Mr A Bhatia v Kettering General Hospital NHS Foundation Trust: 3305454/2024
JUDGMENT
Pursuant to rule 74(2)(c) of the Employment Tribunal Procedure Rules 2024 the Claimant is ordered to pay the Respondent’s costs in the sum of £1,250 plus VAT in respect of the adjourned hearing of 3 September 2025.REASONS
[1]The Claimant was employed by the Respondent from 10 May 2014 to 4 August 2023 as an Urology Registrar.[2]ACAS conciliation took place from 2 August to 13 September 2023.[3]On 29 May 2024 the Claimant lodged a claim alleging he was owed arrears of pay.[4]He stated in his claim form that when he started working for the Respondent his on-call schedule was from 8am until 8pm, except at the weekend when his schedule ended at 2pm. However, in 2020 during the peak of Covid his schedule was changed to last for 24 hours from 8am until 8pm and weekend on-calls were for 48 hours. After involvement from the BMA other doctors were paid at least £14,000 extra but he was excluded and told he was already on the highest scale. 1 of 5[5]In its response the Respondent submitted the claim was out of time. The last alleged date of any deduction was the date on which the Claimant’s final salary was paid to him following the termination of his employment, namely 25 August 2023. The ACAS conciliation certificate was issued on 13 September 2023, therefore the claim should have been submitted on or before 12 December 2023. However, the claim was not submitted until 29 May 2024, which was more than five months after the deadline.[6]The Respondent averred that the pay structure for the Claimant’s role was a basic salary for 40 hours, 7am-7pm Monday to Friday and a supplement for oncall work of 50% which covered any hours up to 48 per week, which the Claimant was paid for the entire duration of his employment.[7]At some point the supplement paid to newly appointed registrars changed from 50% to 40%, but the Claimant was not affected by these changes. Further, in April 2020 changes were made to the rota which should have attracted a supplement rate of 50% but due to a mistake some newly appointed Registrars (which did not include the Claimant) continued to be paid at the supplement rate of 40%. Following complaints by the affected Registrars the Respondent rectified this mistake in respect of those Registrars in July 2022.[8]Since the Claimant also believed he was due a payment, Mr Nic Nicolaou, the Respondent’s Medical Workforce Manager, met with the Claimant and his union representative on 30 March 2023 and explained the Respondent’s position.[9]The Claimant subsequently resigned. Procedural Background[10]By letter of 26 March 2025 the matter was set down for a 3hr Final Hearing by CVP on 3 September 2025 (today). The following orders were also made:a. By 9 April 2025 the parties were to send copies of their documents to each other.b. By 23 April 2025 the parties were to send each other a written summary of what they and their witnesses intended to say at the hearing.c. No less than 7 days before the hearing the Respondent had to send the Claimant and the Tribunal a bundle of the documents to be used at the Final Hearing.[11]On 8 April 2025 the Respondent’s representative (RR) contacted the Claimant and asked if he was ready to exchange documents. The Claimant replied stating that he did not have any documents as he had already submitted them. RR asked the Claimant who he had submitted the documents to, but the Claimant did not respond.[12]On 16 and 17 April 2025 RR sent the Claimant the Respondent’s disclosure documents by email and then a hard copy of its disclosure bundle. RR also suggested that the parties agreed an extension of the date for the exchange of witness statements because they had not yet agreed the bundle for the Final Hearing.[13]Following further emails from RR on 24 April 2025 and 8 May 2025 the Claimant stated he had received the Respondent’s disclosure bundle, although 2 of 5 he had not had a chance to review it, he had more information that he needed to add to the bundle.[14]On 28 May 2025 RR asked the Claimant for an update, stating the documents were needed as soon as possible. The Claimant replied to say he had spoken to his solicitor who was going to send them. RR asked for the contact details of the Claimant’s solicitor, but the Claimant did not respond.[15]On 24 June 2025 RR asked the Claimant for an update, but he did not respond.[16]On 11 August 2025 RR sent an email to the Claimant proposing to exchange witness statements on 20 August 2025. Again, the Claimant did not respond. On the same day RR sent the Claimant a paginated bundle.[17]On 19 August 2025 RR sent the Claimant an email asking whether he was ready to exchange witness statements on 20 August 2025. The Claimant did not respond.[18]On 26 August 2025 the Claimant sent RR an email stating he had had an accident and fractured his tailbone, and he did not think he would be able to attend the hearing and asked RR to reschedule the hearing.[19]On 28 August 2025 RR wrote to the Claimant informing him that she could not reschedule the hearing and that he would have to make a formal application to postpone the Final Hearing attaching medical evidence. She also pointed out that she had contacted him on numerous occasions seeking to agree a bundle for the Final Hearing and a date to exchange witness statements, and that although he had stated he wished to add documents to the bundle she was yet to receive anything from him. She asked him to confirm whether he was in a position to exchange witness statements on 28 August 2025 and if not, why not. The Claimant did not respond.[20]On Sunday 30 August 2025 the Claimant made an application to postpone the Final Hearing, attaching a medical report which indicated that the incident in which the Claimant sustained his injury had taken place on 15 August 2025.[21]He sent a further email of the same date asking for an adjournment because he had sustained a fracture and was receiving medical treatment and was unable to attend or participate effectively in the hearing. And that in these circumstances it would be unfair to proceed as he was not able to properly prepare his case.[22]On 2 September 2025 EJ Tynan issued the following direction: “…tomorrow’s hearing should remain in the List, on the basis that the Claimant is at liberty tomorrow to renew his application to postpone the hearing. However, if the Claimant continues to seek an adjournment, he is expected to adduce up to date medical evidence on his situation, including his ability or otherwise to participate in a three-hour video hearing. If he pursues his application tomorrow and the application is granted, the Tribunal may consider whether he should be ordered to pay the Respondent’s costs of tomorrow’s hearing given his late application and any otherwise avoidable costs that may have been incurred. If the Claimant does not attend tomorrow’s hearing, any application by him to 3 of 5 postpone the hearing is unlikely to be granted, in which case he should be aware that his claim could be dismissed in his absence.”[23]On 2 September 2025 the Claimant sent a further email attaching an MRI scan as evidence that he had sustained a fracture to his coccyx and was unable to sit for very long.[24]At the hearing today the Claimant made a further application for an adjournment which was opposed by the Respondent.[25]After consideration, with some reluctance, I granted the application. This was on the basis of a combination of factors: the Claimant’s discomfort from his fracture and, he said, his inability to concentrate on the proceedings; the fact that the Claimant was entirely unprepared for the hearing having failed to provide any documents to the Respondent or a witness statement, or even set out the amount he is claiming by way of unpaid wages; and the fact that given, in particular, the Claimant’s lack of preparedness it was unlikely the hearing could be completed in three hours.[26]Having adjourned the Final Hearing and made Case Management Orders, I informed the parties that I was required to consider making a costs order pursuant to rule 74(2)(c) of the Employment Tribunal Procedure Rules 2024 because the hearing had been adjourned on the Claimant’s application made less than 7 days before the hearing.[27]Ms Nicholls subsequently made an application for costs in the sum of £1,250 plus VAT, being the costs of her attendance at the hearing today, to which Mr Bhatia objected.Conclusions
[28]My decision to adjourn the hearing was because of a combination of factors; had the case been prepared by both sides I would not have considered it necessary to adjourn solely because of Mr Bhatia’s injury. There was no medical evidence before me that he could not conduct a 3hr hearing by way of CVP and in fact he told the Tribunal that he was currently working. In that latter respect, although not performing surgery he was walking to his clinics – which lasted from 9am until 12.30pm – and seeing patients as well as dealing with administrative matters.[29]I therefore have to say that the Claimant’s accident appears in many respects to be a convenient excuse for his adjournment application because he is entirely unprepared for the hearing. I note that he entirely failed to engage with the RR after 28 May 2025, as set out in the chronology above, and only contacted her on 26 August 2025 to inform her of his accident and asking her to reschedule the hearing. Further, the Claimant said that his accident in which he sustained his injury took place on 3 August 2025 and yet he did not make his application to the Tribunal until 30 August 2025 by which time the Respondent had incurred the cost of instructing Counsel for the hearing, and the hearing had been allocated judicial time.[30]The Claimant said that he is not a lawyer and has no experience of legal proceedings, however he is plainly a highly educated man and should have realized the importance of complying with Tribunal Orders and responding to 4 of 5 correspondence from the Respondent to prepare his case for the Final Hearing and also been able to find out how to apply for that hearing to be adjourned.[31]I consider the costs sought by the Respondent are reasonable and there is no reason to think the Claimant does not have the means to pay them.[32]I therefore make a costs order in the Respondent’s favour in the sum claimed of £1,250 plus VAT. Approved By: