Barts and the London NHS Trust v Verma
Barts and the London NHS Trust v Verma
FactsThe Claimant was an oral and maxillo-facial surgeon. From November 2006 to early 2007 she worked for the Luton & Dunstable NHS Trust for two sessions a week, a session being a half day of 3.5 hours. She then went to work for the Respondent Trust (‘the Trust’) as a “Foundation Year 1 Pre-Registration House Officer” or FY1PRHO, a training position usually taken up by newly qualified doctors. The Claimant did this because it was a prerequisite for her to qualify as a consultant in her field. The standard NHS Terms & Conditions allow for pay protection in these situations, which means that rather than stepping down to the normal FY1 salary, a doctor should retain the salary from her previous role. The purpose of the term is to allow doctors (who have previously been working at a higher level) to re-enter recognised training posts without suffering a financial detriment and to recognise past experience.
The issue in the appeal was the extent of pay protection entitlement if a doctor had been working on a part-time rather than full-time basis in the previous higher grade appointment. The Claimant argued that she should be pay protected in respect of each hour worked in the lower grade which equated to basic pay at a protected rate of £65,931.42 p.a. (based on a 40 hour week in FY1PRHO) less the £21,052 p.a. basic salary that the Trust actually paid. In addition she claimed (a) increased “banding supplements”; (b) breach of the equality clause implied under the Equal Pay Act 1970, and; (c) an uplift for compensation under the statutory grievance procedures. The latter two issues were not part of the appeal. The Tribunal allowed the Claimant’s claim for pay protection but limited it to a maximum of five sessions which was the maximum number of sessions that she could have worked in her previous Hospital Practitioner post. The Claimant successfully appealed to the EAT and Underhill P accepted that she should receive the pro rata amount for the 40 hour week in FY1PRHO. The Trust appealed to the Court of Appeal.
Held
Rix and Rimer LJJ held that the correct approach was to pay the Claimant exactly what she had received in her former position, so for two sessions per week. However, in fact the Court of Appeal restored the decision of the Employment Tribunal (pay for five sessions) because the Trust had made a concession to pay the Claimant protected pay at this rate. There was much discussion of the wording of the provisions in question, but the essential reasoning was that pay protection was about ‘continuing’ at the previous salary, and that the Claimant’s argument would give an effective windfall to people who had previously worked part-time.
Comment
Elias LJ’s dissent is interesting, as it points out the problems in the majority’s approach. The term itself does not draw any distinction between full-time and part-time workers. Further, the majority’s decision is to effectively deprive part-time workers who re-enter into full time training posts of the right to pay protection at all, or of meaningful pay protection. In the Claimant’s case, the pay protection provisions are of little material effect and, were it not for the Trust’s concession that her pay is protected at five sessions per week, they would have no material effect.
As a result the majority’s approach is likely to disincentivise doctors who move from part time posts to full time posts for the purposes of training and Elias LJ also points out the distinct likelihood of potential indirect sex discrimination arguments because of this construction. The Court of Appeal’s decision will (subject to any further appeal) affect all current and future doctors within the NHS because, although the pay protection term was subsequently revised in 2007, it remains substantially and materially the same as the term in the Claimant’s case. The Claimant is applying for permission to appeal from the Supreme Court.