Doryce Yovonie v East Sussex Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 20 October 2023 |
| Neutral Citation | [2023] EWHC 2618 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2018-004632 |
[2023] EWHC 2618 (KB)
THE HONOURABLE Mr Justice Bourne
Case No: QB-2018-004632
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Doryce Yovonie (Acting in person) for the Claimant
Rehana Azib KC (instructed by Bevan Brittan LLP) for the Defendant
Hearing date: 10 th October 2023
Approved Judgment
This judgment was handed down remotely at 10am on 20 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Bourne
Introduction
The Claimant applies for permission to amend her claim. There are notices of application dated 4 June 2019 and 21 March 2023 but she has clarified that they are versions of the same application and the later version is the relevant one. There is a cross-application dated 31 January 2023 by the Defendant, seeking an order for the claim to be struck out if the Claimant's application succeeds and, in any event, a Civil Restraint Order (“CRO”) against the Claimant.
The Claimant has sought to characterise the Defendant's application as a counterclaim which would require permission under CPR 20.4 but she is wrong about that. It is an application, not a counterclaim.
Background
It is necessary to summarise the procedural history. Where I refer to facts, these are facts found by previous tribunals and courts in the case.
From 6 September 2005 the Claimant was employed by the Defendant as a G grade nurse. Initially her pay was determined under what was known as the Whitley Council system. From 1 December 2005 the NHS Agenda for Change (“AfC”) was implemented, bringing in a different scale which determined her pay and pension entitlements. The Claimant has alleged that she did not start at the right point on the new scale because of a failure to take into account her qualifications as an occupational health nurse and her experience in areas including infectious diseases, sexually transmitted diseases and tropical diseases. In 2013 there was a review of her performance and she complained about her treatment in respect of pay. From 2 October 2013 she took sick leave for work-related stress. An NHS process for redeployment was followed but she did not obtain a new post and was given notice of termination of her employment on 26 March 2014. After an 8 week notice period her employment terminated at the end of May 2014, just over 9 years and 4 months ago.
The Claimant made a claim to the ET on 23 July 2014. She initially complained of unfair dismissal, discrimination on grounds of sex, race and disability and a failure to give her equal pay for like work. Most of her particulars of claim were concerned with discrimination and harassment in relation to her work, sick absence and dismissal. She also alleged that while she had started at the bottom of her pay scale and would not reach the top until September 2014, “my white Band 7 female counterparts reached the top of their Band 7 pay band many years before me with less qualifications and practical skills” and “my Band 7 white male counterpart with no Team Leader responsibilities is on a Band 8 pay scale”. Her claim also included an allegation of unlawful deductions from her pay.
In due course she withdrew the claims of discrimination on grounds of sex, race and disability (save in respect of equal pay). After a 4 day trial, the surviving claims were all dismissed on 15 June 2015. In particular the ET made a finding that she was correctly placed at Band 7 on the AfC scale and at the appropriate pay point. Her initial contract had, by mistake, slightly overstated her correct salary and at that point she was paid the correct amount rather than the higher amount, but in any event this did not affect her regrading under AfC. The ET also found that the comparators received pay appropriate to them because of their experience and qualifications.
The Claimant filed a notice of appeal to the Employment Appeal Tribunal (“EAT”), on 3 grounds: 1) failure to treat a unilateral variation of her pay as an unlawful deduction or breach of contract, 2) no evidence to support a finding that she had been offered a job in the redeployment process and 3) failure to apply the correct test for unfair dismissal. After a preliminary hearing before Singh J (as he then was), she was given permission to proceed on ground 1 only.
The appeal was dismissed on 25 February 2016 by Judge Eady QC (as she then was). She found that the ET made no error of law in finding that the Claimant had been paid the correct Whitley amount at the start and/or had impliedly agreed to a variation of her contract correcting the mistake, or in finding that she was placed at the correct pay point under AfC.
An application for permission to appeal to the Court of Appeal on two grounds was dismissed on 5 April 2017 by Burnett LJ (as he then was). He noted that the first ground reproduced ground 1 before the EAT but that none of her points cast doubt on the finding that she had been paid in accordance with her contractual terms. Ground 2 had not been allowed to proceed in the EAT and could not now be resurrected. He ruled that the application was “totally without merit”, meaning that the Claimant could not renew her application at an oral hearing.
She then applied to the Administrative Court for permission to seek judicial review, challenging the lawfulness of the decision of Burnett LJ. On 14 August 2017 permission was refused by Warby J (as he then was). He explained that the Administrative Court, which is a sub-division of the High Court, does not have jurisdiction over decisions of the Court of Appeal. He certified the permission application as being “totally without merit”, again meaning that the Claimant could not renew her application at an oral hearing.
Undeterred, on 15 January 2018 the Claimant issued a claim in the High Court. The Claim Form stated:
“Brief details of claim
During my employment between 6 September 2005 to 21 May 2014, unbeknown to me, the Defendant:
1) Breached my Contract of Employment;
2) Breached the Equality of Terms;
3) Breached the Sex Equality Clause;
4) Wrongfully Dismissed me and Terminated my Contract of Employment.
I am therefore claiming for:
a) Equitable damages for wages shortfall arrears backdated pensions, calculated in accordance with Agenda for Change job evaluation scores and backdated to my start date of 6 September 2005.
b) Damages for past and future loss of earnings and pensions adjustments with interest.
c) Declaration to expunge the stigma of my dismissal and damage to professional reputation.
d) All Costs for bringing proceedings
e) Interest pursuant to s35A of the Senior Courts Act 1981.”
In her Particulars of Claim at paragraph 20 the Claimant said: “During disclosure process and ET hearing, I discovered from the Defendant's disclosure that the Defendant substantially underpaid me during my entire employment period of 8 1/2 years with them”. She again contended that she was wrongly placed at the lowest point on the G grade scale and that her AfC regrading disregarded her qualifications while others were too highly graded. She also alleged that one of her comparators, a Mrs Hunt, altered her contract to show her as a “Bank” nurse in order to facilitate her own application for a vacant post of Nurse Consultant, and that the Trust “misappropriated her certificates” so as effectively to allow Mrs Hunt to acquire her qualifications so that she could be matched to that job.
On 26 April 2018 the Defendant applied for the claim to be struck out or for summary judgment in its favour, and for costs, and for a CRO, contending that the issues of fact and law had already been determined against the Claimant and/or were outside the High Court's jurisdiction and/or were out of time.
That application was heard on 27 July 2018 by Judge Bidder QC, sitting as a Deputy High Court Judge. He set out the previous history, though he did not refer to the judicial review application or the order of Warby J. He stated:
“10. She says that she did not realise that she had been completely misled about what her level wages should be until actually, as far as some of it is concerned, after she had appealed to the EAT. Although it seems to me that what she is saying is that she did understand there had been a misplacement of her salary range as of the Employment Tribunal but there was either a deliberate fraud by an immediate supervisor who herself was interested in getting a better job and, therefore, had a better job not to apply the proper scoring under the tool scales to be applied to her and that was deliberate fraud or, at the very least, concealment. That is therefore her effective claim against the defendants.”
Judge Bidder considered the words “unbeknown to me” in the brief details section of the Claim Form, and said:
“27. I should say, those words, ‘unbeknown to me’ is not entirely accurate. I accept from her that she did not know she had been misplaced on the scales as she now contends, but she could have discovered that for herself at the time because she could have worked out what her salary should have been knowing her qualifications and experience by reference to the Whitley Council scales and the AFC scales. It would, I accept, be unusual for an employee to have gone to the rather complex scales that were then available but these were published scales. She did not do so at that time but what she does say is that she was told that her salary was a certain salary and that was misleading. That she was told that in a letter which was written on the very same day and that the person who wrote the letter had made calculations which unquestionably should have put her above that scale in...
To continue reading
Request your trial