Nenji v Birmingham Childrens Hospital NHS Trust

For continuity of NHS employment, the statutory test asks whether the person was employed by a health service employer in a specified grade and, during that employment, underwent professional training involving successive health service employers. Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996 does not require prior Specialist Advisory Committee approval. Administrative guidance concerned with training standards cannot add that condition to an employment-law instrument. Whether the claimant was employed as a registrar and was undergoing professional training remained a factual question for the tribunal.

Mr Nenji claimed unfair dismissal after his employment by Birmingham Childrens Hospital NHS Trust ended. His employment with that Trust lasted less than two years, so he needed to aggregate earlier NHS employment under the Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996. The Employment Tribunal held that his employment was not relevant employment because the post lacked Specialist Advisory Committee approval. The Employment Appeal Tribunal upheld that construction and did not resolve conflicting evidence about his status and contractual terms. The central issue before the Court of Appeal was whether Specialist Advisory Committee approval was required by Article 1(2)(a).

The appeal was allowed unanimously. The case was remitted to a different tribunal for rehearing, with costs.

1. Statutory inquiry. Mr Justice Astill and Lord Justice Sedley treated Article 1(2)(a) as requiring two inquiries: whether the claimant was employed by a health service employer as a registrar or other specified medical grade, and whether he underwent professional training during that employment in circumstances involving successive health service employers.
2. No approval requirement. Mr Justice Astill held that the Order is concerned with employment law. The West Midlands staffing guide was a management document concerned with maintaining training standards. It was only a guide, issued by one NHS office, and had no force of law. Specialist Advisory Committees likewise dealt with training standards and did not interpret employment law. Neither could justify reading an approval requirement into Article 1(2)(a).
3. Continuity distinguished from qualification. Lord Justice Sedley explained that training which fell below the approved standard might not count towards professional qualification. That did not mean it could not count towards continuity of NHS employment. The purpose of the Order was to prevent NHS administrative organisation and necessary rotation between employers from disadvantaging trainee doctors.
4. Factual determination required. The absence of Specialist Advisory Committee approval was not determinative. The tribunal had to consider the evidence bearing on whether Mr Nenji was a registrar undergoing professional training and resolve the conflict about the terms of his employment, including whether he was engaged as a locum. Those factual questions were remitted for decision.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1108, allowed the appeal and remitted the case to a different tribunal for rehearing, with costs.
• Employment Appeal Tribunal: upheld the Employment Tribunal’s construction that professional training required an appropriately approved training post.
• Employment Tribunal: held that the claimant’s NHS employment could not be aggregated because Specialist Advisory Committee approval had not been obtained.