Healthcare HR e-briefing: pay protection in training

The recent Court of Appeal decision in Barts and the London NHS Trust v Verma (12 October 2011) deals with the principle of pay protection afforded to staff under the NHS Terms and Conditions of Service.  Those terms provide that where an individual undertakes a training post their pay shall be protected at the level of their previous position.  The rationale behind such a provision is easy to follow, as it means that practitioners are not deterred from taking on a training role which continues their professional development and may ease transfers into specialities where suitably qualified staff are in short supply.

Background

A dispute arose in the case at hand due to the particular circumstances of the claimant, Dr Verma.  In her previous role, Dr Verma was paid on a per session basis.  She worked part time, undertaking two sessions per week, although the maximum permitted in the role would be five sessions per week.

The training role which Dr Verma subsequently took up required her to work 40 hours per week.  She argued that the relevant pay protection provisions of the NHS Terms and Conditions of Service should be interpreted to protect her pay at the rate she would have been paid had her previous role also been 40 hours per week.

Progress of the Claim

This argument did not succeed in the Employment Tribunal, which decided that Dr Verma’s pay should be protected at the hourly rate she was receiving in her previous role but with the weekly amount capped at the level Dr Verma would have received had she worked the maximum five sessions per week available in that role.  The Employment Appeal Tribunal (EAT) disagreed, and accepted Dr Verma’s argument that she should be paid at the same hourly rate that her pay in her previous role equated to for the full 40 hours per week of the new role.

Now, however, the Court of Appeal has overturned the EAT’s decision.  In the Court of Appeal’s view, Dr Verma was only entitled to pay protection at the level which she was actually paid in the previous role, ie based on two sessions per week.  However, the respondent Trust in the case conceded that they did not seek to overturn the Employment Tribunal’s decision, and therefore accepted that Dr Verma should be paid as if she had worked five sessions per week in her previous role.

Comment

The point of principle determined in the case may be of limited practical application given Dr Verma’s particular circumstances, but NHS Trusts should be aware of it when determining individuals’ pay in training roles where the individual is entitled to pay protection at their previous level of pay.  Anybody taking up a full time training role who was previously working in a part time role will be entitled to have their pay protected at their previous actual level of pay, not their full time equivalent pay level.

Of wider concern will be the point made by Lord Justice Rix in his judgment:

‘The difficulty of the issue of construction [of the provisions of the NHS Terms and Conditions of Service] in this case is demonstrated by the unfortunate fact that the ET, the EAT and this court itself have arrived at different solutions to it.’

This case highlights that disputes can arise even where situations are expressly dealt with by a written contract, due to different parties interpreting the contract differently.  The principles of contractual interpretation can be complex, and therefore appropriate advice should be sought whenever such an issue cannot be resolved.