Dr M Bicknell and The British Medical Association v NHS Nottingham and Nottinghamshire Integrated Commissioning Board: 2602790/2020
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 2022 |
| Date | 29 July 2022 |
| Court | Employment Tribunal |
| Published date | 23 August 2022 |
| Subject Matter | Protective Award |
Case Number: 2602790/2020
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EMPLOYMENT TRIBUNALS
Claimants: Dr Marcus Bicknell (C1)
The British Medical Association (C2)
(a) Respondent: NHS Nottingham and Nottinghamshire Integrated
Commissioning Board
Heard at: Midlands East Tribunal via Cloud Video Platform
On: 11, 12, 13, 14 and 21 July 2022
Before: Employment Judge M Brewer
Mr C Williams
Mr K Rose
Representation
Claimants: Ms N Motraghi, Counsel
Respondent: Mr D Bayne, Counsel
JUDGMENT
It is the unanimous judgment of the Tribunal in relation to the claims by Dr
Bicknell that:
1. The claim for automatic unfair dismissal fails and is dismissed.
2. The claim for dismissal contrary to Regulation 7(2) of TUPE fails and is
dismissed.
3. The claim for ‘ordinary’ unfair dismissal succeeds.
4. The claim for breach of contract fails and is dismissed.
It is the unanimous judgment of the Tribunal in relation to the claim by the
British Medical Association for breach of Regulation 13 (2) and 13(6) TUPE that
the claim fails and is dismissed.
Case Number: 2602790/2020
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REASONS
Introduction
1. These claims were heard over five days. Day one was a reading day and we
heard evidence and submissions over the next four days.
2. The claims were originally brought against NHS Nottingham City Clinical
Commissioning Group and NHS Nottingham and Nottinghamshire Clinical
Commissioning Group. However, by the time of the final hearing neither of
those organisations existed.
3. NHS Nottingham City Clinical Commissioning Group ceased to exist on 31
March 2019 when it merged with other clinical commissioning groups in the
Nottinghamshire area to form what was originally the second respondent, NHS
Nottingham and Nottinghamshire Clinical Commissioning Group. In turn, the
original second respondent has now been replaced by NHS Nottingham and
Nottinghamshire Integrated Care Board.
4. In this judgement we shall use the following nomenclature:
a. NC CCG for NHS Nottingham City Clinical Commissioning Group
b. NN CCG for NHS Nottingham and Nottinghamshire Clinical
Commissioning Group and
c. NN ICB for NHS Nottingham and Nottinghamshire Integrated Care
Board.
5. One issue that arose at the outset of the hearing and which we discussed with
the parties was the extent to which NN ICB could have liability for things done
by either of the original two respondents. We recognised that if there had been
a relevant transfer from NC CCG to NN CCG and then again from NN CCG to
NN ICB liability may track through because of the operation of TUPE. However,
having had a reading day and looking at the agreed list of issues, it was not one
of the matters for us to determine whether there was a TUPE transfer from NN
CCG to NN ICB and without evidence on the matter it was difficult to see how
we could determine that the current respondent was potentially liable and
therefore whether they should in fact be a respondent at all.
6. Mr Bayne reasoned that if the tribunal found that there had been a TUPE
transfer between NC CCG and NN CCG he would be in considerable difficulty
arguing that there was not a TUPE transfer to the current respondent, NN ICB.
It also followed of course that if we found that there was no TUPE transfer from
NC CCG then the current respondent would have no liability in any event.
7. Having thus discussed the matter, it seems to us that the conclusions can be
summarised as follows: the respondent’s case was that there was no TUPE
transfer from NC CCG to NN CCG and likewise no TUPE transfer from NN
CCG to NN ICB, but if the tribunal determines that there was a TUPE transfer
from NC CCG to NN CCG, the respondent would not argue that that was no
Case Number: 2602790/2020
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TUPE transfer from NN CCG to it. It was on that basis that Ms Motraghi on
behalf of the claimants agreed that there was no need for the tribunal to
determine the issue of whether there was a TUPE transfer from NN CCG to NN
ICB and we have not done so.
8. We had written witness statements and heard oral evidence from Dr Bicknell,
Ms Shazia Karim on behalf of the British Medical Association (BMA), and for the
respondent, from Ms Sarah Carter who, at the relevant time, was Executive
Director - Transition Operations, HR and Organisational Development, Dr John
Porter who, at the relevant time, was Clinical Chair of NC CCG, Dr Stephen
Shortt who, at the relevant time was Clinical Chair of Rushcliffe CCG and Mr
Stephen Wright who was and remains Head of Human Resources Business
Partners for NHS Arden and Greater East Midlands Commissioning Support
Unit.
9. The tribunal had a bundle of documents which with additional documents added
during the course of the hearing ran to over 1500 pages.
10. As well as the above the tribunal have also taken account of the careful and
detailed submissions of both Counsel and we wish to express our thanks to
them for their assistance during the course of the hearing in navigating what are
complex issues.
Issues
11. The parties agreed a list of issues which we have attached as an appendix to
this judgement. We simply note here that the claims being pursued by Dr
Bicknell are:
a. automatic unfair dismissal (Regulation 7(1), Transfer of Undertakings
(Protection of Employment) Regulations 2006 (TUPE))
b. unfair dismissal (Regulation 7(2), TUPE)
c. unfair dismissal (section 98, Employment Rights Act 1996 (ERA))
d. breach of contract (Article 3, Employment Tribunals Extension of
Jurisdiction Order 1994).
12. The BMA brings a claim for failure to inform and/or consult under Regulation 13
of TUPE.
Law
TUPE – relevant transfer
13. Regulation 3 TUPE defines relevant transfer as follows:
“3 A relevant transfer
(1) These Regulations apply to –
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