Dr A Nassar v National Waiting Times Centre Board: 8000259/2025
REASONS
[1]A preliminary hearing took place pursuant to a notice of hearing which framed the issue to be decided as ‘to determine if part or all of the claimant’s claims are time-barred’.[2]The claim was presented to the Tribunal on 31 January 2025 after the claimant underwent early conciliation through ACAS between 21 November 2024 and 2 January 2025.[3]In section8.1 of the claim form he ticked the box indicating that he had been discriminated against on the grounds of age. He added under the heading of ‘another type of claim’ that there had been a failure to ‘maintain the status quo’ during a grievance process. He provided particulars of his claim in box8.2 of the form.[4]The respondent defended the claim by way of an ET3 form with attached grounds of resistance. It raised that the claim was time-barred as the claimant was said to be complaining about offers of work ceasing, and he had last worked in January 2024.[5]A case management preliminary hearing took place on 28 March 2025. The parties had provided case management agendas beforehand and there was discussion about the claim in the usual way. The judge decided to list this preliminary hearing to determine the issue of time bar. The claimant was also ordered to provide further details of his claim which he did on 21 April 2025.[6]The parties prepared a joint bundle of documents for this hearing. Numbers appearing in square brackets below correspond to page numbers in the bundle.[7]The claimant elected not to give evidence, believing that his case was adequately explained in existing documents. I asked him to clarify aspects of his case. I then gave Mr Fletcher the opportunity to make his submissions. The claimant’s case[8]The claimant’s case falls into two parts.[9]The first part of his claim is about being told he could no longer perform work to assist with reducing waiting lists, referred to in various ways such as ‘waiting time’ work, ‘waiting list’ work (or simply list work) or bank work. The latter term is used below.[10]More specifically, his case is that he was notified by an email from Jennifer Hayes, Service Manager, on 19 December 2023 [57] that he could no longer be offered bank work as he had decided not to apply for a substantive post anywhere in the NHS. It was the respondent’s policy that it wished to offer bank work only to those already engaged in this way. The claimant was not so engaged. She told him that he should not ‘bid’ for ‘lists’, i.e. offer to undertake further bank work, unless or until he obtained at least one such substantive post.[11]Save on a small number of occasions in early 2024 this is what happened and the claimant was not allowed to offer to undertake further bank work, a situation said to have continued until beyond the commencement of ACAS early conciliation.[12]The claimant alleges that age discrimination occurred because two other practitioners that he is aware of, Mr Finn and Mr Welch, were also without a substantive post but were allowed to continue undertaking bank work throughout 2024. He understands that they were doing so up until at least January 2025. He says this is despite it being acknowledged in the outcome to a grievance he raised (on 9 April 2024, the outcome being provided on 21 June 2024) that those individuals should also not be allowed to go on undertaking bank work, and that they would stop unless they too sought a substantive post. The claimant understands that they were and remain essentially retired save the bank work they undertook, and did not each already hold or go on to obtain a substantive post within the NHS.[13]The claimant understands that Mr Finn is 10 years younger than himself, and Mr Welch is one year younger. He asserts that the difference in age is the reason why he was prohibited from undertaking bank work in 2024 as compared to those individuals.[14]At this preliminary stage I am required to take what the claimant reasonably offers to prove at its highest. He offers to prove that two professionals in materially the same circumstances as himself save that they were younger, were treated more favourably than he was by continuing to be provided with paid work by the respondent.[15]The respondent argues first that the reason for refusing the claimant bank work was unconnected to his age, that his comparators were not in similar circumstances in all material respects, and that in any event the decision taken was a single act in December 2024 rather than a continuing act. Any or all of those arguments may be well founded once all relevant evidence is presented, but I cannot determine them at this hearing and for today’s purposes what is relevant is whether the claimant has a stateable case which, subject to that evidence, could succeed. On the basis of the material available today he does.[16]The second part of the claimant’s case was to do with a decision taken by the respondent’s Medical Director, Mark McGregor on 8 January 2025. The decision was said to have followed Mr McGregor acknowledging in a letter dated 27 November 2024 a number of procedural failings surrounding the provision of bank work to him. What then happened was that the claimant had asked him by email of 3 December 2024 to be provided with a small number of further days of bank work which he would perform under supervision, allowing him to be ‘signed off’ as remaining competent. This was because he had not been working since early 2024 and it would allow him to obtain a substantive post elsewhere and thus become eligible again for bank work. Mr McGregor’s reply to that email was simply to say that he did not have the power to appoint the claimant to a substantive post.[17]I sought to clarify with the claimant what type of legal claim this was. He stressed that it was not an act of age discrimination. I called for a short break in the hearing of around 15 minutes so that he could consider his position on this. Upon our return he was unable to describe the complaint in a way which could be understood as a competent claim to the employment Tribunal.[18]I considered that the claimant had been given adequate opportunity to express how this event, which he believed to be unfair in some way, could progress as one of the complaints an employment tribunal has power to decide. He had the chance to do so when drafting his claim form, when preparing his case management agenda, in discussion during the case management hearing itself, when providing written particulars following that hearing and finally today. Had he been able to frame the issue as a potentially competent complaint then he would have had to apply to amend the claim to include it.[19]My decision, delivered orally after brief deliberation, was therefore to allow the first part of the claim to proceed to full hearing but not the second part.[20]The issue for a future tribunal to decide will therefore be whether the respondent directly discriminated against the claimant on the basis of age contrary to section 13 of the Equality Act 2010 by denying and continuing to deny him the opportunity to perform bank work in circumstances where his two named (and younger) comparators were allowed to go on doing so. The claimant argues that this was a continuing act extending from around 19 December 2023 to at least early 2025 and in any event at least to the commencement date of early conciliation.[21]My findings above were made for the purposes of deciding whether the claim was presented within time. They are provisional, based on what the parties say the evidence will show, and are not definitive findings of fact. A future tribunal will decide any relevant factual matters based on the evidence provided to it.[22]I discussed some proposed case management orders with the parties and those will be issued separately with a view to minimising the loss of further time in determining the claim.