Barts and the London NHS Trust v Verma

The Court of Appeal considered the construction of the pay protection provisions in the NHS Terms and Conditions of Service, in particular paragraph 132 (protection where a practitioner takes a lower grade for approved training) and paragraph 135 (interpretation of rate of salary for part-time practitioners). The central issue was whether pay protection for a sessional part-time hospital practitioner should be calculated by converting the former sessional rate to an hourly/full-time equivalent (as held by the EAT) or whether protection is confined to the incremental point and, for sessional posts, to the maximum allowed sessions under the grade (as the Employment Tribunal held and the Court of Appeal majority restored).

The majority (Rix LJ and Rimer LJ) allowed the appeal, restoring the Employment Tribunal’s award that protected pay for a hospital practitioner like Dr Verma was limited to the maximum of five sessions per week at the relevant incremental point (and in the specific facts the Tribunal’s figures). Elias LJ dissented, preferring a construction that converted sessional pay into a whole-time equivalent based on 38.5 hours (the incremental point treated as a full-time rate), which would yield a higher protected sum. The Court therefore interpreted paragraphs 132 and 135 as protecting the pay at the incremental point actually applicable to the practitioner (or the applicable sessional maximum), rather than requiring an hourly-to-full-time conversion that could produce an enhanced protected pay far above what the practitioner could have earned in the previous post.

Background and parties: The claimant, Dr Verma, a doctor specialising in oral and maxillo-facial surgery, moved from a sessional Trust-grade hospital practitioner post (two sessions per week) to a full-time Foundation Year 1 pre-registration house officer (FY1PRHO) training post with Barts and the London NHS Trust. She claimed pay protection under the NHS Terms and Conditions when she took the lower grade training post.

Nature of the claim / relief sought: Dr Verma claimed that the Trust had made unlawful deductions from her wages by failing to pay protected pay. She alleged that paragraph 132 of the NHS terms required the Trust to pay the hourly rate she had previously received for every hour worked in the new training post (so that the former sessional pay converted into a full-time equivalent produced a much higher protected salary). The Employment Tribunal awarded protection limited to pay for five sessions; the Employment Appeal Tribunal allowed Dr Verma’s appeal and required conversion to a full-time equivalent; the Trust appealed to the Court of Appeal.

Issues framed:

• How should paragraph 132 (pay protection) be construed as to part-time and sessional practitioners?
• Does paragraph 135(a) require identification of an hourly rate or a full-time equivalent when calculating protected pay for part-time/sessional posts?
• For sessional hospital practitioners, should protected pay be capped at the maximum sessions available in that grade or converted to a full-time equivalent?

Court’s reasoning and resolution: The majority (Rix LJ and Rimer LJ) concluded that paragraph 132 protects pay by reference to the incremental point the practitioner had reached in the previous appointment and that paragraph 135(a) should be read as ensuring part-timers are paid pro rata at the corresponding point in the salary scale rather than as converting sessional pay into an hourly full-time equivalent. For sessional posts the salary is expressed per session and the natural construction is to limit protected pay to what the practitioner actually earned (or, as the Tribunal held, to the maximum number of sessions available under that grade if that was the Tribunal’s approach). They found it counter-intuitive and unsupported by the terms to permit conversion that produced a protected salary far exceeding any amount the practitioner had earned or could have earned in the previous post. Elias LJ dissented, favouring an approach that translated sessional pay into a full-time equivalent (using 38.5 hours) but he was in the minority.

Practical outcome: The Court allowed the Trust’s appeal and restored the Employment Tribunal’s judgment limiting protected pay to the equivalent of five sessions for sessional hospital practitioner posts (the practical arithmetic being a task for the parties if necessary).

Appeal allowed. The Court (majority Rix LJ and Rimer LJ) held that the NHS Terms and Conditions (paragraph 132 read with paragraph 135) should be interpreted so that pay protection operates by reference to the incremental point applicable to the practitioner and, in the case of sessional hospital practitioner posts, by reference to the sessional rates and the maximum sessions available in that grade rather than by converting sessional pay into an hourly full-time equivalent that could produce a substantially higher protected salary. Elias LJ dissented, favouring a full-time equivalent conversion.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (Underhill J with two lay members) UKEAT/-182/10/SM. The matter originated in the Employment Tribunal (first instance), whose decision on protected pay the Court of Appeal (majority) restored.