Dr N Alsadi v North West Anglia NHS Foundation Trust: 3305360/2023
EMPLOYMENT TRIBUNALS
Case No 3305360/2023
Between
Dr N AlsadiClaimantNorth West Anglia NHS Foundation TrustRespondent
Before
Employment Judge RussellIn person for claimantMr M Islam-Choudhury (instructed by Counsel) for respondentDate 30 August 2024
JUDGMENT
[1]The Respondent accepts that the Claimant is owed £14,808. By consent, the Respondent shall pay the Claimant the sum of £14,808, which is the gross sum deducted. The Claimant is responsible for the payment of any tax or National Insurance.[2]The complaint of unauthorised deductions from wages for the sum of £12,475 is not well-founded and is dismissed.
REASONS
[1]The Claimant presented a complaint to the Tribunal on 15 May 2023. He claimed arrears of pay in respect of extra work he had undertaken. Early conciliation began on 31 March 2023 and ended on 12 May 2023. The Respondent, in its response, did not admit that there had been unauthorised deductions from wages pending full and proper particularisation of the claim. Proceedings were stayed due to ongoing enquiries. A final hearing was listed for 24 January 2024. This was converted to a case management preliminary hearing.[2]The first morning of the final hearing was taken up with consideration of two applications. These were an application by the Claimant to amend his claim and an application by the Respondent to admit a supplementary witness statement. Full reasons for my decision to refuse the amendment application and allow the admission of the supplementary statement were given orally at the hearing. I set out below a summary of these. Amendment application[3]The Claimant applied to amend his claim on 14 July 2024. He attached a copy of the original claim on which he had handwritten three proposed amendments: ‘Whistleblowing, Victimisation, Injury to feelings’. By letter of 22 July 2024 the Respondent objected to the application.[4]Having heard representations from the parties, I refused the amendment. The proposed application provided no details of the complaints. The Claimant is highly educated and a senior medic. He is not, however, legally represented. I clarified with the Claimant the amendment sought. It was to add in a complaint of detriment on the ground that he had made a protected disclosure. The alleged protected disclosure was a complaint of bullying and harassment in 2021. The alleged detriment was a referral made by the Respondent to NHS Counter Fraud in March 2023.[5]The test of whether to allow an amendment involves the assessment of the balance of injustice and hardship of allowing or refusing the amendment (Selkent Bus Co Limited v Moore [1996] ICR 836). In Selkent the EAT set out a list of relevant circumstances which should be considered. These have been encapsulated within the Employment Tribunals (England & Wales) Presidential Guidance on General Case Management (2018), Guidance Note 1. In Vaughan v Modality Partnership ([2021] ICR 535) the EAT explained that the factors in Selkent were not an exhaustive checklist to be followed. The Tribunal must focus on the balance of injustice and hardship in allowing or refusing the application, and on the real practical consequences of allowing or refusing.[6]The Claimant attended the case management hearing on 24 January 2024. At that hearing, he said that the fraud investigation had been prompted by him making a complaint of bullying and harassment against a colleague. Paragraph 44 of EJ Fitzgerald’s orders following that hearing states: ‘these are claims which do not currently form part of the Claimant’s claim and if the Claimant wishes to pursue such claims then he would need to either apply to amend his claim, or bring a new claim’. He was encouraged to seek legal advice and was given information about sources of free legal support.[7]The nature of the amendment is substantial. It is a new legal complaint and raises entirely new lines of factual enquiry. On the face of it, it does not appear to have been presented within the primary time limit given that the alleged detriment occurred in March 2023. Insofar as the Claimant seeks to rely on ongoing detriment, I considered Caterham School Limited v Rose EAT 0149/19 and that a determination of whether there has been a continuing act cannot be reached at a preliminary hearing based solely on whether there is a prima facie case on the pleadings. Issues of time limits would be a relevant consideration and would need to be determined by the Tribunal at the final hearing.[8]I considered the timing of the application, which had been made just a couple of weeks before the final hearing. The parties had been notified of the dates of the final hearing on 17 May 2024. The Respondent had prepared for the final hearing on the basis that it had to respond to an allegation of unauthorised deductions only. I concluded that there is real practical hardship to the Respondent in having to deal with additional factual matters related to these allegations. A complaint of protected disclosure detriment cannot be determined by a judge sitting alone. The current hearing would need to be relisted if the amendment were allowed.[9]I considered the reasons for the timing of the application. I accept that the Claimant met with Occupational Health in April 2023 regarding his mental health. He reported that he wanted to remain at work and was well enough to do so but wanted to be exempted from duty work. This adjustment was made. He remained on other clinical duties. I also accept that he had two weeks’ sick leave in April 2024. In July 2024 he met again with occupational health. He had experienced chest pains and palpitations. He was assessed as fit for work. The current adjustment of exempting the Claimant from duty work but allowing him to carry out all other clinical duties remained. I was not satisfied that the Claimant’s sickness absence in April 2024 explained the delay in making the application when he had been told on 24 January 2024 how to do so. He had remained at work in the highly responsible role of Consultant Radiologist for all this time.[10]In weighing the balance of injustice and hardship, I considered that the proceedings were at a very late stage, the final hearing would need to be relisted, the Respondent is being asked to address allegations that have different evidential considerations from those already pleaded (and may involve additional witnesses), the Claimant’s awareness of the amendment process and the fact that the complaint may be outside the primary time limit, and the lack of detail given in the amendment application. The balance of injustice and hardship was in favour of refusing the amendment. Supplementary witness statement[11]I received written statements from the Claimant and, for the Respondent, from Philip Murray, Tamer Sadek, and Alison Dalby. All witnesses were questioned on their evidence.[12]The Respondent applied to admit a supplementary statement from Alison Dalby dated 30 July 2024. It is brief. It attaches two exhibits providing further detail of the workings behind her conclusions as to the sums which are or are not properly payable. Her original statement had set out the sums that were properly payable. The supplementary statement set out the sums that were not properly payable.[13]Having heard representations from the parties, I allowed the statement to be admitted. I reminded myself of the Tribunal’s overriding objective to deal with cases fairly and justly. I considered that this evidence was necessary to allow me to determine the issues. The appendices to the supplementary statement were not admitting new evidence as the data upon which the conclusions had been drawn was already in the bundle. The Claimant confirmed that he would be able to deal with any matters arising out of the statement in crossexamination and submissions. Hearing[14]I had two bundles. I had a digital bundle of 454 pages including the index and documents relating to the amendment application. I had a digital witness statement bundle of 180 pages. Within this was the Claimant’s bundle, which was attached to the end of his witness statement. There was some overlap between these two bundles. The Claimant’s bundle had two sets of numbering (handwritten and digital), which did not match. Despite working from two different bundles with different numbering, care was taken to ensure that all parties were clear on the evidence to which they were taken in questioning. I considered those pages in the bundle to which I was directed by the parties. References to page numbers are to the 454-page bundle. References to the Claimant’s bundle are [C].[15]There were occasional interruptions to connectivity during the hearing. Notwithstanding these, I was satisfied that all parties could participate fully. I heard oral submissions from the parties. It was not possible in the time available to deliver judgment. Judgment was therefore reserved. Issues[16]This claim is about unauthorised deductions from wages. The issues I had to decide were set out in EJ Fitzgerald’s case management orders made at a preliminary hearing on 24 January 2024 [61]. I discussed these with the parties before hearing evidence. The Claimant accepted that he had been paid the sums claimed as extra on-call duties for work carried out on 7 December 2023, 21 December 2023, and 25 December 2023. He was not pursuing these claims as payment had been made.[17]The remaining sums in dispute between the parties were claims for ZZX work. The total value of the Claimant’s claim is £27,283 based on the following:(i)£9,051 in respect of a timesheet submitted on 20 January 2023(ii)£9,987 in respect of a timesheet submitted on 27 February 2023(iii)£8,245 in respect of a timesheet submitted on 15 March 2023[18]The Respondent does not accept that the Claimant is owed £27,283. It accepts that he is owed £14,808 comprising the following:(i)£5,829 in respect of a timesheet submitted on 20 January 2023(ii)£4,851 in respect of a timesheet submitted on 27 February 2023(iii)£4,128 in respect of a timesheet submitted on 15 March 2023[19]The sum in dispute between the parties is £12,475.[20]The updated issues I had to decide, using the original numbering contained in the orders of EJ Fitzgerald, are as follows:1.1 Did the Respondent make unauthorised deductions from the Claimant’s wages in relation to extra work that he carried out for the Respondent during the months of January, February and March 2023?1.2 The Claimant claims the full sum of £27,283. Is this sum properly owed to the Claimant in full or in part?1.3 Is it appropriate to award any further sum to the Claimant to compensate him for any financial loss sustained by him which is attributable to any unauthorised deduction as per section 24(2) of the Employment Rights Act 1996?
Findings of fact
[21]I make the following findings of fact necessary to determine the issues and based on the balance of probabilities.[22]The Claimant is a Consultant Radiologist. The Respondent is an NHS Foundation Trust. The Claimant joined Hinchingbrooke Health Care NHS Trust on 16 January 2012. The offer letter dated 28 December 2011 states that his basic salary is based on 10 programmed activities (“PA”) [76]. Remuneration is based on a final agreed job plan, which would be agreed after three months in post. Additional PAs are remunerated at rates set out in the national terms and conditions. These national terms and conditions are the 2003 Consultant Contract, which sets out the terms and conditions for most consultants throughout the NHS. The basis of the 2003 Consultant Contract is that the working week will be split into PAs, which are four hours. These can be sub-divided into smaller blocks of time. It is for the local NHS Trust to determine with the consultant how the PAs are allocated. This is done via an annual job plan. This will show when the consultant is carrying out NHS work. The 2003 Consultant Contract allows for consultants to do private work outside of NHS work.[23]The Claimant’s role was also subject to the local terms and conditions [77] (“local terms”). The local terms list several mutual obligations to which the Claimant and the Respondent agree. One of these is ‘to carry out our respective obligations in agreeing and operating a Job Plan’ [77]. The Claimant’s principal place of work is stated as Hinchingbrooke Hospital. Other work locations may be agreed in the job plan where appropriate. The Claimant will generally be expected to undertake his PAs at the principal place of work or other locations agreed in the job plan [78].[24]Hinchingbrooke and Peterborough City hospitals merged with the creation of the North West Anglia NHS Foundation Trust in 2017. The Claimant remained working at Hinchingbrooke. Consultant Radiologists across the two hospitals were managed by a single line manager.[25]Clause 5.1 of the local terms provides that the Claimant is ‘responsible for fulfilling the duties and responsibilities and undertaking the Programmed Activities set out in your Job Plan’ except in emergencies or ‘where otherwise agreed with your manager’ [78]. Clause 5.4 provides that the Claimant may be required to participate in the on call rota to provide emergency cover. Clause 6 provides that: ‘You and your Clinical Director have agreed a prospective Job Plan that sets out your main duties and responsibilities, a schedule for carrying out your Programmed Activities, your managerial responsibilities, your accountability arrangements, your objectives and supporting resources’. The intention is that the Job Plan will be reviewed annually but may be reviewed more frequently [79].[26]The local terms, at clause 7, set out further detail on PAs. The job plan will contain 10 PAs on average based on standard, full-time working. PAs will typically be split between 7.5 for direct clinical care work (“DCC”) and 2.5 for ‘Supporting Professional Activities’ work (“SPA”). In the Claimant’s case the split is 8.5 DCC and 1.5 SPA [94]. SPA is distinct from additional NHS responsibilities (such as acting as Medical or Clinical Director). Clause 7.3 draws a distinction between these activities. SPA is time that is spent on activities that support or underpin clinical care. Within that time, a range of activities may be undertaken including audits, CPD, education and research. It is not, however, accurate to describe SPA as personal time. It is scheduled as part of the job plan and paid for accordingly. How the time is used must be documented.[27]The parties can agree up to two extra PAs in addition to the contracted 10 PAs. In terms of scheduling PAs, the local terms provide: “You and your Clinical Director will agree in the schedule of your job plan the programmed activities that are necessary to fulfil your duties and responsibilities, and the times and locations at which these activities are scheduled to take place. You and your Clinical Director will seek to reach agreement in the scheduling of all activities.’ Clause 7.6 of the local terms is clear that any agreement to undertake additional PAs will be made in writing and incorporated into the job plan [81].[28]Clause 7.2 provides that the Claimant and his Clinical Director can agree flexible arrangements for timing of work [79]. Job Plan[29]The Claimant and Respondent agreed job plans on an annual basis. The Respondent has a job planning policy [47C]. The policy ratified in 2018 governs the relevant period. The first key principle underpinning the job planning process is that there will be an accurate job plan setting out the agreed number of PAs to be undertaken, the specific duties to be performed within those PAs, and agreed timescales. The policy notes that a flexible interpretation may be required in some circumstances [52C]. I find that this refers to the need for flexibility to depart from national practices. It is distinct from flexible working arrangements for caring or other reasons, which are dealt with separately.[30]An updated job planning policy was introduced on 13 February 2023 [136C]. One change was to add greater clarity on time shifting [137C]. Time shifting is where work that is scheduled to be done at a particular time is shifted to another time.[31]The job plan for the year beginning 01 April 2022 and ending 31 March 2023 was agreed by the Claimant and signed off by Philip Murray as first sign-off, Tamer Sadek as second sign-off, and Suzzanna Taylor as third sign-off [88]. Philip Murray is a Consultant Radiologist. He joined the Respondent in March 2019. He was Associate Divisional Director between July 2021 and April 2023. In this role he was the Claimant’s line manager. He is based at Peterborough. Tamer Sadek is a Consultant Radiologist. He has been employed by the Respondent since 2012. He was Divisional Director of the Respondent’s Family and Integrated Support Division between August 2020 to March 2023.[32]The job plan is based on a 1-week cycle. The Claimant has 12.25 PAs. His core weekly working hours are 48.14. It refers to ‘contract version 2003’ being the 2003 Consultant Contract. It contains a weekly schedule of when PAs will be carried out [92]. There is no work scheduled on Saturday or Sunday. The work is split into different types of activity including DCC, SPA, and additional NHS responsibilities. The Claimant’s additional NHS responsibilities are his roles as Clinical Director and Associate Medical Director. On call rotas work on a 6 month cycle. The Claimant often worked Mondays on call [99C].[33]Monday-Wednesday of the Claimant’s schedule is occupied entirely with DCC work. He is scheduled to work on CT reporting between 08:30-13:00, to act as Duty Radiologist between 13:00-15:00, and to carry out MTD preparation between 15:00-18:30. On Tuesdays the Claimant is scheduled to carry out MTD preparation between 08:00-10:30, MTD-Urology between 10:30-13:00, Multidisciplinary meetings between 13:00-14:30, MTD preparation between 14:30-16:30, and patient admin between 16:30-17.30.[34]The time involved in preparing for MTD meetings will depend on the number of patients. The Respondent operated on the basis that 24 patients could be prepared in 4 hours if their images had already been reported [95C]. The number of patients at MTDs varied. One average suggested 67 patients for MTD Urology across the whole of the Trust [94C].[35]On Wednesdays the Claimant is scheduled to carry out CT reporting between 08:30-10:00, MTD–Haematology between 10:00-11:00, MRI reporting between 11:30-13:00, MDT–Other between 11:00-11:30, CT reporting between 13:00-15:00, and Duty Radiologist between 15:00-17:00.[36]On Thursdays the Claimant is scheduled to do Generic SPA between 09:00- 15:00 and Clinical Director duties between 15:00-19:00. On a Friday the Claimant is scheduled between 09:00-13:00 on Associate Medical Director responsibilities.[37]Each component of the weekly schedule is broken down further to specify the number of hours, the corresponding amount of PA time, and location. Each activity is to take place at Hinchingbrooke Hospital.[38]There are two additional flexible activities recorded. Clinical audit lead work is scheduled for one hour per week. Plain film reporting is scheduled for 2 hours per week. The Claimant inserted additional notes against this. He wrote: ‘Reporting from home some chest x-rays or CT scan. Some weeks I will go to PCH to report on site’ [95]. PCH is Peterborough City Hospital. No other additional comments are noted. While the Claimant may not, in fact, have worked from home or from PCH, he wanted the flexibility to do so. This was agreed by those who signed off the job plan. This was the only flexibility agreed to in the job plan. Allegations of ZZX work in NHS time[39]The Respondent’s diagnostic imaging department had routinely outsourced reporting work due a backlog in reporting CT and MRI scans. The Respondent, like other NHS Trusts, had insourcing arrangements in place for this work. In October 2016 the Respondent introduced a policy on insourcing reporting work [326]. The policy contained in the bundle had ‘draft’ written on it. I accept that the terms adopted were those contained in the draft before me. These were the terms that Tamer Sadek and Philip Murray understood to apply to all Consultant Radiologists. The policy was circulated to Radiology Consultants at PCH on 10 October 2016 [326]. The policy underpinned the insourcing arrangements that also applied post-merger. The policy allowed Consultant Radiologists to undertake reporting work outside of regular PA time. Reporting can be done while available on call but not actually doing on call duties [327]. When reporting, a ZZX code is to be added to the report to indicate that the reporting is carried out outside of normal working hours. The work is commonly referred to as ‘ZZX work’.[40]The fees for the insourced work had not changed since 2012. By May 2022 the Respondent had a significant backlog of unreported images. Tamer Sadek and Philip Murray proposed an increase to insourced rates to counter the backlog. The revised rates were agreed from May 2022 resulting in more consultants doing ZZX work.[41]Tamer Sadek was contacted on 15 December 2022 at 14:21 by Dr Faisal Haque. Dr Haque is the Clinical Lead for Imaging at Peterborough Hospital. He had been told that reports bearing the ZZX code had been submitted by the Claimant with verification times within his NHS working hours [98]. Tamer Sadek requested the leave rota and data showing all ZZX studies reported by the Claimant from 01 May 2022. This is when the new insourcing rates took effect. He checked the Claimant’s current job plan to see when he was engaged on NHS work. He called Philip Murray that day at 16:47 having obtained the information requested. They reviewed the data retrieved from the radiology information system and cross-checked a sample of reports against the Claimant’s work time and annual leave. In their view, several reports were recorded as ZZX but appeared to have been carried out during NHS time. Tamer Sadek spoke with Dr Gardner, Chief Medical Officer (“CMO”), that evening due to the concerns he had. The CMO asked him to prepare a report for him and the Respondent’s Chief Financial Officer, who leads on counterfraud issues. The Respondent did not inform the Claimant of any concerns at this stage. This is the Respondent’s standard practice where there are allegations of possible fraud. Enquiries were then commenced following a referral to the NHS counter fraud team.[42]A meeting of the diagnostic imaging team was held on 19 January 2023. The Claimant denies being at the meeting. He says he was reporting 2 scans at the time [123C]. A cancellation of the meeting was sent [122C]. This was reversed. I find that the meeting went ahead, for the following reasons. First, there is a set of minutes showing that the meeting was held on 19 January 2023 [111]. Second, an email was sent the day after the meeting to all those who attended that refers to the meeting on the previous day.[43]The Claimant is listed as having attended the meeting. His name appears in the minutes of the meeting together with Philip Murray, Faisal Haque, and Tamer Sadek [111]. The Claimant denies being there. Tamer Sadek and Philip Murray recalled the Claimant being present. On balance, I preferred the Respondent’s account of who attended this meeting. The Claimant’s attendance is recorded in the contemporaneous written evidence. The meeting discussed ZZX reporting. Tamer Sadek and Philip Murray knew of the ongoing enquiries that were taking place into the Claimant’s claims for ZZX work. For this reason, they were acutely aware that the Claimant was present at the meeting as the rules on ZZX reporting were recounted.[44]The minutes of the meeting record that ZZX reporting was discussed under Any Other Business. Tamer Sadek noted that ZZX reporting should be done outside of NHS time. Colleagues must work their correct PA time. Colleagues were told that they needed to ensure that they did not double count. I find that that this is a reference to avoiding doing ZZX work on NHS time. The minutes note: “ZZX reporting is for consultants to do additional (insourced) work for the Trust in their own time (outside their NHS contracted hours). This is not a replacement for NHS activity and should not take place during NHS time on your job plans. If your NHS activity is cancelled or otherwise disrupted, then it is incumbent on you to find alternative NHS work and not perform ZZX work. With regards to on-calls, I do not have any issue with performing ZZX work as long as there are no on-call scans waiting for a report”.[45]On 20 January 2023 at 12:13 Tamer Sadek sent an email to colleagues including the Claimant. He referred to the previous day’s meeting. He wrote that further to that meeting and ‘preparing for the next round of job planning’ he wanted to reiterate the arrangements for ZZX reporting. He repeated what had been said in the meeting, namely that ZZX work should not take place on NHS time. He asked colleagues to contact him or Philip Murray if they had any questions [116]. The Claimant accepted that he had received this email. He did not raise any questions with Tamer Sadek or Philip Murray.[46]In his oral account the Claimant said that he understood the reference to job planning to mean that these arrangements would apply from April 2023. Read objectively, I do not find Tamer Sadek’s email to reflect the position only as it would be applied from 1 April 2023 onwards. The discussion at the 19 January meeting mentions job planning but this is in the context of extra additional PA time being given for off-site home reporting, which is different from ZZX. Reading the 20 January email in the context of what had been discussed the day before, I find that Tamer Sadek was referring to that discussion. Moreover, in both the 19 January meeting and in the 20 January email, Tamer Sadek says that he is ‘reiterating’ the position. An objective reading of this account is that the position has not changed. Colleagues are being reminded of the rules currently in place. If the Claimant were in any doubt about there being a change in policy and when the change would come into effect, he could have raised this with either Tamer Sadek or Philip Murray. He did not do so.[47]The Claimant completed a claim for £9,051 on 20 January 2023 for ‘additional out of hours reporting’ [222]. The reporting covered the period 21 December 2022 to 18 January 2023. He attached a breakdown of all reports that had been printed from the radiology information system on his behalf. The Claimant inputs when the work has been completed into the system but the data showing all the reports completed (typically around 300) is printed by the Clinical Systems Manager for Diagnostic Imaging. The Claimant will attach the data to the claim form and submit it [223-227].[48]The claim forms need to be signed off at two levels. Philip Murray can sign at first level. Tamer Sadek can sign at the second level. Both had signed off on the Claimant’s additional out of hours reporting over a period of months. They did not scrutinise each report that is claimed. The accompanying data runs to hundreds of reports. They checked that the form had been completed properly and looked in order. They trusted the Claimant to have filled out the form accurately.[49]At the time the Claimant submitted this claim form on 20 January 2023, the Respondent’s position on ZZX reporting had been reiterated at the 19 January meeting. It had also been reiterated in the 20 January email. The Claimant was not aware at this point that the Respondent was making enquiries into his reporting. On 03 February 2023 Tamer Sadek told the CMO that he was uncomfortable signing off on claims in these circumstances [118C].[50]On 27 February 2023 the Claimant completed an ‘additional out of hours reporting’ form for the period 19 January 2023 to 16 February 2023. He claimed £9,987 [229]. He attached a breakdown of the reports completed in this period [230-235].[51]On 15 March 2023 the Claimant completed an ‘additional hours of hours reporting’ form. He claimed £8,245 [238]. He attached a breakdown of the reports completed in this period [239-248].[52]A meeting was held between the Claimant and the CMO on 08 March 2023. I accept that the Claimant was upset at the concerns raised at the meeting. He wrote to the CMO on 09 March 2023 [292]. He said that no concerns about ZZX reporting had been raised with him by either Tamer Sadek or Philip Murray. He said that he had discussed his ways of working with Philip Murray. He said that he had been told that ZZX work should not be verified in DCC time. He did not mention time shifting.[53]The Claimant sent a further email to the CMO on 22 March 2023 [289]. In this email he stated that the allegation against him appeared to have been accepted ‘without understanding my working pattern (including flexible sessions), my weekly day-off or annual leave taken’. The Claimant said in his oral account that the reference to flexible sessions meant time shifting. Time Shifting[54]The parties differ in their accounts about the Claimant being allowed to time shift. The Claimant says that there was an agreement that he could time shift. He says that he would often move NHS work to the weekend. This freed up NHS job plan hours during the week. He would then do ZZX work during this time. He relies on an agreement he says was confirmed in writing in May 2022. He says that even before this agreement, he had verbal discussions with Philip Murray where time shifting had been agreed. The agreement on which the Claimant relies is an email exchange. On 05 May 2022 Philip Murray asked the Claimant and another colleague at Hinchingbrooke to let colleagues know ‘their weekly on/off site schedule so that someone is aware’ [46C]. The Claimant accepted under cross examination that Philip Murray wanted to know where colleagues at Hinchingbrooke were and to ensure that there was one Consultant Radiologist present. The Claimant wrote that he worked onsite on Monday PM, Tuesday AM/PM, Wednesday AM (from 10am)/PM. He said he was usually but not always off site on Monday AM, Wednesday 9-10am, and Thursday AM/PM. He said that he was ‘quite flexible as I may stay much longer or come much earlier but the above is indicative…sometimes I come on Weekends as well’ [44C].[55]Philip Murray disagreed entirely that there had been an agreement with the Claimant that he could shift time in this way. He denied agreeing to any time shifting orally or in writing. Tamer Sadek was clear that such an agreement would need the express approval of a consultant’s line manager.[56]I accept that the Claimant did not always stick rigidly to the times written on his job plan. I also accept that he will sometimes come into work at the weekend. This is clear from his email of May 2022. He is not scheduled to do any NHS work at the weekend. It is not clear, however, what work he is doing at weekends. I find that he may have worked at weekends to get a head start on NHS work for the coming week but there was no clarity as to the nature, amount, or frequency of this work. I find that it would also have been unclear to Philip Murray what work was being done at the weekend, how often the work was being carried out at weekends, and for how long. The Claimant’s email is a brief response to a request as to the whereabouts of consultant radiologists at Hinchingbrooke from the line manager based in Peterborough. Read objectively, I do not accept the Claimant’s characterisation of this email as being an agreement to time shift or confirmation of a previous verbal agreement to time shift.[57]I find that there was no agreement between the Claimant and the Respondent that allowed the Claimant to time shift. The only flexibility agreed to by the Respondent in respect of the Claimant’s working time is that which is contained in the job plan, namely that some reporting may be done from home. The Claimant said that he never did work from home. Alison Dalby investigation[58]Alison Dalby is a self-employed HR consultant. She has previously worked for the NHS. She was part of the original implementation team for the 2003 Consultant Contract. She was asked by the Respondent to investigate the Claimant’s claims for additional payments [297]. This included the three submitted timesheets, which form the basis of the claim to this Tribunal. She is independent of any counter fraud teams. She had no knowledge of the matter until being asked by the Respondent to act as an independent investigator. She was asked to report on whether, and to what extent, the work claimed had been undertaken; whether the work was inside or outside of NHS working time; and what sums should be payable to the Claimant.[59]As part of her investigation, she interviewed Tamer Sadek on 23 January 2024, Philip Murray on 26 January 2024, and the CMO on 12 February and 26 March 2024. The CMO explained that the rules on insourcing pre-dated his arrival at the Respondent. Insofar as his predecessor is concerned, the previous CMO wrote to the current CMO on 05 July 2023. The previous CMO was clear that additionally remunerated work could not be done during paid NHS hours [113C]. The current CMO was clear that ZZX work should not be done on DCC or SPA time. In his view, time shifting was not common practice in the Respondent and explicit consent was needed for this. Any flexibility should be recorded under the flexible activities section in the job plan. This view accorded with Alison Dalby’s experience of the 2003 Consultant Contract. The job plan incorporates the totality of a consultant’s work. Time shifting may be permitted in some circumstances but must be with the express agreement of the line manager. Alison Dalby’s account was clear and straightforward. If a consultant is doing non-NHS work on time that the job plan shows as NHS time, there should be an explicit statement to that effect and it must be agreed by the line manager.[60]Alison Dalby considered the Claimant’s contract of employment, job plan, claims submitted together with the supporting data provided by the Clinical Systems Manager, minutes of the 19 January meeting, the 20 January email, and a document on proposed changes to insourcing rates.[61]The data that Alison Dalby reviewed is the same data that the Claimant appended to his claims made on 20 January 2023, 27 February 2023, and 15 March 2023. It was provided by the same person who would print the data for the Claimant to attach to his claim forms. She considered each of these items in turn, which run to hundreds of reports. She colour coded each one as to whether the work was done during NHS contracted hours or outside contracted hours. She then prepared a summary of what work was properly payable.[62]The Claimant rejected the legitimacy of the investigation. He did not agree to being interviewed by Alison Dalby. There was no contact between the Claimant and Alison Dalby. She had been told by the Respondent’s HR department that he did not want to participate. The Claimant continues to reject the legitimacy of Alison Dalby’s investigation and did not, under cross examination, question her calculations as to how the sums she considered to be properly payable had been arrived at.[63]I find that Alison Dalby’s investigation was careful and thorough. She could not speak with the Claimant because he refused to engage in the investigation process. The data upon which she based her investigation was the same data that the Claimant relied upon to support his claims for additional payments. She matched each claim against his job plan. On her analysis of the entirety of the evidence, she considered that of the £27,283 claimed under all three of the relevant timesheets, £14,808 had been claimed in accordance with the Respondent’s rules on ZZX work.[64]I find that the evidence provided by Alison Dalby as to how she reached her conclusions to be clear and detailed, showing carefully how the figures had been arrived at. The outcome of her investigation was that in respect of the claim made on 20 January 2023, £5,829 of the claimed sum of £9,051 was properly payable. In respect of the claim made on 27 February 2023, £4,851 of the £9,987 was properly payable. In respect of the claim made on 15 March 2023, £4,128 of the £8,245 was properly payable. The Respondent had not paid these sums. Law[65]The right not to suffer unauthorised deductions from wages is contained in section 13(1) of the Employment Rights Act 1996 (the Act). It provides: “An employer shall not make a deduction from wages of a worker employed by him unless—(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”[66]Section 13(3) of the Act provides: ‘Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion’. This means that a deduction is a failure, in whole or in part, to pay what was properly payable to the worker on a particular occasion.[67]The meaning of the phrase ‘properly payable’ was considered by the Court of Appeal in New Century Cleaning Co Ltd v Church [2000] IRLR 27. It means that the worker has a legal entitlement to the pay whether under his contract or otherwise. 68. ‘Wages’ is defined in section 27 of the Act. Wages means any sum payable to the worker in connection with his employment including (but not limited to) ‘any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise’ (section 27(1)(a)).[69]Section 23 of the Act gives a worker the right to present a complaint to an Employment Tribunal that an employer has made a deduction from his wages in contravention of section 13.
Conclusion
[70]Did the Respondent make unauthorised deductions from the Claimant’s wages in relation to extra work that he carried out for the Respondent during the months of January, February and March 2023? The Respondent accepts that the sum of £14,808 is properly payable. It was content for me to issue a judgment by consent that the sum of £14,808 is owed by the Respondent to the Claimant.[71]The issue for me to decide is whether there has been an unauthorised deduction of the sum of £12,475 being the balance of additional hours payments claimed on 20 January 2023, 27 February 2023, and 15 March 2023. This turns on whether the sum of £12,475 is properly payable. Does the Claimant have a legal entitlement, under the contract or otherwise, to this sum?[72]The parties accept that consultants can be paid additional sums for insourced ZZX work. The parties also accept that this is separate from, and therefore paid in addition to, NHS work. The Claimant accepts that reports were carried out in time that is, according to his job plan, NHS time. The basis of the Claimant’s claim is that by shifting his NHS work to other times, he freed up NHS job plan time. In this way, he argued that he was not doing ZZX work during NHS job plan time because that NHS work had been done at some other point.[73]The Claimant’s contract does not contain a provision entitling him to shift his working hours unilaterally. I had found that the contract contains a clause that allowed the Claimant to agree flexible working arrangements with his line manager but, as the provision is clear, that must be by agreement. The requirement for agreement to be obtained regarding flexibility as to the time of work is also clear from the job planning process. Every year the Claimant must agree with his line manager a job plan. This must be signed off at three layers of the Respondent’s organisation. It is an important document. The local terms make clear that the job plan is to include a schedule of when PAs take place. The only flexibility agreed to between the Claimant and his line manager was that he could sometimes report from home, which is a flexibility the Claimant said that he never used.[74]I do not accept the Claimant’s argument that an email briefly stating the times when he is usually on site amounts to an agreement that he can undertake NHS PAs at times of his choosing. The rationale for meticulous and annual job planning is to ensure that both parties are clear as to when work will be done and paid for by the NHS. The Claimant says that there was a verbal agreement with Philip Murray to time shift. On balance, I conclude that there was no verbal agreement. Both Philip Murray and Tamer Sadek were clear that any such agreement would need managerial approval and they had not agreed to such an arrangement. There is no record of this arrangement in the job plan despite the job plan form and process inviting discussion of flexible activities. Given the importance that the Respondent places on the job plan capturing what will be done and when, it is more likely than not that a matter as significant as time shifting would be committed to writing. Moreover, the Claimant did not, when the issue of his claims was first raised by the CMO, suggest that he had the agreement of the Respondent to time shift. In conclusion, there was no agreement between the Claimant and the Respondent that allowed the Claimant to unilaterally move his NHS PA work or to carry out ZZX work in the hours where his job plan showed him as engaged in NHS work.[75]The Claimant is only entitled to be paid for ZZX work that is done outside NHS contracted time. The position was set out in a 2016 policy that applied to all consultants throughout the Respondent post-merger. While the Claimant suggested that he was unclear on this policy, I do not accept that he would have been unclear on the position from 19 January 2023 onwards. I have found that he was present at the meeting where the Respondent’s position was reiterated for the avoidance of doubt. He received the email of 20 January 2023 confirming again the rules on ZZX work. He did not seek to clarify any ambiguities he said remained about when the rules applied, which I accept applied for the entirety of the period which is the subject of the proceedings. These were not new rules from April 2023.[76]The test that the Claimant must satisfy is to show that the sums he is seeking are properly payable. He has not been able to demonstrate a legal entitlement to the balance of £12,475. This means that the complaint cannot succeed.
Conclusion
[1]In a judgment dated 30 August 2024 and sent to the parties on 11 September 2024 the Claimant’s complaint of unauthorised deductions from wages for the sum of £12,475 failed and was dismissed.[2]The Respondent accepted that the sum of £14,808 was properly payable to the Claimant. By consent the Respondent was ordered to pay the sum of £14,808 to the Claimant, which is the gross sum deducted.[3]On 22 September 2024 the Claimant wrote to the Tribunal and the Respondent. He asked that the Tribunal reconsider its judgment. The reason given for his application is that “there has been an error in calculating compensation and to review how the compensation was calculated”.[4]Rule 70 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) provides that a Tribunal may reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the original judgment may be confirmed, varied, or revoked.[5]Rule 71 of the Rules provides that applications for reconsideration shall be made either in the hearing itself or, in writing, within 14 days of the date on which the judgment is[6]Rule 72 of the Rules sets out the process that must be followed when an application for reconsideration is made. The first stage is for the Employment Judge to consider the application and decide whether there are reasonable prospects of the judgment being varied or revoked. If the Employment Judge considers that there are no reasonable prospects of the judgment being varied or revoked, the application shall be refused.[7]A judgment can only be reconsidered if it is in the interests of justice to do so.[8]The Employment Judge should, when dealing with an application for reconsideration, take into account the following principles:(a) The underlying public policy interest in all judicial proceedings that there should be finality of litigation. This is a central aspect of the interests of justice. The power to reconsider should be used with caution (Ebury Partners UK Ltd v Acton Davis [2023] EAT 40).(b) The reconsideration process is not designed to give a litigant a ‘second bite of the cherry’ (Ebury Partners UK Ltd v Acton Davis [2023] EAT 40). It is “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before” (per Lord McDonald in Stevenson v Golden Wonder Ltd 1977 IRLR 474).(c) The Tribunal must seek to give effect to the overriding objective of dealing with cases fairly and justly, which includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding delay so far as compatible with proper consideration of the issues, and saving expense.(d) The interests of both parties should be taken into account when deciding whether it is in the interests of justice to reconsider the judgment (Outasight VB Limited v Brown 2015 ICR D11, EAT).(e) Reconsideration of a judgment may be in the interests of justice where new evidence becomes available that was not available at the time of the original judgment. To rely on this new evidence, it must be shown that: (i) the evidence could not have been obtained with reasonable diligence for use at the original hearing; (ii) the evidence is relevant and is likely to have had an important influence on the case; and (iii) the evidence is apparently credible (Ladd v Marshall [1954] 3 All ER 745, Court of Appeal). None of these conditions apply in this case.[9]The issues in dispute were clarified with the parties at the outset of the hearing. The Claimant agreed that, following the Respondent’s acceptance that £14,808 was properly due to the Claimant, the remaining sum in dispute between the parties was £12,475.[10]The judgment must be read in its entirety. The burden of proof is on the Claimant to show that the sums he claims are properly payable. He was unable to demonstrate a legal entitlement to the sums claimed. The Claimant seeks to re-argue his case on the basis that he should be entitled to additional sums for the period before 19 January 2023. He has not, however, demonstrated that there was a legal entitlement to the sums claimed at any date. The Claimant’s case, as he unequivocally advanced it at the final hearing, was that there was an agreement that he could time-shift and thereby free up NHS time to do additional paid work. The judgment is clear that there was no such agreement whether before or after 19 January 2023. In the absence of the Claimant showing that the sums are properly payable, the complaint cannot succeed.[11]The Claimant, in his application for reconsideration, argues that the sum recorded to be paid by consent has been incorrectly calculated. The calculations were available to the Claimant in advance of the final hearing. The basis for how the sum was reached was explained to him by Respondent’s counsel at the outset of the hearing. The parties agreed that the sum of £14,808 was payable and judgment was therefore issued by consent for this amount.[12]The Claimant did not, at the final hearing, challenge the evidence given by the Respondent’s witness as to how she carried out the detailed calculations to arrive at the sum of £14,808. His challenge was on the principle that he was entitled to timeshift.[13]The Claimant has provided no explanation as to why the detailed calculations of the sum payable by consent were not challenged at the final hearing, other than that he considers that work completed before 19 January 2023 should be treated differently because this was the date when the Respondent reiterated its policy (in place from 2016) about ZZX work not being carried out on NHS time. Even if the Claimant had produced evidence of his revised calculations at the hearing, it is unlikely to have had any impact on the outcome of his claim. This is because the issue for the Tribunal to determine was whether the sums claimed were properly payable, which the Claimant was unable to show.[14]For the above reasons, there is no reasonable prospect of the judgment being varied or revoked. The Claimant’s application for reconsideration is refused.