Nabili vs Southern Health & Social Care
| Jurisdiction | Northern Ireland |
| Judgment Date | 23 September 2009 |
| Respondent | Southern Health & Social Care |
| Docket Number | 01613/07IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1613/07
CLAIMANT: Dr. Aqdas Nabili
RESPONDENT: Southern Health & Social Care Trust
DECISION
The unanimous decision of the tribunal is that the respondent was in breach of the employment contract in that it failed to give appropriate notice of termination and failed to provide the correct amount of paid annual leave. Damages of £5,577.84 are awarded to the claimant, being £4,850.30 in respect of pay in lieu of notice and £727.54 in respect of contractual annual leave.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mr J Nicholl
Mr J Hampton
Appearances:
The claimant appeared in person.
The respondent was represented by Mr F O’Reilly, BL, instructed by the Directorate of Legal Services for the Trust.
Facts Not in Contention
(1.) The claimant is and was at all material times a Consultant in paediatric medicine. She qualified as a Consultant in February 1998 and since that date has worked in the NHS, primarily as a locum engaged through medical staffing agencies. She was a direct NHS employee for three years from 2000-2003 and for the period during which she was employed by the respondent.
(2.) The respondent is an NHS Trust which incorporates the former Newry and Mourne Trust and is responsible for acute paediatric services delivered at Daisy Hill Hospital and for community paediatric services delivered at John Mitchell Place in Newry.
(3.) The respondent employed three Consultant Paediatricians in early 2006. It needed five Consultant Paediatricians but experienced difficulty in filling the two additional posts. Several recruitment competitions had failed to result in an appointment. There was some discussion between the respondent and a medical staffing agency (Minutes Medical) in early 2006 in which the agency offered the claimant’s services to the respondent but the respondent was unable to meet the introduction and other fees suggested by the agency. The claimant then worked as a locum through that agency with another NHS Trust in England.
(4.) In circumstances, which even after hearing five witnesses and after examining substantial documentation, are not entirely clear to this tribunal, the claimant was contacted directly by the respondent, in or around October 2006, to see if she was available to work for them as a directly employed locum Consultant, rather than through an agency. The claimant arrived in Newry on 20 November 2006 and the respondent regards her employment as having started on that date.
(5.) The claimant had an initial discussion with Dr Al Jarad, who, as Clinical Director in paediatric medicine, would be her line manager. He explained that the post on offer involved mainly community paediatric duties i.e. dealing with children with attention deficit disorder or autism, child abuse cases etc in an office in the respondent’s building in John Mitchell Place. The post also included on-call duties in acute paediatric medicine i.e. dealing with very ill children in Daisy Hill Hospital. Those acute on-call paediatric duties were at that point shared between the three Consultant Paediatricians then employed by the respondent. This resulted in a one in three rota. With the addition of the claimant, that became a rota of one in four.
(6.) The claimant then met Dr Loughran who as Medical Director was one step higher in the management chain than Dr Al Jarad. Mrs Siobhan Hynds, who worked in the respondent’s HR Department, was also present at that meeting. There was a discussion about salary and travelling expenses. The claimant then took up her duties. The basic salary paid to the claimant throughout her service with the respondent was £85,153.
(7.) On 20 January 2007, the respondent told the claimant that she was no longer required for on-call duties in acute paediatric medicine and the claimant was neither offered nor paid for such duties after that date. The claimant did not ask to resume those duties and thereafter worked as a Community Paediatrician in John Mitchell Place.
(8.) The respondent, in two separate letters dated 25 April 2007, gave the claimant notice of termination to take effect on, firstly 30 May 2007 and secondly 30 June 2007. The latter was the intended date of termination.
(9.) The claimant did not attend work for the respondent during June 2007 and was only paid up to 15 June 2007.
(10.) The claimant lodged a grievance with the respondent on 29 June 2007. That grievance raised a range of issues, including the issues before this tribunal. That grievance was heard on 9 June 2007 and was rejected.
The Issues
(11.) The claimant alleged that the respondent had been in breach of contract in that it had ;-
(I) failed to give sufficient notice to terminate her contract of employment;
(II) failed to pay salary from the period of 15 June 2007 to 30 June 2007;
(III) paid a lower salary than that agreed between the parties and/or properly due under the contract of employment;
(IV) failed to allow the claimant’s full contractual leave entitlement;
(V) failed to pay an agreed sum for travelling expenses;
(VI) removed the claimant from on-call duties and failed to pay on-call payments.
(12.) It could ordinarily be assumed that a claim of this nature, alleging specific breaches of contract, could be readily and simply resolved by reference to firstly, straightforward factual situations and secondly, to either a clear written contract of employment or to clear written agreements signed by the parties. Unfortunately this did not happen in the present case for a variety of reasons, some of which are set out below;-
(I) The respondent appointed the claimant without first ensuring that a written contract of employment was settled and signed by the parties.
(II) The claimant was appointed without a competition and there was therefore no contemporaneous documentation setting out the job content, pay, or travelling expenses arrangements.
(III) The Trust failed to record, and require the claimant to sign, a non-standard arrangement in relation to travelling expenses.
(IV) The respondent failed to properly record the circumstances in which the claimant ceased on-call duties in acute paediatric medicine.
(V) The respondent failed to make a contemporaneous and detailed record of how the claimant’s salary point had been calculated. The tribunal had to ask, on the third day of the hearing, for that calculation to be prepared and presented in writing. The tribunal heard evidence at different stages in the hearing that the claimant had on 20 November 2006 accumulated service as a Consultant of, variously, 9 years, 8 years and 2 months, 8 years and 4 months and at one point it was apparent that the respondent was not entirely sure what service the claimant had accumulated on the date of her appointment. The correct salary point was initially given in evidence to be £85,153 but by the fourth day of the hearing, this evidence was revised and the Trust asserted that the correct salary point was £79,812.
(VI) Mrs Hynds, the Trust’s HR Officer, whose office was close to that of the claimant, sent an unsigned copy of a contract of employment by post to the claimant’s London postal address in February 2007 rather than simply handing the contract to her with the view to having it signed. In any event, no contract was ever signed by both parties and this is a situation which could easily have been avoided.
(VII) The claimant, for her part, failed to appreciate the limits of the tribunal’s jurisdiction in this case. Despite repeated instructions from the Chairman she continued to attempt to introduce issues which were entirely outside the scope of the breach of contract claims which were before the tribunal. These extraneous matters included her failure to be short-listed in a competition for a substantive post as Consultant Paediatrician with the respondent, her pay and conditions when working previously for a medical staffing agency in other NHS Trusts, her views on appropriate staffing levels within the NHS, an alleged breach of confidentiality when an unsigned copy of the employment contract was left for her at her workplace, the fairness or unfairness of her termination etc.
(11.) The failure on the part of the respondent to...
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