United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A H SHERIF (the Appellant in Person)


 


HIS HONOUR JUDGE J BURKE QC

1. Mr Sherif was employed by Addenbrookes NHS Trust ("the Respondents") from April 1999 to the end of December 2001 under a series of short-term contracts, which were from time to time extended and/or renewed, as a locum Orthopaedic Paediatric Consultant working in the Trauma Service.
2. By the well-known device of a service level agreement he performed some sessions for the West Suffolk Hospital Trust (a different NHS Trust); but there is no suggestion that he was employed by the West Suffolk Hospital Trust during the period of his employment by the Respondents. The Respondents during that period were his employers. They paid him and they, in effect, seconded him to some duties for the West Suffolk Hospital Trust, in return for which they no doubt received some payment or other consideration within the National Health Service structures.
3. Mr Sherif's last day of working for the Respondents was 31 December 2001. He claimed that he had been unfairly dismissed. His claim was dismissed by the Employment Tribunal sitting at Bury St Edmunds, chaired by Mr D W Skinner, in a decision which was sent with Extended Reasons to the parties on 15 October 2002. This is the Preliminary Hearing of Mr Sherif's appeal against that decision. Mr Sherif seeks at this hearing to show us that the Tribunal's decision was, in various respects, arguably in error of law.
4. Pursuant to the Practice Direction, the Respondents have put in brief written submissions which we have considered. We have a full bundle of documents provided by Mr Sherif which we have also read and considered.
5. The Tribunal found that Mr Sherif had been dismissed when the last extension of his fixed-term contract expired on the date to which we have referred. Mr Sherif has said, either in his Skeleton Argument, in his document entitled 'Summary of how the Tribunal erred in law' or in his document entitled 'Details in how the Tribunal erred in law', or in more than one of those documents, all of which we have read with care, that he was given notice of the termination of his employment on that day. He also says that after the Respondents gave him notice he gave them notice and did so in order to draw attention to the fact that he had been subjected to harassment by the Respondents.
6. Mr Sherif has also said that his last written contract expired in February 2001 and thereafter he refused, because of the harassment of him, to sign a further contract; but he has agreed in the course of argument this morning that, although he did not sign a formal document after February 2001 or indeed until December 2001, he was working for the Respondents as their employee and was being paid by them and therefore that there was a continuing contract of employment until the date of termination.
7. Mr Sherif seeks to argue that there is an error of law in the Tribunal's conclusion that the termination in this case occurred on the expiry of a fixed-term contract, as opposed to by notice. But in our judgment the precise mechanism by which he was dismissed is of no importance. It was common ground between the parties at the hearing before the Tribunal that he was dismissed by the Respondents with effect from 31 December 2001. There is no dispute about the date on which Mr Sherif ceased to work for the Respondents or on which his contract of employment came to an end. If, which is perhaps unlikely, the Tribunal misdescribed the mechanism by which the termination of his employment occurred, no arguable point of law arises therefrom. The result would, in any event, have been the same.
8. We can understand why Mr Sherif wanted to draw attention to what he said was harassment of him, but such harassment would not give rise to any argument that the Tribunal, in deciding how and when his contract of employment had terminated, had erred in law.
9. The Tribunal found that Mr Sherif's employment was always as a locum and was temporary on the basis of a series of renewals or extensions to short-term contracts, in a situation in which, because Mr Sherif was unqualified for appointment to the substantive post of Second Orthopaedic Paediatric Consultant in the Trauma and Orthopaedic Surgery departments, there being one full-time consultant in post in that area, the Respondents were unable to appoint him to that second substantive and permanent post.
10. They found that, on two occasions, the Respondents tried to fill that substantive post, firstly in March 2000 and, secondly, in the spring of 2001. On the first occasion they did not trawl any applicants; and on the second occasion they offered the post to a Dr Duffy who accepted it but then backed out very shortly before she was due to begin because she preferred to take up a different post elsewhere. Because they were unable to fill the substantive post, despite these two attempts at recruiting somebody to fill it, as the Tribunal found, the Respondents decided, instead to abandon, at least temporarily, their intention of filling the second substantive post and to cut back the work in the relevant areas so that the work coming in in those areas was better matched to their existing capacity; that capacity being one substantive filled post. The result for Mr Sherif, the Tribunal found, was long foreshadowed and indeed inevitable. His locum post had gone on longer than expected and longer than standard professional criteria allowed. The work which he was employed to do was cut back; and therefore his locum appointment was brought to an end.
11. The Tribunal decided that, although this was not the reason formally put forward by the Respondents, the reason for the dismissal was redundancy and that Mr Sherif had been fairly dismissed for redundancy. They found that the Respondents had exercised a bona fide judgment in circumstances in which they could not renew Mr Sherif's contract further.
12. Mr Sherif now seeks to attack that decision on a number of fronts, which he suggests constitute errors of law on the part of the Tribunal. However, much of what he has set out, in the documents to which we have referred, seeks to raise issues of fact and amounts to an attempt, at least in part, to rerun the factual issues which the Tribunal had to and did decide.
13. On appeal to the Employment Appeal Tribunal, unless an arguable case of perversity appears in relation to any finding of fact, the Employment Appeal Tribunal cannot reconsider the facts decided by the Tribunal below, however much an Appellant wishes them to do so. Accordingly, during the course of argument this morning, we have sought to clarify with Mr Sherif what his points of law are (and any points of perversity are) so that we can consider them and decide whether there is an arguable case in respect of any of them.
14. The first point which Mr Sherif takes is the point, or are the points, as to the mode of termination of his contract of employment. We have dealt with that point, or those points. We do not regard, for the reasons we have expressed, any such points as giving rise to an arguable case that the Tribunal erred in law.
15. Secondly, Mr Sherif submits that the Respondents blocked his further employment by harassment. Again no point of law arises there. The Employment Tribunal carefully considered whether the dismissal for redundancy was fair or unfair and Mr Sherif has not suggested, other than by his assertion that there was the harassment of which he complained, that the Tribunal erred in law in reaching the broad decision that they did on the facts in considering whether he was or was not fairly dismissed for redundancy.
16. Next Mr Sherif attacks the decision of the Tribunal that he was redundant, or that the reason for dismissal was redundancy. He puts that point in more than one way. First of all he says that the work which he did was covered by another consultant after he was dismissed, he says, as is proved by the fact that on 27 April 2002, the Respondents advertised for two posts in Trauma and Orthopaedic Surgery. It will be remembered that Mr Sherif's appointment was to a post in which he specialised in paediatric orthopaedics. Although that did not take up all of his time, he himself says in his summary document:

1 "The Appellant (Mr Sherif) was contracted with the Respondent (Addenbrooke's NHS Trust) to share the paediatric orthopaedic service with another consultant…and to share the Trauma service with other seven consultants…"

17. If we look at the advertisement it is clear that of the two posts which, by that advertisement, the Respondents were seeking to fill, one was to replace a retiring consultant (and Mr Sherif fairly does not rely on that). The other was said in the advertisement to be an advertisement to fill new development for the department. The advertisement went on to say that each appointee would contribute to emergency trauma surgery and elective surgery. One of the appointees would be expected to develop a special interest in knee surgery and the other in upper limb surgery.
18. There is no suggestion in that advertisement that the Respondents were seeking by that advertisement to appoint anybody to work even for part of his or her time in the paediatric orthopaedic service and on the face of the document it does not seem arguable that the Respondents some four months after the termination of Mr Sherif's locum post were seeking to hire somebody to replace him, as opposed to somebody else to do a different job.
19. The Tribunal found in their Extended Reasons that the Respondents had, by the end of December 2001, decided to abandon, at least temporarily, the second substantive consultant's post in orthopaedic paediatric surgery; and we do not see how it can be argued from the advertisement, and Mr Sherif has not sought to argue from any other material which was before the Tribunal, that that finding of the Tribunal could be said to be perverse or in any other way an error of law.
20. The second way in which the conclusion reached by the Tribunal, that his dismissal was for the reason of redundancy is attacked, is this. Mr Sherif submits that, because after the end of his contract with the Respondents he continued to work for the West Suffolk Hospital Trust, that in some way should have led the Tribunal to conclude that he was not redundant because part of his duties under his contract with the Respondents was maintained, albeit by arrangements made by Mr Sherif with the West Suffolk Hospital Trust, who, after he had had a period on leave at the beginning of 2002, paid him for his services to them from February 2002.
21. Mr Sherif sets out in his documents that during his time at Addenbrooke's 70% of his work was at Addenbrooke's and 30% was in sessions for the West Suffolk Hospital Trust. On the basis of the findings of the Tribunal it is clear that 70% of the totality of his work (the Addenbrooke's work) went as a result of the decision made by the Respondents which led them to terminate Mr Sherif's employment. It was, therefore, open to the Tribunal to conclude that there was a redundancy because the requirement for employees to carry out the work of the particular kind which Mr Sherif was carrying out, if it had not ceased altogether, had diminished.
22. Mr Sherif refers to the fact, as he asserted, that West Suffolk Hospital Trust was an associated employer of the Respondents. Section 139 (2) of the Employment Rights Act 1996 says that "for the purposes of subsection (1)" which defines the circumstances in which an employee shall be taken to be dismissed by reason of redundancy "the business of the employer together with the business or businesses of his associated employers shall be treated as one."
23. It is extremely doubtful whether it could be said that the two Trusts were associated employers within the definition of associated employers as set out in section 231 of the Employment Rights Act 1996. But even if they were associated employers, taking them together, nonetheless, 70% of the work which Mr Sherif was required to do had gone as a result of the Respondents' decision and therefore, taking them together, nonetheless, there was, on the facts found by the Tribunal, a redundancy within section 139 (1). We do not regard the contrary as being arguable or that it is arguable that the Tribunal made an error of law in that respect either.
24. Next, Mr Sherif submits that the Tribunal were wrong to find that he could not obtain the substantive post, which he sought but which the Respondents would not give him, because he was not accredited so as to be able to fill that post.
25. It appears from the Tribunal's decision that the Tribunal had proceeded on the basis that it was common ground that Mr Sherif was not so accredited. They do not say that in terms; but the way in which the decision was set out conveys that message to the reader. When we have probed Mr Sherif about this it has turned out that that impression represents the truth.
26. Mr Sherif has told us how originally accreditation was derived through the Royal College of Surgeons, but that the position changed; from 1997 accreditation was derived from a body called STA (Specialist Training Authority).
27. Mr Sherif has accepted that, while they need not do so, an NHS Trust may involve the accreditation body in their consideration of whether or not to select somebody for a post and that, in order to fill the substantive post he, Mr Sherif, needed to be accredited, unless he was exempt from accreditation, by the STA. He accepts too that the Tribunal approached this case on the basis that that accreditation was needed and that Mr Sherif did not have such accreditation as common ground between the parties. Mr Sherif, however, says to us that he has since discovered that he was in fact exempt from that accreditation. Thus, he says, the Tribunal proceeded on a false basis.
28. In our judgment, there is no arguable error of law on the Tribunal's part in this area. If the Tribunal, by common consent between the parties, express or implicit, proceeded on the basis, as Mr Sherif accepts, that he needed that accreditation in order to be able to fill the substantive post and that he did not have it, and if no issue of exemption was raised in front of the Tribunal, as Mr Sherif accepts that it was not, then it is not open to Mr Sherif by way of appeal to say "now I wish to take the point that I was exempt from accreditation, which point I did not take before the Tribunal". It is simply too late now for him arguably to be allowed to develop a central point, as to which there may have been considerable debate before the Tribunal, when that point was not taken before the Tribunal.
29. However, we should go on to say that it does not appear to us that it is arguable in any event that Mr Sherif was exempt, even if we thought that arguably the point could now be taken. We do not regard it as an arguable point.
30. Mr Sherif relies upon Regulation 5 (1) (d) of the National Health Service (Appointment of Consultants) Regulations 1996. That sub-Regulation says that

5 (1) "An appointment is an exempt appointment if the person appointed is –

(d) a person whose last appointment by an Authority, an NHS Trust, a Health Board in Scotland, a District Health Authority or Regional Health Authority was in a post as consultant, the termination of which employment was certified by the Secretary of State to be by reason of redundancy and who is appointed to a consultant post in England within one year of that termination of employment…"

31. Mr Sherif says that he was in a post as consultant with a previous NHS Trust before he went to Addenbrooke's. He says that he was dismissed from that post for redundancy; but he is unable to say that the termination of that employment was or has been certified by the Secretary of State as by reason of redundancy; and in any event it appears to us that it is highly unlikely that the expression "a consultant post" in that sub-Regulation is intended to embrace a locum post when the case of somebody in a locum post is catered for by Regulation 5 (1) (c) as opposed to 5 (1) (d).
32. However that may be, we regard it as far too late now, where the Tribunal proceeded on the basis that there was no such exemption, and there was no suggestion of such an exemption, for Mr Sherif to seek to advance a point of law now that he was within such exemption.
33. Finally in his documents, Mr Sherif complains that he was discriminated against on the grounds of sex, age and other matters. Those were not complaints before the Tribunal and it is not open to him to complain about them now as independent complaints. As to whether or not those were factors which went to fairness, the Tribunal dealt with the issue of fairness and reached a decision on fairness which in our judgment cannot arguably be impugned; and there is no error of law in that respect either.
34. Finally, we have taken care during the course of argument and discussion with Mr Sherif to ensure that we have correctly identified all the points of law which he wishes us to consider. He has said that the points of law which we have identified, some of which were not advanced today in argument but which we take from the documents themselves, are all the points which he wishes us to consider; and we have addressed all of those points. None of them gives rise, in our judgment, to an arguable error of law; and the appeal must therefore be dismissed.