MR G P SINHA v DONCASTER AND BASSETLAW NHS HOSPITALS TRUST [2002] UKEAT 1044_02_0412

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1044_02_0412Case No Appeal No. EAT/1044/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G P SINHAAPPELLANTDONCASTER AND BASSETLAW NHS HOSPITALS TRUSTRESPONDENT
Before
His Honour Judge J McMullenDate 4 December 2002
[1]APPEARANCES For the Appellant MR G P SINHA THE APPELLANT IN PERSON JUDGE J McMULLEN QC : The Applicant, Mr Sinha, is retired Consultant Surgeon. He has, since his retirement from full-time NHS practice, worked as a locum. As such he was recommended to the Respondent Trust by the NHS Locum Bank for a fixed term appointment from 1 August to 31 December 2000. He was duly appointed for that fixed-term on terms which included a one week notice period on either side.[2]On 25 August 2000, following the death of a patient, the Applicant was suspended on full pay and a notification of that suspension was given by the Respondent to the GMC, the Regulatory Body for the profession, and to the Locum Bank, as they were required to do in accordance with the relevant regulations.[3]The Applicant continued to receive his full salary and holiday pay until the end of his fixed-term contract.[4]On 18 April 2002 the Applicant was cleared of professional misconduct arising out of the incident on 25 August 2000 by the GMC.[5]On 3 April 2002 he presented an Originating Application which was heard before an Employment Tribunal sitting at Sheffield. He claimed outstanding wages, alleging that there was a continuing obligation on the Respondent to pay his full wages to that date and, we understand, beyond that, until October 2002. His claim was made, notwithstanding the termination of his fixed-term contract by the effluxion of time on 31 December 2000.[6]The matter came before an Employment Tribunal, chaired by Mr J.A. Pickard on 16 August 2002 for the hearing of a preliminary issue, namely, whether the Applicant remained an employee of the Respondent after 31 December 2000. By a Decision with extended written reasons dated 11 September 2002 the Employment Tribunal found that he was not. The complaint was dismissed.[7]Against that decision Mr Sinha now appeals. His argument, which is included in a skeleton argument, is essentially that the contract, the terms of which we have cited, was varied by a discussion which took place on 30 August 2000. The relevant provision of the contract is this:
"1 I am instructed by the NHS Trust to offer you the above post for a limited period from 01/08/2000 to 31/12/2000 to cover Vacant Post. . .. 17 The employment is subject to one week's notice by either side."
[8]On 30 August, following a meeting, Mr Rhodes, the Associate Manager for Orthopaedics / Accident and Emergency at the Doncaster Royal and Montague Hospital, wrote to the Applicant suspending him. He said this:
"I explained to you that you would receive full pay throughout the duration of the suspension."
A number of other conditions were imposed by Mr Rhodes in relation to the conduct of the Applicant during the course of the suspension.[9]We can understand that both parties might well have assumed that the investigation, which began after 30 August, might well have been completed before the end of the year. Sadly, it was not. The Applicant contended, therefore, that the effect of the discussion and embodied in the letter, was to vary the contract of employment so as to extend it for as long as the investigation continued. The Tribunal heard that contention. It first noted that the Applicant did not contend that the only way in which the contract could end was by the giving of one week's notice by either party. The Applicant's argument was simply that the fixed-term was extended by the relevant letter so long as the investigation into his conduct was on foot. The Tribunal recorded its sympathy for the Applicant's argument about that.[10]The practical difficulty the Applicant faced was not only suspension from the employment under which he was engaged, but that all other health authorities were alerted and he became unemployable while this matter was hanging over his head. What he seeks to do is to establish an extension of the employment relationship beyond the fixed period. The Tribunal found that the suspension and the employment came to an end on 31 December 2000. In our judgment that is correct. The language used by the Trust of suspension is apt to apply only where there is an on-going employment relationship. It really means suspension from the duty to attend work. The contract on its face continues until the end of December, during which time the Applicant is obliged to work, or obliged to accept suspension, where allegations such as were made in this case occur.[11]The Applicant's argument that the contract was varied by this letter cannot be accepted. There was no discussion about an extension of the written term in Clause 1, and it seems to us that the Trust was acting prophylactically to remove the Applicant from practice during the course of his engagement with them. If the investigation had concluded earlier, and he had been cleared, then the suspension would have been lifted and he would have returned to work for the residue of the contractual term; but it did not. In our view the exchanges on 30 August do not constitute a variation of the written term which indicated expiry of the contract by the effluxion of time on 31 December 2000.[12]In those circumstances we dismiss the appeal.