Barts and the London NHS Trust v Verma

A contractual pay-protection provision requiring a practitioner to continue to be paid on the incremental point reached in a previous appointment protects the applicable rate. Where a sessional rate must be applied to a training post measured in hours, the rate should be converted into an hourly equivalent.

A restriction based on the number of sessions previously worked, or capable of being worked, cannot be implied where the contractual language contains no such restriction. An interpretation provision applying the same salary-scale point to part-time and full-time practitioners confirms that conclusion.

A doctor left a part-time Hospital Practitioner-equivalent appointment to enter a full-time training post with an NHS trust. Paragraph 132 of the applicable NHS terms protected the incremental point reached in her previous appointment. The issue was whether protection extended only to the maximum number of sessions available in the former grade or applied the former sessional rate across all hours worked in the training post.

The Employment Tribunal limited protection to five sessions. The Employment Appeal Tribunal allowed the doctor’s appeal and treated the protected figure as a rate. By a majority, the Court of Appeal reversed that decision in [2011] EWCA Civ 1129. The doctor appealed to the Supreme Court.

1. Appeal allowed unanimously. Lord Carnwath delivered the judgment, with which Lord Hope, Lord Walker, Lady Hale and Lord Sumption agreed. The Employment Appeal Tribunal’s reasoning and order were upheld, and its order was restored.

2. Ordinary contractual principles required the court to ascertain the parties’ intention from the words used, giving those words their ordinary meaning in their contractual context. Effect should be given to every word, so far as possible, in its stated order. Words should not be added, changed, removed or rearranged unless the contractual language creates an ambiguity which cannot otherwise be resolved. The approach in Multi-link Leisure Developments Ltd v North Lanarkshire Council [2010] UKSC 47 was applied.

3. Paragraph 132 required the practitioner to continue to be paid on the incremental point reached in the previous appointment. The incremental point referred to the relevant point in the grade’s scale in Annex A. Because the Hospital Practitioner point was expressed as a sessional rate, while the training post measured work in hours, the rate had to be converted into an hourly equivalent.

4. The contractual wording did not limit protection by reference to the number of sessions previously worked or capable of being worked. Although the resulting remuneration might appear counter-intuitive, that consequence could not justify implying an unexpressed restriction. Paragraph 135(a) confirmed that the Annex A rates applied without distinction between part-time and full-time practitioners. Its express exception for certain part-time medical and dental officers made it harder to imply another limitation for Hospital Practitioners.

5. The case was remitted to the Employment Tribunal to determine the outstanding issues identified in the restored Employment Appeal Tribunal order.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, set aside the majority decision of the Court of Appeal, restored the Employment Appeal Tribunal’s order and remitted the outstanding issues to the Employment Tribunal.

2. Court of Appeal: By a majority, Rix and Rimer LJJ accepted the Trust’s construction and reversed the Employment Appeal Tribunal; Elias LJ preferred the Employment Appeal Tribunal’s approach: [2011] EWCA Civ 1129.

3. Employment Appeal Tribunal: Allowed the doctor’s appeal. It held that pay protection protected the rate attached to the former incremental point rather than merely the amount earned for the hours previously worked.

4. Employment Tribunal: Held that pay protection was limited to five sessions, being the maximum number available in the doctor’s former grade.