Mr M Smith v Derby & Derbyshire Local Medical Committee Ltd Heard: Via Cloud Video Platform in the Midlands (East) Region — 2022

The claimant, Mr M Smith, was employed by Derby & Derbyshire Local Medical Committee Ltd as Business Support Director from 23 November 2020 until his dismissal with immediate effect on 27 May 2021 during his probationary period. Before the merits hearing, the respondent’s response had been struck out for non-compliance with case management orders and failure to respond to tribunal correspondence. Employment Judge Ayre refused relief from sanction under Rule 38(2), finding multiple failures by the respondent’s representatives and concluding that a fair trial was not possible within the hearing window if the respondent were allowed full participation.

On the breach of contract / wrongful dismissal issue, the tribunal found that the claimant’s contract contained a nine-month probationary period and allowed termination during probation on one week’s notice or payment in lieu. It also expressly reserved the respondent’s right not to apply its full capability and disciplinary procedures during probation. The claimant had already been paid one week’s pay in lieu of notice, so the respondent had complied with the contract. The tribunal therefore dismissed the wrongful dismissal claim, and said the claimant’s complaints about natural justice and the adequacy of the dismissal grounds were matters that would have been relevant to an unfair dismissal claim, not to this contractual claim.

On the unlawful deduction from wages claim, the tribunal accepted that the claimant worked an additional 30 days during the Covid-19 period and was unable to take TOIL because of workload pressures. It found that there had been an agreement with Dr Peter Williams and Dr Peter Holden that unused TOIL could be carried forward or, if not taken, paid as overtime. The tribunal did not accept that the handbook requirement for prior authorisation and use of overtime forms defeated the claim on these facts. As the claimant had not been paid for the additional time when his employment ended, the tribunal held that there had been an unlawful deduction from wages under section 13 ERA 1996.

The tribunal calculated the award by reference to the claimant’s FTE gross salary of £55,000, using an online salary calculator to derive a net daily rate of £154.09. It awarded 30 days’ net pay, totalling £4,622.70, and ordered the respondent to pay that sum to the claimant. No separate award was made for the dismissed wrongful dismissal claim.