Dr A Abdelrasoul v Doncaster and Bassetlaw NHS Trust and The British Medical Association: 6000947/2023 and 1805089/2023
JUDGMENT
[1]Claim 6000947/2023 is rejected.[2]The claim against the BMA of unauthorised deductions from wages contained in claim 1805089/2023 is struck out as having no reasonable prospect of success.[3]The remainining issues are adjourned to a further hearing which is the subject of a separate case management order. EJ Rostant 18 December 2023 Case Number:1805089/2023 PHCM Order 1 of 5 September 2023 EMPLOYMENT TRIBUNALS Claimant: Dr M M A Abdelrasoul Respondent 1: British Medical Association Respondent 2: Doncaster and Bassetlaw Hospitals NHS Foundation Trust RECORD OF A PRELIMINARY HEARING Heard at: Sheffield On: 18 December and 1 March 2024 Before:REASONS
[1]There follow reasons for the judgement I made on 1 March, sent to the parties on 13 March. My judgement of 18 December, striking out a claim of unauthorised deduction from wages against the BMA was not the subject of a request for full reasons.[2]The claimant requested reasons for my judgment striking out the remaining claims against both respondents by email of 25 March. That request was within 14 days of the date that the decision was sent to the parties in writing. The request and a number of subsequent repeated requests were not referred to me until 30 May. History[3]These claims have a complicated procedural history. The claims carrying the case number above are contained in a second claim form where the matters complained of are repeats of complaints made in earlier forms. By the time the matter returned to me in March, the original claim forms had been rejected because of material procedural defects. Case Number:1805089/2023 PHCM Order 2 of 5 September 2023[4]The remaining claims were of race discrimination against both respondents and of unauthorised deduction from wages against the Trust.[5]The claims against the BMA were the subject of a case management hearing before EJ Rodgers on 8 September 2023 and the resulting order sets out the background to the claims in some detail. EJ Rodgers ordered that the claimant pay a deposit of £200 in respect of each of the claims and agreed to set the claims down for a further preliminary hearing (18 December) to consider an application to strike out for want of jurisdiction, as set out at paragraph 69 of the[6]In the interim, the claimant lodged a second claim form bringing claims of race discrimination and unauthorised deduction from wages against both respondents. The Notice of Hearing was amended so that the preliminary hearing of 18 December was required to consider6.1 Whether the claims in the first claim form as against the Trust should be struck out because of failure to pay a deposit,6.2 Whether that claim form should in any case be rejected because it had been presented before early conciliation had commenced,6.3 Whether the claims in the case numbered 1805089/ 2023 (repeating earlier claims inn earlier forms claims) should be struck out as an abuse of process.[7]At the hearing in December, I struck out the claim of unauthorised deduction against the BMA. I also rejected claim 6000947/ 2023 (the claim form containing the claims against the Trust which were the subject of EJ Rodgers’s deposit Order). I then adjourned the remaining issues to a further hearing, listed for 1 March 2024. I identified the issues in that further hearings as7.1 Whether the Tribunal had jurisdiction (because of the time limits) to consider a claim against the BMA for race discrimination. That claim was based on an assertion that the BMA had given the claimant incorrect advice in his dispute with the Trust.7.2 Whether all or any of the claims were an abuse of process7.3 Whether any of the claims stood little or no reasonable prospect of success.[8]At that hearing, and by a judgment delivered with reasons to the parties on the day and confirmed in writing on 4 March, I struck out all the remaining claims.[9]I did so on the grounds that none of them stood any reasonable prospect of success. I expressly did not deal with the jurisdictional or abuse of process arguments for lack of time and, should there be a successful challenge to this decision, I note that those arguments remain open to the respondents.[10]The material facts in this case are not in dispute.[11]The claimant was employed by an NHS Trust in Lincolnshire under something called a Medical Training Initiative (MTI). The contract was for a fixed term and provided for payment of a salary of £48,082. Case Number:1805089/2023 PHCM Order 3 of 5 September 2023[12]Before the expiry of the fixed term, the claimant obtained employment with the Trust as a GP trainees at a salary of £39,467. The claimant contends that he was entitled to have his higher pay in the previous job protected. He contends that the failure by the Trust to pay him that higher salary was direct discrimination on the ground of race and also a series of unauthorised deductions from wages. He alleges that the BMA’s advice to him, that he was being correctly paid by the Trust, was directly discriminatory on the ground of race.[13]At the outset of the hearing in March, the claimant properly conceded that if, as a matter of fact, he was not entitled to protected pay in his new employment, all the claims must fail.[14]The Trust properly conceded in turn that (absent any abuse of process argument) if, on a proper construction of the claimant’s contract he is entitled to protected pay, the claim of unauthorised deduction must succeed.[15]It followed that the proper construction of the claimant’s contract was potentially decisive.[16]The parties agreed that the claimant’s contract with the Trust incorporated the 2016 National Terms and Conditions.[17]Those Terms and Conditions make provision for pay protection at Schedule 15 headed “Transitional Arrangements”. The claimant relies upon the provisions of paragraph 27 (6) Part 2. That provides for pay to be protected when a doctor moves Trust if three conditions are met.17.1 The Doctor must have been employed as a specialist registrar17.2 And on a training scheme described as a “pre2002” scheme17.3 And that scheme must have been an “approved” scheme.[18]The respondents’ case is that the claimant falls at the first hurdle. On what I have seen of the documentary evidence before me I cannot say that the claimant has little or no chance of showing that he was employed by the Lincolnshire Trust as a specialist registrar and I reject that argument.[19]Similarly, in the absence of any information about the nature of the training scheme that the claimant was on at the Lincolnshire Trust, there is insufficient evidence to warrant a strike out or deposit order on the ground that the claimant fails to meet the second condition.[20]However, matters are different when it comes to the requirement that the scheme be “approved”.[21]The 2016 National Terms state that pay protection will not apply where a doctor was not employed on a Health Education England (HEE) approved training programme. The term “training programme” is defined as one which “allows the doctor to acquire and demonstrate the competences to progress through the training pathway to their chosen specialism (including GP) and to acquire a Certificate of Completion of Training (CCT).” Case Number:1805089/2023 PHCM Order 4 of 5 September 2023[22]The claimant’s case (which I accept) is that the Lincolnshire MTI was defined as “stand alone training”. The documentary evidence shows that a MTI must be cleared with the HEE who will check with the local training that it is suitable. It is this process that the claimant says shows that the scheme was HEE approved.[23]I do not agree. On the claimant’s own evidence, the MTI does not lead to a CCT on completion.[24]Although I accept that the claimant could, as he says, have transferred to a different type of training which did lead to a CCT, and used his MTI to exempt him from part of that training, that is not the same as saying that completion of the MTI itself would result in the granting of the Certificate. It would not and it therefore follows that the MTI does not meet the definition of an approved scheme.[25]The claimant has a second argument. He contends that his MTI contract was a “Fixed Term Specialist Training Appointment” (FTTA). This is a type of appointment which features in the Gold Guide (the Guide) for training deans, senior doctors designated to be in charge of doctors’ training in a specific geographical area. The claimant says that it is therefore, in effect, an appointment to a “run-through training programme” (RTTP). This, says the claimant, is relevant because a RTTP is defined as one which, subject to progress, results in a CCT.[26]The claimant is not correct. The MTI is not a FTSTA. Such appointments are expressly stated in the Guide to be one-year fixed term appointments. The MTI is for two years. Further, the Guide stipulates that a FTSTA is not a RTTP, although it “may” contribute to a CCT once a candidate has successfully completed a RTTP. There is no guarantee of direct entry to a RTTP following a FTSTA.[27]The only other type of programme leading to a CCT, according to the Guide, is “uncoupled “ training. The claimant has raised no argument in respect.[28]There is one further matter. MTI training does not require GMC approval. The guide makes it clear that all training leading to a CCT does.[29]For all the reasons set out above, the claimant’s contention that, on a proper construction of the contractual provisions, he was entitled to protected pay when he joined the Trust has no prospect of success.[30]It follows that the factual basis that he must make out to found any of his claims cannot be made out.[31]I am well aware of the case law as it pertains to striking out of discrimination claims. It is and should be a rare recourse.[32]However, in the unusual circumstances of this case, where taking the claimant’s factual assertions at their highest (when the documents do not supply the evidence) these are claims which are doomed to failure. It is in the interests of justice to bring them to an end before more time, expense and emotional energy are expended by all the parties. Case Number:1805089/2023 PHCM Order 5 of 5 September 2023