Morgan v Greater Glasgow Health Board

Contractual pay-protection provisions must be construed in their factual and contractual context. A court may depart from a strict literal reading where the background shows that the language cannot reflect the parties’ intended arrangement.

Where a junior doctor’s annual placement has ended and a fresh placement and fixed-term contract have begun, pay protection under paragraph 21f of the NHS terms does not continue merely because the doctor performs the same job at the same hospital. The incorporated terms and conditions form part of the contract. A worker’s uncommunicated belief that an expired contract continued cannot establish agreement to extend it.

The claimant was a specialty registrar in psychotherapy employed on separate annual fixed-term contracts. His 2009–10 contract carried a Band 1B supplement. His 2010–11 contract, issued following a fresh training placement, carried the lower Band 1C supplement. He continued working but did not sign the later contract.

He brought an unlawful-deduction complaint, contending that contractual pay protection continued because he remained in the same post or, alternatively, the same rotation. The Employment Tribunal rejected the complaint. He appealed, challenging the construction of paragraph 21f of the NHS Terms and Conditions and asserting that the earlier contract continued to govern his employment.

1. Appeal dismissed. The Employment Judge made no error of law in construing the contractual pay-protection provisions.

2. Contractual interpretation is not confined to strict literalism. Where the factual background demonstrates that wording cannot express the parties’ intended arrangement, a court may adopt a construction consistent with that intention and business common sense. The Employment Judge was entitled to interpret paragraph 21f in its context.

3. The relevant context showed that rotations contained posts and placements, and that the expressions post and placement could sometimes be used interchangeably. Read with paragraph 21h, paragraph 21f showed a clear contractual intention that pay protection should not continue beyond the relevant post or placement. Construing the words “or within a rotation” to preserve protection throughout the rotation would defeat that intention.

4. The claimant’s 2010–11 appointment followed the end of the preceding annual placement. It was a fresh placement and, on the Employment Judge’s permissible factual analysis, a fresh post, despite involving the same job at the same hospital. The protection did not therefore carry into that appointment.

5. The NHS Terms and Conditions were expressly incorporated into the claimant’s contracts. His failure to sign the new contract, and any belief that the earlier fixed-term contract continued, did not establish agreement by the respondent to extend a contract which had an express termination date.

6. The appeal was misconceived. Under rule 34A(1) of the EAT Rules 1993, the Tribunal could award expenses. The respondent was directed to lodge its expenses schedule, with consequential opportunities for representations and evidence of means.

• Employment Appeal Tribunal: Appeal dismissed: [2012] UKEAT 0044_11_1906.
• Employment Tribunal, Glasgow: The claimant’s complaint of unlawful deduction from wages was dismissed. No citation was stated.