Singh v Huddersfield Health Authority [1994] UKEAT 255_92_1504

EAT
Singh v Huddersfield Health Authority
[1994] UKEAT 255_92_1504 · 1994-04-15

JUDGE PEPPITT QC:

This is an appeal from a decision of the Leeds Industrial Tribunal rejecting the Appellant's complaint of unfair dismissal. The Appellant's originating summons also contained a complaint of racial discrimination which was not pursued before the Tribunal.The Appellant was employed as a Registrar in the geriatric department of St Luke's Hospital, Huddersfield. He was appointed with effect from 1 May 1986. The post of Registrar is regarded as a training post and is normally held for no more than between 2 and 3 years. Those medical Registrars who passed their examination for appointments as members of the Royal College of Physicians ordinarily progress to Senior Registrar and thereafter to consultant status. Unhappily, the Appellant found it impossible to pass that examination, and he failed it for the fifth and last time in 1986.His original appointment was for one year to the 30 June 1987. That appointment was extended by annual extensions to the 30 June 1988, 1989 and 1990 respectively by an extension of one month to the 31 July 1990, and by extensions of six months to the 31 January 1991 and finally to the 31 July 1991. The finality of the six months extension to the 31 July 1991 was expressed as a term of the extension and was thus known to both parties.The Appellant's contract of employment was not renewed upon the expiry of the final extension, hence the allegation of unfair dismissal. The Tribunal found that the reason for the dismissal was that the post of Registrar was a training post, and that accordingly fell within the phrase "some other substantial reason" in section 57 of the Employment Protection (Consolidation) Act 1978.In the Appellant's Notice of Appeal there was a contention that this finding by the Tribunal was wrong, but wisely Mr Stewart has not pursued it before us. Instead he relies upon sub-Section 3 of Section 57, contending that the District Health Authority as employers acted unreasonably in treating that reason as a sufficient reason for dismissing the Appellant. In that connection Mr Stewart reminded us that the issue of reasonableness fell to be determined in accordance with equity and the substantial merits of the case.The Tribunal considered equity and the substantial merits of the case in their broadest terms. Mr Stewart has isolated one specific matter upon which he pins the colours of this appeal. What he says is this. The District Health Authority should have done more to find the Appellant permanent employment, or at least to procure that his temporary employment should be further extended. He says, rightly, that the evidence before us is that the Appellant was a conscientious doctor, competent in his work and well liked by both colleagues and patients.Mr Stewart based that submission on a document which was before us, described as "Achieving a Balance - Plan for Action". It was a report published in 1987, containing guidelines for the implementation of a consultative document published in July 1986, the title of which was "Hospital Medical Staffing - Achieving a Balance". We have no evidence of the precise status of that document, save that it was not suggested to us that it had any statutory effect. We can assume that it was a document intended for the guidance, and the guidance only, of Regional Health Authorities to whom it was addressed.Part of "Achieving a Balance - Plan for Action" dealt with those who we think are unfortunately described as "stuck doctors". They are doctors who were, and are, unlikely to make further career progress. The guidance relating to "stuck doctors" appears in paragraphs 63 to 66 of the document parts of which, in deference to Mr Stewart's careful argument, I must read. Paragraph 63 reads as follows:"No precise definition is possible, but the concept of doctors unlikely to make further career progress ("stuck doctors") is likely to include most of those who have spent a total in the same specialty of five years in the Senior House Officer grade, or five years as a Registrar, or 10 years since registration without reaching the senior Registrar grade. "Achieving a Balance" proposed (paragraph 9.4) a number of possible measures to help such doctors obtain secure employment. Possible arrangements for an exercise of limited duration follow".We pause here to record simply that it was accepted by both parties to this appeal, that the Appellant was a "stuck doctor" within the meaning of that definition.Paragraph 64 of the document reads as follows:
"Employing authorities would be asked to identify all doctors at risk of becoming stuck (eg by applying the time in grade criteria set out above) and should ensure that they receive careers counselling. This might be carried out by the clinical tutor, the district specialty tutor, or by a nominee of the Regional Postgraduate Dean (preferably from outside the district). Where the counsellor concluded that the doctor was unlikely to make further career progress, this advice would - subject to the doctor's own agreement, be conveyed to the District Health Authority and to the doctor's consultant. The District Health Authority (with the consent of the doctor and the consultant) would then consider whether it wished to retain the doctor's services at the end of the current contract, and if so would prepare a case for personal appointment in the existing post or in a related post in the district, to be submitted to the Regional Health Authority."
As we understand this paragraph, if a District Health Authority wished to retain in its service, either temporarily or permanently, a "stuck doctor" it would prepare a case for such an appointment to be submitted to the Regional Health Authority. The decision as to whether or not the appointment would be made would be taken by the Regional Health Authority.Paragraph 65 of the document:
"The regional health authority advised by the Regional Manpower Committee would examine the application (that is the application by the District Health Authority) to consider in the first instance:
If regrading to associate specialist was not regarded as appropriate at the present time or if on application to Department of Health and Social Security (advised by CMC) the request was turned down, the Regional Health Authority advised by Regional Manpower Committee would authorise a single extension of the existing contract in the form of a 4-year contract. This contract would be subject to review after two years, as set out below.iwhether it was satisfied that the document was unlikely to be able to complete higher training;iiwhether other possibilities has been fully explored, such as retaining for another specialty or application for a staff doctor post.If the Regional Health Authority, and the Regional Manpower Committee were satisfied on these counts they would go on to consider:iiiwhether the nature of the work was appropriate to the associate specialist grade; and if soivwhether the individual satisfied the minimum criteria for personal regarding to associate specialist, eg length of time in the Registrar grade."It follows, we think, from the above that the power of the Regional Health Authority on the advice of the Regional Manpower Committee to authorise a single extension of a "stuck doctor's" existing contract for a period of 4 years, arises if, and only if, the "stuck doctor's" employer (the District Health Authority) submits a case for that "stuck doctor's" appointment in the existing post, or in a related post in its district.We turn now to examine precisely what happened to the Appellant in the light of those guidelines. On the 9 January the Appellant wrote to his employers setting out his work experience and making application for regrading as an associate specialist, or staff grade doctor, as stated in the report "Achieving a Balance - Plan For Action". In that letter the Appellant drew his employer's attention to paragraph 65 of the report, which I have read, and stated that if regrading was not possible for various reasons, he wished to apply for a further extension of his present contract.The District Health Authority acted upon the Appellant's application with considerable expedition, and on the 25 January 1990, page 38 in our bundle, wrote to the Regional Health Authority in these terms:
"I refer to Mr Lane's telephone conversation regarding the above named (and the above named was the Appellant) who has applied to the Authority for personal regrading to either Associate Specialist or Staff Doctor.
I wish to confirm that at this point in time I do not wish to support this application.However, both myself and all the Consultants in Dr Singh's department wish to support Dr Singh's request for a personal extension of his current Registrar contract for a period of four years (renewable after two years). This application is in accordance with the recommendations contained in paragraph 65 of the Report "Achieving a Balance".I wish to confirm that Mr Singh is a "stuck doctor" and that he has attempted his M.R.C.P. Part II examinations on five occasions but without success. I understand that he has now expired the time limit for retaking this examination."There is then a reference to the Appellant's qualifications and the letter ends:
"I would be grateful if you could now submit Dr Singh's request through the appropriate officers/committees at the Regional Health Authority, and inform me of your decision as soon as possible. I would also confirm that Dr Singh's current contract as Registrar - Medicine for the Elderly expires on 31 July 1990."
Mr Stewart submits that this letter, whilst disavowing any support for the Appellant's application to be considered for appointment as an Associate Specialist, or Staff Grade Doctor, nevertheless constituted a case for the Appellant's personal appointment to his existing post within the meaning of paragraph 64 of the document. We think that this submission is well founded. The response of the Regional Health Authority appears at page 39. It reads as follows:"Your letter of 25 January 1990 addressed to Mrs C Newton did not support the personal regrading to either Associate Specialist or Staff Grade Doctor of Dr S P Singh but rather sought an extension of Dr Singh's existing Registrar contract for a period of four years under paragraph 65 of "Plan for Action".The Regional Manpower Committee at its meeting on 1 March 1990 considered that Dr Singh should apply for a Staff Grade Post or for personal regrading as Associate Specialist. His Registrar appointment could be extended for a short period for these avenues to be explored but it was not considered acceptable to extend his contract for four years simply because at the present time management would not support a non-training career grade post for him.Accordingly, Dr Singh's Registrar's post will be extended for a period of six months to terminate on 31 January 1991 to enable the District Health Authority to recommend an alternative solution."We read that letter as expressing the Regional Health Authority's dissatisfaction under paragraph 65 (ii) of the document that all possibilities had been fully explored, such as retraining for another speciality, or application for a Staff Doctor post. What the Regional Health Authority, as we understand it, was saying was that they did not consider it acceptable to extend Dr Singh's contract simply because a non-training career post could be found for him. The decision to extend only by six months was, to use the words of the Regional Health Authority, to enable the District Health Authority to recommend an alternative solution. That decision by the Regional Health Authority is set out in the minute appearing at page 40.At page 41 the District Health Authority wrote to Dr Singh informing him of the decision of the Regional Health Authority and noting that there would be further discussions with Dr Chakravorty about the Appellant's future. Dr Chakravorty was the senior of the three consultants for whom the Appellant worked. On page 42 Miss Goodliffe, of the District Health Authority, informed the Appellant on the 1 May 1990 that:
".... I am therefore asking all three consultants now to reconsider your post, inform me of their collective views and we will then inform Region how we now wish the matter to be reconsidered."
We read that letter as evidence that the District Health Authority were doing precisely what the Regional Health Authority required it to do, that is to consider the matter, and recommend in Dr Singh's case an alternative solution. There followed some delay but by the 24 September 1990 there had been a meeting between the Appellant and the three consultants, the effect of which is set out in a letter from Dr Chakravorty to Miss Goodliffe dated the 24 September, page 71 in the bundle. The letter reads:
"Further to your memorandum of 13 September, 1990, regarding the above (that was a reminder which Miss Goodliffe wrote). A meeting was convened between the three Consultant Physicians in Medicine for the Elderly and Dr Singh on the 21 September, 1990, as requested by you.
The three consultants agreed that Dr Singh is a competent doctor and has been providing a valuable service but his contract is due to expire on the 31 January, 1991.He was advised to apply for General Practice and hospital posts but Dr Singh stated that he has already been applying for various posts without success.Dr Angus suggested that as we have no further advice to offer him, the Postgraduate Dean may be able to advise him further."It is of note that following the conversation the three Consultants did not recommend to the District Health Authority that a further application should be made for an extension of the Appellant's existing contract. The reason may very well be that the Regional Health Authority in its letter, page 39 in the bundle, had already indicated that it would not be considered acceptable to extend the Appellant's contract for four years, simply because management would not support a non-training career grade post for him. That was still the position in September 1990 when the Appellant met the three consultants, and it appears remained the position on the 5 October 1990 when Miss Goodliffe wrote again to the Appellant. That letter at page 43 of the bundle reads, so far as is relevant, as follows:
"I refer to your meeting on 21 September 1990 with the three consultants in Medicine for the Elderly. I understand that the consultants were able to offer you certain advice, but they have now suggested that you meet with the Postgraduate Dean.
I wish to inform you that Dr Green will in the near future make the necessary arrangements for this to happen.You will be aware that I did not recommend your post to be regraded to Associate Specialist or Staff Doctor. This was on the basis that I did not wish to see another middle grade doctor with the department. As I did not feel it would be in the best long term interest. However, this is no criticism of you, in fact I know all the consultants are appreciative of your work and I wish to place on record my thanks for your loyal service to this Unit.I have, however, agreed to a recommendation from Dr Green that you be allowed a final extension of your present contract. This will therefore expire on 31 July 1991 and there will be no further renewal. I hope that by agreeing to the above this may assist you, and allow you further opportunities to obtain an alternative position.I hope the above clarifies my position, and I sincerely hope that following your meeting with the Postgraduate Dean that you are successful in obtaining an alternative post."On page 44 of the bundle Dr Green is as good as his word, and wrote a letter to the Postgraduate Dean inviting his assistance in finding the Appellant a permanent post.We have set out the history of the Appellant's employment until its final determination on the 31 July 1991 in deference to Mr Stewart's able argument, though we have the gravest doubts that so minute an analysis of the document "Striking a Balance" was attempted before the Tribunal who it seems to us proceeded on much broader grounds when considering sub-section 3 of section 57 of the Act. But even if one subjects the documents to the detailed analysis, which both Mr Stewart and Mr Lynch gave them, we are satisfied that there was nothing unreasonable or unfair in the approach taken to the termination of the Appellant's employment.In our judgement the District Health Authority was wholly justified. First of all, in taking the view that the appointment of a further middle grade doctor would not be justified and that to resubmit an application for an extension of the Appellant's existing contract of employment against such a background, would be purposeless. This seems to have been a view which the three Consultants took when they met the Appellant and advised him in September 1990, and we think it is the right one. We think it was the right one, not only in the interests of the employer, but also in the interests of the Appellant himself. So far as the employer is concerned they needed a vacant Registrarship in order to train-up young ambitious doctors. So far as the Appellant is concerned a perfectly reasonable view might have been taken that because any extension of his then contract would necessarily be of a short term nature. It would be in his interests too that he would embark upon the re-training which he is now engaged upon, so as to equip him for a post with a degree of permanency which his present post did not, and could not, offer him.We have already said that we doubt very much whether the Tribunal in considering this matter, had the benefit of the detailed arguments of construction which were advanced to us. But we are satisfied that the Tribunal in paragraphs 7, 8, 10 and 11 of its decision drew a proper distinction between the activities of the District Health Authority as employers, and the Regional Health Authority, that they gave proper consideration to the relevant factors affecting the termination of the Appellant's employment, and that they came to a fair and just conclusion. Far from thinking that the decision embraced an error of law, or was perverse, we think it was right. In those circumstances, notwithstanding Mr Stewart's careful and persuasive arguments, this appeal must stand dismissed.