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Kayani v. University Hospitals Birmingham NHS Foundation Trust


Employment Appeal Tribunal

An employment tribunal had correctly decided that a doctor's new NHS trust was entitled to pay him less than his previous trust on the basis that his previous employment had been remunerated incorrectly. On correct construction of the NHS terms and conditions of service, the provisions protecting salaries of previous posts afforded to those who were promoted did not extend to the doctor's situation, where he had simply moved from one grade to another.

The appellant doctor (K) appealed against an employment tribunal's decision to dismiss his claim for unlawful deductions of wages against the respondent NHS trust.

K had worked as a senior house officer (SHO) in the NHS from 2005 to 2008. When his contract concluded he became a specialty doctor. He was paid a salary higher than the relevant level on the pay scale that formed part of the NHS terms and conditions of service. In 2012, he re-entered training as a specialty registrar and moved to an employer who paid him an equal salary on the basis that his previous pay as a specialty doctor was protected. He then moved on to a rotation with the trust. On review of K's service history, the trust concluded he had been remunerated incorrectly by his two previous employers and it was not prepared to protect an incorrect salary. Its job offer to K was thus on condition of lower pay. In the terms and conditions of service, para.133(a), headed "Promotion Increase", protected pay for practitioners taking up a new post, with a final clause covering situations where the maximum salary of the new position was less than the previous post. Paragraph 130 provided for one increment on the grade scale to be given where sufficient time was spent as an SHO. The tribunal decided that the heading of para.133(a) assisted in construction and concluded that K's salary could not be protected as his move to the trust was not a promotion. Regarding the final clause, it accepted evidence from the trust's head of medical resourcing (M) that there could be a few specific roles in which those less senior than specialty registrar were paid more than the highest point on that scale. It decided that the word "increment" in para.130 simply meant one increment on the grade scale.

K contended that the tribunal (1) was wrong to rely on the heading of para.133(a), and the provision could not be limited to promotions as the pay scales showed there were no cases in which someone could be earning more in the junior position than the maximum scale of the higher position; (2) had erred in its construction of para.130 because "increment" meant increase and he should have received an actual pay increase.

HELD: (1) The tribunal had not inappropriately placed reliance on the heading of para.133(a). It was a legitimate aid to construction. The heading was a signpost in the context of the agreement and was consistent with the use of headings within the terms and conditions as a whole. The natural meaning of the paragraph was that it was applicable to promotion cases. K's concern that such a construction rendered the last clause empty of practical meaning was understandable. However, the pay scales were not the only evidence available. M was obviously experienced in the field and had spoken of the application of the terms and conditions in general terms. The terms and conditions served many different situations, including promotion possibilities outside the pay scale documentation. Thus, the tribunal had been entitled to accept and give weight to M's evidence. Moreover, K's construction of the paragraph would mean that a sideways career move would always lead to an increase in pay: that could not be what the parties had intended (see paras 54-59 of judgment). (2) The word "increment" in para.130 was not used in common parlance to mean an increase. Within the terms and conditions, "increment" was used interchangeably with "increment point". It plainly referred to K's entitlement to move up one increment point on the scale to reflect his time as an SHO, even if that did not mean an actual increase in pay (para.61). (3) The points raised by K had been legitimate ones to explore and clarify through an oral hearing. The fact the case had been allowed to proceed without a preliminary hearing or an Employment Appeal Tribunal Rules 1993 r.3(10) hearing was also relevant. Therefore, the grounds were not made out for the trust to make a successful application for costs (paras 66-67).

Appeal dismissed


LTL 10/3/2014

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