Trust v Gregg [2019] ICR 1279 did not apply to circumstances of this case, as it concerned the position of a suspended permanent employee, whom the employer was obliged by the contract to continue to pay, so long as he fell to be treated as ready, willing and able to work. The Claimant’s contract, by contrast, only expressly obliges the Respondent to pay him in respect of a period during which work had been specifically offered and accepted.[49]The Claimant accepted that this case is binding authority but argued that it does not apply in this case as an implied term was not being argued. The Claimant relies on the case of Rice Shack Ltd v Obi (UKEAT/0240/17) stating that a sum becomes properly payable. I do not consider that there is an express or implied contractual term conferring a right for the Claimant to be paid outside of shifts which have been booked. I agree with the Respondent’s analysis of Rice Shack – that I am not persuaded that it applies to this case. The wider question in Rice Shack was as set out in Agbeze v Barnet, Enfield and Haringey Mental Health NHS Trust (UKEAT/0232/20) namely (following the concession that the right to be paid during suspension existed) whether the claimant had “lost that right when she began working for a third party”. It was held that the claimant did not lose that right by working for a third party because she was not in breach of contract by doing so. These are entirely different circumstances to what is before me.[50]The Claimant has not persuaded me how any legal entitlement to “properly payable” sums has arisen in this case and therefore, the claim is not wellfounded and is dismissed.
Findings of fact
[1]The Respondent applied for costs on the basis that the claim had no reasonable prospect of success. Costs were sought from 1 July 2024 up to and including the substantive hearing on 22 July 2024. The Respondent made an oral application for costs at the end of the final hearing which was followed by a formal written submissions and a costs bundle in respect of the application for costs which were sent to the Tribunal on the 07 and 28 October 2025 which I have seen. I have also had sight of the Claimant’s written submissions in response to the application for costs and their schedule of costs incurred.[2]The power to award costs is set out at Rule 76 of the Employment Tribunal Rules of Procedure 2013. Under rule 76(1) a tribunal may make a costs order, and shall consider whether to do so, where it considers that: “(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success."[3]Rules 74 to 78 provide for a two-stage test to be applied by a tribunal considering costs applications under Rule 76. The first stage is for the tribunal to consider whether the ground or grounds for costs put forward by the party making the application are made out. If they are, the second stage is for the tribunal to consider whether to exercise its discretion to make an award of costs, and if so, for how much.[4]When assessing whether the 'no reasonable prospect of success' ground in rule 76(1)(b) is made out, the test is not whether a party had a genuine belief in the prospects of success. The tribunal is required to assess objectively whether at the time it was brought, the claim had no reasonable prospect of success, judged on the basis of the information known or reasonably available to the claimant, and what view the claimant could reasonably have taken of the prospects of the claim in light of those facts (Radia v Jefferies International Ltd [2020] UKEAT 0007/18).[5]The ET1 in this claim was filed on 1 March 2024 for unlawful deduction of wages. It also sought "compensation for distress caused" which was not a legitimate ground of claim. However, I have borne in mind that the Claimant was not represented at the time the claim was submitted.[6]The Respondent filed its Grounds of Resistance on 14 May 2024. Those grounds set out the reasons why there had been no unlawful deduction of wages. Those reasons were pursued, successfully at the final hearing.[7]On 14 June 2024, the Respondent sent a costs warning letter to the Claimant. That letter reiterated the contractual provisions set out in the Grounds of Resistance and also drew the Claimant's attention to the case of Agbeze v Barnet, Enfield and Haringey Mental Health NHS Trust (UKEAT/0232/20) which the Respondent successfully relied upon at final hearing.[8]The letter set out the Respondent's intention to seek costs from the Claimant should he be unsuccessful at trial. The Respondent offered an opportunity for the Claimant to withdraw his claim by 28 June 2024 and informed that if he did so they would not seek costs against him.[9]On 17 June 2024, the Claimant responded (through his legal professionals). He cited the case of Rice Shack Ltd v Obi (UKEAT/0240/17) and claimed that "where there is a lack of communication between an organisation's different departments, leading to contradictory information being provided to an employee, this can undermine the enforceability of contractual terms that would otherwise allow the employer to withhold pay". This not the argument that was actually run by the Claimant at hearing. The Respondent's offer was rejected and the Claimant indicated his own intention to seek costs against the Respondent in the event of his success at trial.[10]On 18 July 2024, following the exchange of witness statements, the Respondent made a further offer. It pointed out, again, the issues in the Claimant's case and how the circumstances of Obi were not applicable to this case and set out clearly that its costs to date were in the region of £6,000. It again gave the Claimant the opportunity to withdraw his claim. He did not do so. The costs bundle was sent to the Claimant's solicitors on 19 July 2024.[11]It was determined at the hearing that there was no entitlement to there being a properly payable sum to the Claimant which I accept should have been apparent after reading the case Agbeze – particularly following the Respondent’s explanation of the case and their position in correspondence.[12]I accept that given the appellate authority were not supportive of the Claimant’s case and that this was pointed out to him, that by 1 July 2024 he should have on an objective assessment known that he had no reasonable prospect of success. The ground set out at Rule 76(1)(b) is therefore made out.[13]I am satisfied that this opens the door to a potential cost order being made. It does not mandate me to make such an order, as I must consider all the circumstances of the claim.[14]I have been advised that the Claimant held a genuine belief in his case after seeking legal advice and that he followed the relevant grievance process and offered to enter ACAS mediation but that the Respondent refused to enter ACAS discussions. As mentioned above the test is an objective one, not whether the Claimant’s belief in his success was genuine. Nor do I consider it a mitigating factor that the Respondent chose not to enter mediation discussions through ACAS given the clarity with which it understood the case law and the position it had taken.[15]The Claimant has submitted a statement of costs which is to the sum of £8401. They state that the costs incurred by the Claimant should be taken into account in relation to any amount awarded. I note that the Respondents have restricted their costs from 01 July 2024 to 22 July 2024 for the amount claimed for £6911.40.[16]Further the Claimant has submitted that he incurred student fees expenses £9250 in respect of having to retrain. I am advised that his financial situation is critically impaired but no detail has been provided in respect of that and/or his financial situation more generally. Though at the start of the application the Claimant has stated that there is a disparity in respect of the amount claimed by the Respondent and the costs incurred by Claimant they have not explained their position clearly despite being given a further opportunity to provide clarity.[17]I find taking into account all the circumstances of the case and the submissions before me that an appropriate figure to award here would be the full amount of £6911.40.[18]I have been advised that the Claimant has financial difficulties but have not been provided with any specific information in their submissions in respect of this. I am of the view that a costs order should be made notwithstanding the fact this may cause the Claimant further difficulties. The respondent is reminded that it is within their gift to agree a payment plan should they feel it is appropriate. Approved by: