Verma v. Barts and The London NHS Trust

Pay protection provisions must be construed according to the rate of remuneration protected, rather than merely the amount previously received. A part-time practitioner who moves to a full-time training post in a lower grade is therefore entitled to the full-time equivalent of the rate paid in the previous post. A contractual limit on the number of sessions that could have been worked in the previous grade does not cap the protected rate where the relevant provisions contain no such limitation. Any salary supplements calculated by reference to basic pay must be reconsidered on the basis of the protected salary.

The appellant, an experienced doctor, moved from a part-time Trust-grade post equivalent to a Hospital Practitioner appointment into a full-time FY1 pre-registration training post. She claimed pay protection under paragraphs 132 and 135 of the NHS Terms and Conditions of Service, together with consequential banding supplements.

The Employment Tribunal upheld pay protection but limited it to an annual basic salary of £28,845. It also made an award for an admitted incremental-scale error. The appellant appealed against the limitation of the pay protection and the failure to determine the banding-supplement issue.

1. Appeal allowed. On the true construction of paragraph 132 of the NHS Terms and Conditions of Service, read with paragraph 135(a), pay protection preserves the practitioner’s previous rate of pay, not merely the actual amount received in the previous part-time appointment.
2. Where a part-time practitioner moves to a full-time training post in a lower grade, the protected entitlement is the full-time equivalent of the previous rate. Paragraph 135(a)’s reference to the corresponding point in the salary scale means the equivalent full-time rate for the previous post.
3. The five-session maximum in paragraph 6(d) does not limit the protected entitlement. That provision restricts the sessions which a Hospital Practitioner may work; it does not impose a limit on pay protection. The omission of Hospital Practitioners from the exception in paragraph 135(a) supports application of the general rule to them.
4. The sessional remuneration applicable to the previous Hospital Practitioner-equivalent post had to be converted into an annual salary figure appropriate to the full-time hours of the training post. The appellant was accordingly entitled to protected basic pay of £65,931 for the period claimed.
5. The claim for recalculated banding supplements was remitted to the Employment Tribunal. It had to determine that issue on the basis of the protected pay, and the appellant could rely on paragraph 135(e).

• Employment Appeal Tribunal: Allowed the appeal and declared entitlement to protected basic pay of £65,931. The banding-supplement issue was remitted to the Employment Tribunal.
• Employment Tribunal, East London Hearing Centre: The appellant’s claim was partly upheld. Pay protection was limited to £28,845 per annum, with a further award for an admitted incremental-scale error.