The Facts

Mr Palmer was employed by East and North Hertfordshire NHS Trust (“The Trust”) as a Consultant Surgeon. In July 2003 he was suspended on full pay after concerns about his clinical skills. Whilst suspended, the Trust refused to allow Mr Palmer to return to work or undertake a refresher placement unless he accepted the position of Associate Specialist (a demotion).

Mr Palmer remained suspended until February 2009, when the Trust sent a notice of retirement to him informing him that he would be retired on his 65th birthday later that year. The Trust’s retirement policy allowed employees to request to work beyond the age of 65. Mr Palmer made such a request. The Trust said that it would only accept Mr Palmer’s request on condition that he accept the inferior Associate Specialist position. Mr Palmer refused and accordingly his employment came to an end.

Mr Palmer brought claims of unfair dismissal and age discrimination in relation to his suspension, his treatment whilst suspended and his ultimate dismissal.

The decision

The Tribunal found in favour of Mr Palmer in respect of both claims. It held that, over the course of six years, the Trust had discriminated against Mr Palmer through its actions which culminated in his unfair dismissal.

The Tribunal found that the Trust had played “a waiting game” in the knowledge that Mr Palmer would reach 65 years of age and so could be forcibly retired. The Tribunal found that Mr Palmer’s age had been used against him as a means of securing the Trust’s desired outcome, namely the termination of his employment. The Tribunal found that the Trust did not properly consider his request to work beyond 65 and the offer to employ Mr Palmer as an Associate Specialist was not a genuine one. The Trust knew that Mr Palmer would never accept it.

The Tribunal was required to consider the issue of an award of appropriate compensation.

The Tribunal found that Mr Palmer would have continued working until age 70 if his request to continue working had been properly considered by the Trust.

Mr Palmer had lost opportunity to perform any private practice work. The Tribunal held that it would have taken until April 2009 for Mr Palmer to regain his rights to work in private practice. His earnings in the first year would have been limited to £37,500 and would rise to £75,000 per annum up until his proposed retirement age of 70. The Tribunal made further awards for pension and interest.

Mr Palmer said that he had suffered depression as a result of the long period of professional and social exclusion that he endured during his suspension. The Tribunal awarded Mr Palmer compensation for injury to feelings of £15,000.

The Tribunal also ordered the Trust to pay £5,000 in aggravated damages to Mr Palmer. Aggravated damages are typically only awarded in cases where discrimination has been long running and sustained. This was appropriate in this case, as the Trust’s refusal to consider the return of Mr Palmer to his role was motivated “by malice or spite”. The Tribunal also noted that the Trust had repeatedly failed to issue an apology to Mr Palmer and so an award of aggravated damages was justified.

The Tribunal also ordered the Trust to pay a £5,000 in exemplary damages to Mr Palmer. Exemplary damages are awarded in cases where there has been an oppressive, arbitrary or unconstitutional act by government servants or wrongful conduct calculated to yield a benefit in excess of the compensation the claimant would receive. The Tribunal stated that this was a “truly shocking case [of] sustained arbitrary and outrageous use of the executive [ie the NHS]”.

The Tribunal also awarded £10,850 compensation for unfair dismissal.

The Tribunal also ordered, by way of recommendation, that the Trust should issue a full written apology to Mr Palmer which should be signed by the Chairman and CEO of the Trust and made public via a press release.

A copy of the liability judgment can be found here.

A copy of the remedy judgment can be found here.

Mr B Palmer v East and North Hertfordshire NHS Trust, unreported 14 June 2012, Bedford Employment Tribunal