Amar Alwitry v The States Employment Board

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith,Jurats Olsen,Grime
Judgment Date06 February 2019
Neutral Citation[2019] JRC 14
Date06 February 2019

[2019] JRC 14

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Olsen and Grime.

Between
Amar Alwitry
Plaintiff
and
The States Employment Board
Defendant

Advocate S. M. J. Chiddicks for the Plaintiff.

M. Temple, Esq., Solicitor General for the Defendant.

Authorities

Employment of States of Jersey Employees (Jersey) Law 2005.

Data Protection (Jersey) Law 2005.

Administrative Decisions Review (Jersey) Law 1982.

The Parish of St Helier v The Minister for Infrastructure [2017] JCA 027.

Regina v Hull University Visitor [1992] I.C.R. 67.

McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129.

Grove and Briscoe v Baker [2005] JLR 348.

Johnson v Unisys Limited [2001] 2 WLR 1076.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58.

McDonald v Parish of St Helier [2005] JRC074.

Pothier Traite des Obligations (1821).

La Petite Croatie Limited v R.P. Ledo and A.K. Ledo [2009] JLR 116.

La Petite Croatie Limited v R.P. Ledo and A.K. Ledo [2009] JCA 221.

Midland Bank Trust Company (Jersey) Limited v FPS [1995] JLR 352.

Persimmon Homes Limited & others v Ove Arup & Partners Ltd [2017] EWCA Civ 373.

Chitty on Contract, 33rd Edition.

Freeth v Burr [1878] LR 9 CP 209.

Malek v Bangor Credit and Commerce International (A) [1998] AC 20.

McDonald v Parish of St Helier [2005] JRC 074.

Neary v Dean of Westminster [1999] IRLR 228.

Briscoe v Lubrizol Ltd [2002] IRLR 607.

Omilaju v Waltham Forest London Borough Council [2005] I.C.R.481.

Human Rights (Jersey) Law 2000 (European Convention on Human Rights).

Employment (Jersey) Law 2003.

Employment Rights Act 1996.

Cobley v Forward Technology Industries plc [2003] WCA Civ 646.

Abernethy v Mott, Hay & Anderson [1974] ACR 323 at 330.

Perkin v St George's Health Care NHS Trust [2006] ICR 616 CA.

Ezsias v Northern Glamorgan NHS Trust [2011] IRLR 550 EAT.

Kerslake v North West London Hospital NHS Trust [2012] EWHC 1999 (QB).

Jeanne v Jersey Telecom Limited [2009] JCA 138.

Addis v Gramophone Co Limited [1909] AC 488.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust and Botham v Ministry of Defence [2012] 2AC 22.

King v University Court of the University of St Andrews [2002] IRLR 252.

Rookes v Barnard [1964] AC 1129.

West v Lazard Brothers [1993] JLR 165.

Hayden-Taylor v Canopius Underwriting Limited and others [2014] JRC 221.

Employment — breach of contract.

INDEX

Paragraphs

1.

Factual overview up to dismissal

6–20

2.

Factual overview after dismissal

21–35

3.

Facts as shown by documentary evidence

Interview

36–42

Start date

43–56

Job plan

57–77

Termination of contract

78–102

4.

Evidence of witnesses

Mr Alwitry

103–144

Mr McLaughlin

145–159

Mr Downes

160–188

Mr McNeela

189–198

Dr Luksza

199–205

Mr Siodlak

206–223

Mrs Body

224–233

Mr Riley

234–253

5.

Contract of employment

254–266

6.

Construction of contract of employment

267–287

7.

Did Mr Alwitry repudiate his contract of employment?

288–319

8.

Whistleblowing

320–329

9.

Was the SEB entitled to terminate Mr Alwitry's contract of employment for cause under Schedule 18.2.1?

330–342

10.

Summary on liability

343–344

11.

The Johnson Exclusion Area

345–366

12.

Exemplary or punitive damages

367–373

13.

Conclusion

374

THE COMMISSIONER:
1

By his Order of Justice of 13 th January, 2017, the plaintiff (“Mr Alwitry”) brings claims of breach of contract, tortious conspiracy to and/or inducement to cause the defendant (“the SEB”) to breach his contract of employment and/or defamation of him, arising out of his employment by the SEB in 2012 and for which he claims punitive or exemplary damages.

2

On 20 th July, 2018, the Court ordered that the trial should be limited to the issue of liability and whether Mr Alwitry's claims in damages (estimated by him at just under £8M) come within what is known as the “Johnson Exclusion Area” and is therefore limited to the contractual notice period, together with what is known as the “Gunton Extension”.

3

Shortly before the hearing, Mr Alwitry gave notice that the claim in defamation was to be limited to a single letter dated 15 th November, 2012, as pleaded in paragraph 93(b) of the Order of Justice, and withdrew the remaining claims in defamation.

4

The hearing took place between the 19 th September and the 2nd October 2018. On 27 th September, 2018, after evidence had closed, Mr Alwitry withdrew the remaining defamation claim and the claims relating to tortious inducement of breach of contract and tortious conspiracy, leaving extant only his claim in breach of contract and his claim for punitive/exemplary damages.

5

Before we go into detail of the events in question, it is helpful to set out a brief summary by way of overview of the facts which are not in dispute.

Factual overview up to dismissal
6

The SEB is a body corporate, established under the Employment of States of Jersey Employees (Jersey) Law 2005, whose function, inter alia, is to employ persons on behalf of the States of Jersey. Its functions in relation to employment of staff at the General Hospital had been delegated to the Health and Social Services Department (“the HSSD”). At the material time the chief executive officer of the HSSD was Ms Julie Garbutt.

7

At the material time the relevant persons holding management positions at the General Hospital comprised Mr Andrew McLaughlin, interim managing director, Mr Martyn Siodlak, an ENT surgeon and joint medical director, Dr Andrew Luksza, a senior physician and joint medical director, Mr Richard Downes, a consultant ophthalmologist and clinical director, Mr Anthony Riley, a human resources director of the HSSD (which includes the General Hospital) and Mrs Angela Body, the director of operations. Medical directors rank above clinical directors.

8

Mr Alwitry, who was brought up and educated in Jersey, is a consultant ophthalmologist and in 2012 was employed as a consultant ophthalmologist at Derby Hospitals NHS Foundation Trust (“the Derby Hospital”). He has four young children and his wife, a general practitioner, was employed at the East Leake Health Centre in Derby.

9

Mr Alwitry had undertaken locum cover in the Ophthalmic Department of the General Hospital in 2008 and 2009, and knew the two consultants in that department, namely Mr Downes and Mr Bartley McNeela. Mr Alwitry's father, now retired, had also been a consultant ophthalmologist working in that department.

10

In or around June 2012, the General Hospital advertised a vacancy for the permanent appointment of a third consultant ophthalmologist. Mr Alwitry was interviewed on 1 st August, 2012, and was the successful candidate. He was offered the post on 8 th August, 2012. Issues arose over the date upon which he would start work as a consultant, but on 15 th August, 2012, it was agreed that he would start work on 1 st December, 2012, on a part-time basis, three days a week, moving to full-time work on 11 th February, 2013.

11

He gave three months' notice of his resignation from his post at the Derby Hospital on 21 st August, 2012 and signed his contract of employment with the SEB on 24 th August, 2012. It is not in dispute that it came into force unconditionally.

12

Issues then arose over the agreement of Mr Alwitry's “Job Plan”, which sets out the “Programmed Activities” or “PAs” for short, each lasting four hours, which he would undertake from 11 th February, 2013.

13

On 9 th October, 2012, Mr Downes e-mailed Mr Alwitry confirming that the Job Plan he had issued to Mr Alwitry on 24th September 2012 “will be implemented” and warning Mr Alwitry “that making too many demands at this stage of your appointment is unlikely to bode well for your future relationships in the organisation!”

14

Mr Alwitry telephoned Mr Downes the next day, 10 th October, 2012, verbally accepting the Job Plan, a conversation that Mr Downes cannot recollect, and on the same day, Mr Alwitry contacted the British Medical Association (“the BMA”), the doctors' trade union, for its advice, in particular over the number of PAs he had been given in the Job Plan, namely 11.5, when his contract stipulated he would have to work 10 PAs.

15

In late October 2012, Mr McLaughlin, through Mr Riley, sought legal advice from the Law Officers' Department as to the risks and consequences of withdrawing a job offer. That advice was that Mr Alwitry's maximum legal remedy would be limited to his salary over the three months' notice period and any incurred costs associated with his move to Jersey.

16

On Monday 12 th November, 2012, and at Mr Alwitry's request, the BMA contacted Mr Brian Jones, a medical staffing manager at the General Hospital, to discuss “a delicate issue” surrounding Mr Alwitry, who had “run into a few problems with the consultant lead”, which he would like to apprise him of, for the purpose of “avoiding any future conflict”. On Tuesday 13 th November, 2012, a meeting took place at the General Hospital between Mr McLaughlin, Mr Siodlak, Dr Luksza and Mr Riley, in which it was agreed to withdraw Mr Alwitry's offer of employment. Mr Downes was not present at the meeting, because he was attending a conference in the United States.

17

Having referred the matter to the SEB for its support, Mr Riley wrote to Mr Alwitry on 22 nd November, 2012, withdrawing what he described as the offer of employment and stating that any contractual relationship to the extent that it existed was to be treated as terminated.

18

It was agreed by the parties that an important part of the background to the contract of employment of Mr Alwitry, and which forms part of the matrix of facts, is the Verita...

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3 cases
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    ...Esq., Solicitor General, for the Appellant. Advocate S. M. J. Chiddicks for the Respondent. Authorities Alwitry v States Employment Board [2019] JRC 014. Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 All ER 278. Gunton v Richmond-upon-Thames LBC [1981] Ch 441. McDonal......
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