United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR AL-MUKHTAR IN PERSON and Mr MARTIN FODDER (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, as a preliminary hearing, the appeal of Mr Ameir Al-Mukhtar, on the matter of Al-Mukhtar against the Redbridge Healthcare Trust. On 22^nd October 1999, Mr Al-Mukhtar presented an IT1 for unfair dismissal and for redundancy pay. He had been employed as a Consultant General Surgeon. He said he had been employed from July 1995 until 31^st August 1999. He had begun as a Locum.
2. On 10^th November 1999. the Redbridge Trust put in its IT3. They claimed that Mr Al-Mukhtar had been dismissed simply by reason of his Locum contract having expired. He had had a fixed term contract expiring on 30^th June 1997, and from 30^th June 1997 had had a new Locum contract which, from 31^st July 1998, was on a month by month basis whilst a number of permanent posts were advertised for which Mr Al-Mukhtar was able to apply. They said that he had applied in competition with others for advertised posts but had not succeeded.
3. They said in conclusion, therefore, that Mr Al-Mukhtar was dismissed due to the effluxion of the time of his Locum contract. He was aware, they said, that his contract depended on there being a vacancy and that when the vacancy was filled his Locum contract would be terminated. Although Mr Al-Mukhtar's contract only provided normal statutory notice for five weeks, he was given ten weeks notice. There were no suitable alternative posts for Mr Al-Mukhtar to move into although Mr Snooks, the Clinical Director, did facilitate his working in the Vascular Unit at St Mary's Hospital.
4. So far as concerned the claim for redundancy pay they said

"We did not pay Mr Al-Mukhtar redundancy pay as his circumstances did not fit the statutory definition of redundancy. There was no cessation or diminution in requirements for employees to carry out work in surgery, nor was there a cessation, or intended cessation, of work within the hospital".

5. That was the basis which went forward to a hearing and on 18^th January of this year there was a hearing, and on 8^th February of this year the decision was sent to the parties. It was the decision of the Tribunal sitting at Stratford under the chairmanship of Ms Manley. At the hearing Mr Al-Mukhtar had been represented by Mr Wishart of the BMA and Redbridge by Mr Boden of their Human Resources department. The unanimous decision of the Tribunal was that Mr Al-Mukhtar's dismissal was for "some other substantial reason" under Section 98(1)(b) of the Employment Rights Act 1996 and that the dismissal was fair. Mr Al-Mukhtar's claim failed and was dismissed.
6. In looking towards the end of the period of employment, the Tribunal made a number of findings beginning at paragraph 5(iv) they said this

(iv) After discussions with the Applicant and his trade union representative, the Applicant remained working for the Respondent under a further Locum appointment from 1^st November 1998. The letter from the Respondents which confirms this states "Your Locum appointment from 1^st December will be until a substantive appointment has been made to a vacant post."

(v) The Applicant then applied for a position of a Consultant General Surgeon and was short-listed for interview on Friday 12 February 1999. Unfortunately he was unsuccessful again [that is a reference to his having been unsuccessful earlier] the successful Applicant being a Mr S Jacob. A;; these interviews had been with Advisory Appointments Committee, which was set up in statutory form for the appointment of Consultants. They include both medical and non-medical representatives of the Trust as well as a representative from the Royal College of Surgeons.

(vi) Effectively, Mr Jacob's appointment at the beginning of 1999 meant that the Trust had a full complement of Consultant Surgeons at that point. It was accepted by Mr Snooks as Clinical Director that a 6^th post had been approved by the Trust at that point and he mentioned that to the Applicant in conversation. However, he was not able to proceed with interviewing for that post, as other resources were not available such as theatres and clinics at that point.

(vii) The Applicant was aware that he had not been successful in his application for permanent Consultant Surgeon and on 21 June Mr Snooks and the Medical Director wrote to him and gave him formal notice of the termination of his contract for 31 August.

(viii) Some time shortly after that a meeting was arranged with the Applicant and there is then correspondence between the Respondents and the Applicant's trade union representative. The Applicant's employment came to an end on 31 August 1999."

7. Then in their paragraph 9, under the heading "Conclusions" the Tribunal said that the Respondents had satisfied it that

" . . the dismissal of the Applicant was for a substantial reason of a kind which justified the applicant's dismissal. This is particularly because the Applicant was in the position of Locum or a temporary post. These posts were of a limited number and, once permanent appointments had been made, it seemed unlikely that there were alternatives. For this reason, the Tribunal is satisfied that this was a substantial reason and would justify the dismissal of a person holding the position which the Applicant held."

8. They then continue in their paragraph 10 as follows

"The Tribunal then went on to consider whether the dismissal was fair or unfair in accordance with Section 98(4)."

In paragraph 11, they mention that the Tribunal accepted that the appointment of Mr Jacob in 1999 was properly made. They said

"However, the Applicant did not challenge Mr Jacob's appointment in any way and it seems clear that Mr Jacob was properly appointed on his merits."

In their last paragraph the Tribunal said

"The Tribunal are satisfied that the Applicant had every opportunity to ask questions and suggest alternatives to his dismissal, albeit that these must have been limited. Taking all the circumstances into account the Tribunal find that, on balance, the dismissal was fair."

That, as I say, was sent to the parties on 8^th February 2001.

9. On 21^st February 2001, Mr Al-Mukhtar asked that the Tribunal should review their decision. On 27^th February, the Tribunal indicated that they refused to review on the ground that the application showed no ground for a review and, no doubt prompted by that, on 22^nd March of this year, Mr Al-Mukhtar lodged a Notice of Appeal.
10. He makes a number of points in his Notice of Appeal and has also been assisted today by Mr Fodder, under the ELAAS Scheme, and we are grateful to Mr Fodder for the attention he has been able to give to the case. I should say we have heard both Mr Al-Mukhtar and Mr Fodder in support of the application. Not every ground in the Notice of Appeal requires us to deal with it expressly but the first main heading is

"I was unfairly dismissed because when I was dismissed a post of Consultant in General Surgery still existed and remains unfilled to this day. I rely on the following matters: . .

5) It is alleged by the Trust that I was dismissed due to the efflux of time. This is incorrect. My last contract was to run 1 year from 1^st November 1998 to 31^st October 1999. I was dismissed on the 31 August 1999, 2 months short of the true termination date"

11. However, it is to be remembered that the Tribunal had found as a fact that the last contract was on 1^st November 1998 "until a substantive appointment has been made to a vacant post". There was indeed an advertisement and an interview for the substantive appointment. Mr Al-Mukhtar was interviewed but a Mr Jacob got the job. That meant that the Trust had, in practical terms, a full complement. Although a sixth post had been advertised for and presumably, therefore, was such that it had finance available for it, it was held by the Tribunal, on hearing the evidence, that it had not been improper not to go ahead and interview for that sixth post because of what one might call physical constraints, the sheer lack of theatre and clinical availability. The position, therefore, was that on Mr Jacob's appointment, Mr Al-Mukhtar's contract was terminated.
12. There is no basis, as it seems to us, for his assertion that he was granted a year down to 31^st October 1999. It is true to say that, in the course of argument, a document was produced to us that suggested a longer contract than that which the Tribunal found but as that document was unsigned by either side it seems to have been merely a draft. It could be, therefore, that it was overtaken, as drafts often are. There is nothing before us to gainsay the Tribunal's decision, where it actually quoted the words of the last subsisting contract, namely "Your Locum appointment from 1^st December will be until a substantive appointment has been made to a vacant post". That was plainly not a contract that necessarily ran for a year.
13. Mr Al-Mukhtar in his main heading (6) says:-

"In paragraph 5 of the Extended Reasons, the Tribunal accepts the presence of a 6^th post. However, a Mr Snooks claim of not interviewing for the other post is factually untrue. The interview took place in February 1999, and it was for two fully accredited and fully funded posts. One post was filled by Mr Jacob and the 6^th post was left unfilled. Though legally and professionally appointable, I was excluded prior to the interview from the appointment by Mr Snooks."

14. However, it is not at all inconsistent with that that the Tribunal was correct in finding, as they did, that it was held to be open to the Trust, not to proceed with interviewing, because resources were not available such as theatres and clinics at that point. Although Mr Al-Mukhtar says that although he was legally and professionally appointable, he was excluded prior to the interview, there is nothing that foreshadows any such claim in his IT1. Therefore, it is hardly surprisingly that the Tribunal failed to deal with it.
15. Mr Al-Mukhtar says in his (7) this

"The fact is that ever since the dismissal there are two vacant Locum and substantive General Surgeon Consultant posts"

But this is not a redundancy case but a case where a fixed term contract expired, where there was competition for a fresh contract and where the Applicant failed in that competition. That is not a redundancy case. The fact, therefore, that posts have remained vacant, or even that posts have been filled, is not a relevant consideration.

16. He says in his main heading 10(ii) that if he was (which he disputed) fairly dismissed, he was dismissed on 31 August 1999 and has two months salary remaining unpaid. That is, of course, an averment which is linked to his assertion that he had a contract for a year, which the Tribunal held not to be the case. Moreover, there was no claim in his IT1 for ordinary contractual pay. He sought redundancy pay and that failed to succeed because it was not a redundancy case; there was no claim for unpaid salary.
17. The truth is that Mr Al-Mukhtar lost on the day on the facts. What we deal with is only errors of law. We can thoroughly understand that he remains very disappointed but disappointment is not an error of law. He may well have had, if what he has been telling us is well founded, possibly some claim for racial discrimination but no such claim was ever made in his IT1 and it can hardly be the fault of the Tribunal to fail to deal with a case that was never put to them.
18. The matter, he firmly believes, had rather unpleasant overtones of that kind and Mr Fodder has asked the question whether the matter was a "stitch-up", as he put it. But the contract that was found to exist was limited in the way that we have already quoted. The Tribunal accepted Mr Snook's evidence about him not being able to proceed with interviewing because of the want of theatre and clinics at that point. We do not think it is necessary for a Tribunal to spell out in more detail than that why one body of evidence has been accepted and some other body of evidence declined to be accepted. That is a sufficiently explicit dealing with the point to make it plain why one party has won and the other has lost.
19. Mr Fodder also emphasised the contractual point that there was a written document in existence that suggested a longer contract than that found by the Tribunal but, as we have pointed out, it was unsigned and could well, therefore, have simply been overtaken in the course of negotiations.
20. Mr Fodder also says that the sixth post was filled in February of 2000. That, in fact, would seem to conflict with the Notice of Appeal, which said that there continue to be vacancies, However, it matters not what the position was in February 2000. The position the Tribunal was dealing with was a position at an earlier date and, of course, the hearing was on 18^th January 2001, when they heard evidence of the earlier period and dealt with the position of the sixth post in the way that we have quoted.
21. Doing the best we can to look at the arguments presented in the Notice of Appeal and orally today, we have found nothing that we could describe as arguable, something suggesting, in other words, an arguable possibility of an error of law. So, even at this preliminary stage, we must dismiss the appeal.