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NHS“In retrospect, this may be another case where it would have been better to have left the case where it stood following consideration by the specialist appeal tribunal”.

So said Lord Carnwath, in allowing an appeal by the claimant, Dr Surabhi Verma, against the order of the Court of Appeal, [2011] EWCA Civ 1129 on unlawful deduction of wages, where everyone seemed to agree that the case lacked wider public interest. 

The appellant, Dr Verma, worked as a part-time hospital practitioner for two and a half “sessions” per week (a session was 3.5 hours). She left that post to take up a full time training position with the defendant NHS Trust, which was a requirement for her to be able to qualify as a consultant. Dr Verma brought a claim against the defendant arguing, inter alia, that there had been an unlawful deduction of her wages contrary the Employment Rights Act 1996, Pt 2 (a concept that includes a failure to pay an employee what is contractually due to him or her).

The pay protection clause in paragraph 132 of the NHS Terms and Conditions of Service for Hospital Medical and Dental Staff reads as follows:

“Where a practitioner takes an appointment in a lower grade, which is recognised by the appropriate authority as being for the purpose of obtaining training (which may include training to enable the practitioner to follow a career in another specialty), the practitioner shall, while in the lower grade, continue to be paid on the incremental point the practitioner had reached in his or her previous appointment.”

Dr Verma claimed that the payment protection clause was not limited to preserving her previous annual earnings, but required her employer to pay all her new full-time hours at an hourly-rate equivalent to her previous part-time work.

The employment tribunal held that her protection was limited to the pay for five sessions (the maximum full-time equivalent for a hospital practitioner grade). The EAT instead agreed with Dr Verma that the protection was the previous role’s hourly “rate” paid for the hours currently worked:

“The rate reflects not only the actual value of the work done but also the seniority and experience of the person doing it, and those factors are present and apply to the entirety of the hours worked. We have no difficulty in seeing that it would ‘feel fair’ to all concerned that, say, a former Consultant filling a Registrar post, so as to re-train in a way which will benefit the NHS as much as herself, should be paid as a Consultant for the entirety of the hours worked; and indeed that it might feel positively unfair and anomalous for her to receive different rates for different hours within a single job” [para 22]

The Court of Appeal restored the employment tribunal’s award.

Delivering a unanimous judgment, Lord Carnwath said that the issue fell to be resolved by applying the ordinary principles of contractual interpretation, the object being to ascertain the intention of the parties by examining the words which they had used and giving them their ordinary meaning in their contractual context. And on that basis he allowed the appeal, upholding the reasoning and conclusion of the EAT. He noted the difficulties that paragraph 132 presented, and also that the decision was unlikely to be of much impact generally . . .