Dr T Kontozoglou v Medilink Consulting Ltd: 6019420/2024
JUDGMENT
[1]Mr Syed Khizer is dismissed as the Respondent to the claim. The correct Respondent is changed to Medilink Consulting Ltd.[2]The Claimant’s claim for unlawful deduction of wages relating to notice for a planned 3 month locum agreement fails and is dismissed. The Respondent, a locum agency, was contractually entitled to end the 3 month placement early pursuant to the directions of the end user, the Colchester Hospital, who were themselves contractually entitled to do this. Approved by:REASONS
JUDGMENT having been sent to the parties on 28 April 2024 and reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024. Correct Respondent[1]The matter was listed before me to consider the Claimant’s claim against Mr Syed Khizer for unlawful deduction of wages.[2]In summary, the Claimant maintains that he agreed a 3 month locum contract with Mr Khizer and he relocated from Greece in September 2024, signed an accommodation lease for 3 months only to have the contract wrongly cut short after only one month. Mr Khizer, denied that he is a proper Respondent, he stated he is a Recruitment Consultant working for Medilink Consulting Ltd (“Medilink”), an agency that specialised in placing medical doctors and nurses on locum contracts at NHS Trusts, and at all times acted on its behalf.[3]In July 2024 Mr Khizer contacted the Claimant to inquire whether he would be interested in undertaking agency locum work in England. During their conversation the Claimant stated that he had extensive experience as a long-term agency locum, having worked across numerous hospitals within the United Kingdom. The Claimant then sent his CV to Mr Khizer.[4]On 9 July 2024, Mr Khizer contacted the representatives of Colchester Hospital and submitted the Claimant’s CV, availability, and proposed hourly charge. Subsequently, Colchester Hospital's representatives responded outlining a locum vacancy for a three-month period, with the possibility of an extension. Case Number: 6019420/2024 2[5]The Claimant was informed that his CV was pending approval by the hospital department. As part of the contractual process the Claimant was required to complete the "Medilink Consulting Temporary Worker Registration Pack," along with the necessary compliance documentation.[6]The Claimant completed and signed the detailed registration pack and terms on 29 July 2024.[7]There is no indication at all of any contractual arrangement between the Claimant and Mr Khizer personally.[8]Having considered the assertions and evidence from the Claimant and Mr Khizer, I concluded that there was no direct contractual arrangement between them. Mr Khizer is an employee of Medilink,[9]Rule 35 of the Employment Tribunal Rules of Procedure 2024 states as follows. 35. Addition, substitution and removal of parties(1) The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings.(2) The Tribunal may on its own initiative, or on the application of a party, remove any party that appears to have been wrongly included.[10]The Claimant signed the contract accepting Medilink terms on 29 July 2024 and this formed the basis of the arrangement between them. Once the contractual documents were referenced the Claimant was unable to properly maintain that he had any contractual arrangement with Mr Kaiser personally to be assigned locum work.[11]There being no reasonable basis for the Claimant’s claim that he contracted with Mr Kaiser personally, I concluded that, pursuant to the overriding objective and rule 35 of the Employment Tribunal Procedure Rules 2024, it was appropriate to Medilink as the proper Respondent to the claim and dismiss Mr Kaiser as a Respondent.[12]Therefore I concluded that it was appropriate to add Medilink as the Respondent to the proceedings and remove Mr Khizer. Mr Khizer is therefore dismissed as the Respondent to proceedings.Evidence
[13]The Claimant gave evidence on his own behalf. Mr Khizer, gave evidence on behalf of the Respondent. Both were subject to cross examination and questions from the Tribunal. Case Number: 6019420/2024 3[14]I was also referred to relevant pages in appendices that were produced by Mr Khizer.Facts
[15]I have made the following findings of fact from the evidence.[16]The Claimant is an experienced consultant specialising in histopathology. He had been undertaking agency locum agency arrangements with numerous NHS Trusts, through agencies, for over 16 years previously. He resides in Greece and seeks to work up to 6 months a year on locum contracts in the United Kingdom.[17]On 29 July 2024 the Claimant completed and signed the Respondent’s detailed registration pack and terms. For termination, clause 9.1, stated that "Any of the Employment Business, the Agency Worker, or the Hirer may terminate the Agency Worker’s Assignment at any time without prior notice or liability."[18]As an employment business, Medilink provided locum medical professionals to hirers who were generally NHS trusts and medical organisations who were in requirement of medical support.[19]A benefit of the locum contract was the flexibility, short term nature and potential freedom that it allowed medical professionals. The Claimant readily accepted that he was accustomed to temporary worker contracts, and he arranged his work of over 16 years work NHS contracts to enable him not to work Easter, summer and work in UK for six months a year. There was no obligation under a temporary worker contract for there to be a requirement for the work to continue and there was no obligation under the temporary worker contract for the work to be offered.[20]On 29 August 2024 the Claimant was sent confirmation of assignment from Phil Booth at Medilink assigning him to Colchester Hospital (Litmus) as a Histopathology Consultant. The period of assignment was 23 September 2024 to 23 December 2024 with a rate of pay of £116.49 per hour via PAYE.[21]By email dated 10 September 2024, the Respondent was informed by Colchester Litmus that the assignment was only required to be for one month duration from 23 September 2024 to 23 October 2024. This was not conveyed to the Claimant by the Respondent.[22]The Claimant did not pursue a claim against the ‘Colchester Hospital’ as he had originally intended. This aspect of his claim was rejected due to non-compliance with the Early Conciliation requirements. The Respondent referred to the fact that, prior to assignment, the Claimant would have had to sign a separate contract for services agreement with the Colchester Hospital and referred to an unsigned contract between the Claimant and East Suffolk and North Essex Foundation NHS Trust offering a Case Number: 6019420/2024 4 placement at Colchester Hospital from 23 September 2024 to 23 October 2024 at a rate of £103.79 per hour. Clause 2.2 of this contract states The Engagement shall be deemed to have commenced on the Commencement Date and shall continue unless and until terminated on 23/10/2024 without the need for notice, unless previously terminated by either party giving the other not less than 24 hours’ notice in writing.[23]The Claimant maintains that he did not see this contract, it was unsigned, and he would not have agreed to it in view of the limited duration and rate of pay referred to. I accept the Claimant’s evidence that he did not get this contract. There is an email from the Claimant to Mr Khizer dated 18 September 2024 stating he cannot log on to access the NHS contract. However, he would not have been able to undertake any work at Colchester Hospital without there being terms agreed between them. Clause 2.2 aligns with the termination provisions of clause 9.1 of the agreement the Claimant had with the Respondent.[24]The Claimant’s timesheets submitted show that he commenced work at Colchester Hospital on 23 September 2024. The Claimant was informed, no later than 10 October 2024, that the Colchester Hospital assignment was to end on 23 October 2024. He communicated with his accommodation providers to seek to end his lease early on this date. Following enquiry, the Respondent was informed by Colchester Hospital that they had concerns about the rate of completions of the Clamant was doing. Despite this, the Respondent sought to secure an assignment for the Claimant in the Ipswich Hospital but was unsuccessful. The Clamant was paid for his hours worked for the period 23 September 2024 to 23 October 2024.Law
[25]The Claimant alleges that there was misrepresentation made by Mr Khizer relating to the length of the assignment. He understood that it was 3 months and this led him to accept the assignment, relocate from Greece to England and enter into a short lease to rent accommodation. He says that he would not have done so if he knew the assignment was only one month, as it turned out to be. He seeks compensation of £25000 including the remaining 2 months loss of work for the assignment, accommodation charges and travel expenses.[26]The Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 only applies to employees. The Claimant does not allege that he was an employee and he fully accepts that he was a locum worker. This was convenient for him and how he lived his life for the past 16 years. Therefore, the Tribunal has no jurisdiction to consider any claims for alleged breach of contract or misrepresentation and I limit my consideration to whether, as a worker, the Claimant has established that there has been an unlawful deduction of wages for the purposes of section 13 of the Employment Rights Act 1996.[27]Section 13 of the Employment Rights Act 1996 states: 13 Right not to suffer unauthorised deductions(1) An employer shall not make a deduction from wages of a worker employed by him unless— Case Number: 6019420/2024 5 (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.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) 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.(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.[28]It is necessary to identify whether sums paid to the Claimant is less than the sums ‘properly due’ to him. Unpaid notice pay can amount to unpaid wages.Conclusion
[29]The Claimant claims that he is entitled to be paid for the full 3 months of the assignment, from 23 September 2024 to 23 December 2024. He claims the shortfall after only working and being paid for one month. Case Number: 6019420/2024 6[30]The Claimant was informed, no later than 10 October 2024, that the Colchester Hospital assignment was to end on 23 October 2024. He communicated with his accommodation providers to seek to end his lease early on this date. Following enquiry, the Respondent was informed by Colchester Hospital that they had concerns about the rate of completions of the Clamant was doing. The Clamant was paid for his hours worked for the period 23 September 2024 to 23 October 2024.[31]Under clause 9.1 of his agreement with the Respondent, the Claimant was not entitled to any notice. There was commercial sense in this clause especially as far as the Respondent was concerned as it had no control, authority or influence over what the hirer hospital could decide to do regarding whether a contract would be extended, cut short due to budget or performance issues. The Respondent had to be at the disposal of the hirer in the scope and duration of any assignment.[32]What was clear was that there was a contractual understanding that the contract with the Claimant was to be 3 months when the agreement was formed on 29 July 2024 and when the Claimant was given confirmation of the assignment on 29 August 2024. The Claimant’s previous experience with other agencies had never ended in assignments being terminated early. However, I was required to consider the proper meaning and effect of the contract that the Claimant had entered into and agreed to having read.[33]The Claimant is clearly unhappy and questions whether the Respondent and the Colchester Hospital acted in good faith in ending the contract early. He expected it to last the 3 months and possibly be extended. He asserts that the reasons for ending early was contrived and he forcefully challenges any suggestion that he was not complying with the Colchester Hospital reporting standards as required given his experience, ability and skills in his work.[34]The evidence I have seen shows that, whether accurate or not, the Respondent was clearly informed by the Colchester Hospital that there were concerns about the rate of reporting and this was the basis for ending the assignment early. Colchester Hospital is not a party to the proceedings to explain the basis for bringing the assignment to an end earlier than anticipated. Had they been a party the Claimant would still have had to deal with the terms of the contractual arrangements which allowed for early termination.[35]Whilst the Claimant planned on the basis that the contract would last the duration of at least 3 months and relocated from Greece it was clearly anticipated as a possibility that it could be ended early and in these circumstances his claim for 2 months unpaid assignment fees and any consequential loss must fail and is dismissed.[36]However, no later than 10 October 2024, the Claimant was given nearly 2 weeks’ notice that his assignment was to end on 23 October 2024. Case Number: 6019420/2024 7[37]The Respondent has therefore paid the Claimant what was properly due and the Claimant’s claim for unlawful deduction of wages therefore fails and is dismissed. Approved by: