Barts and the London NHS Trust v Verma

Pay protection under paragraph 132 of the NHS Terms and Conditions preserves remuneration attached to the incremental point reached in the previous appointment. It does not generally require previous pay to be converted into an hourly rate and multiplied by the longer hours of a full-time training post. For a practitioner previously working part-time, protection remains proportionate to the work undertaken. A full-time training post does not itself create entitlement to full-time previous-grade pay. For a sessional post, the relevant calculation is based on sessions previously worked. The court nevertheless restored a five-session award because the employer had conceded that basis and had not appealed the tribunal’s award.

Dr Verma moved from a two-session hospital-practitioner-equivalent post to a full-time FY1PRHO training post. She claimed pay protection under paragraph 132 of the NHS Terms and Conditions and brought an unlawful-deduction claim under Part 2 of the Employment Rights Act 1996. The Employment Tribunal rejected protection calculated by reference to eleven sessions but awarded protection at five sessions. The Employment Appeal Tribunal, in UKEAT/-182/10/SM, allowed her appeal and held that her previous rate should apply to the hours worked in training. The Trust appealed. The central issue was how paragraphs 132 and 135(a) applied where the previous post was sessional, part-time and subject to a five-session maximum.

1. Disposition. Rix LJ gave the leading majority reasoning, with Rimer LJ agreeing. The appeal was allowed, the EAT’s decision was set aside, and the Employment Tribunal’s award was restored. The restoration of the five-session basis reflected the Trust’s concession and its failure to challenge that aspect of the tribunal’s decision.
2. Paragraph 132. The majority construed the requirement to continue to be paid on the incremental point reached in the previous appointment as preserving the remuneration appropriate to that appointment at the current applicable rate, including subsequent pay awards. It did not create a new entitlement calculated by converting previous remuneration into an hourly rate and applying it to the longer hours of the training post.
3. Part-time employment. Paragraph 135(a) was an interpretation provision applying across paragraphs 121 to 134. The corresponding point in the salary scale identified the rate for the job. It did not mean that a part-time practitioner received the same annual amount as a full-time practitioner. Actual pay remained proportionate to the work undertaken. The full-time nature of the training post did not alter that construction.
4. Sessional work. For a hospital-practitioner post paid by reference to an annualised sessional rate, the proper construction would protect pay for the sessions actually worked, namely two sessions, rather than the maximum five sessions or a full-time equivalent. The majority nevertheless restored the five-session award because of the Trust’s procedural concession.

Minority reasoning

Elias LJ preferred a different construction. He considered that the corresponding salary-scale point was the same for part-time and full-time practitioners and that a full-time training post therefore attracted the full-time salary at that point. For the sessional post, he would have converted the rate by reference to 38.5 hours and rejected a five-session cap. That reasoning did not command the majority.

1. Court of Appeal (Civil Division): in [2011] EWCA Civ 1129, allowed the Trust’s appeal and restored the Employment Tribunal’s award.
2. Employment Appeal Tribunal: in UKEAT/-182/10/SM, allowed Dr Verma’s appeal and held that pay protection applied by reference to the hours worked in the training post.
3. Employment Tribunal: rejected calculation by reference to eleven sessions but awarded pay protection on a five-session basis.