Supreme Court
Under the NHS Terms and Conditions of Service, a doctor moving from a part-time post to a lower-paid full-time training post was entitled to pay protection in respect of the full hours worked in her new post and not only in respect of the hours worked in her previous post.
The appellant doctor (V) appealed against a decision ([2011] EWCA Civ 1129) that, in moving from a part-time post in the NHS to a lower-paid full-time training post, she was entitled to pay protection only in respect of the hours worked in her previous post and not for the full hours worked in her new post.
V had worked at hospital practitioner grade, a part-time position where she worked for two half-day sessions per week. Her pay was calculated by the number of sessions worked. She moved to a full-time, 40-hour per week training post with the respondent NHS trust which had significantly lower pay, calculated as an annual figure. The NHS Terms and Conditions of Service para.132 provided that where a practitioner took a training appointment in a lower grade, she would continue to be paid on the incremental point in the pay scale she had reached in her previous appointment. The trust considered that her pay should only be protected to the extent of the two sessions per week she had worked. The Employment Appeal Tribunal found that payment protection applied for the full time worked at the lower grade. The Court of Appeal held that payment protection only applied to five sessions per week, the maximum she could have worked as a hospital practitioner.
HELD: (1) The issue had to be approached by applying ordinary principles of construction. The "incremental point" in para.132 was clearly a reference to the relevant point in the scale for the practitioner's grade. Since, for V's grade, that point was expressed in sessional rates some means had to be found to convert those rates into a form which could be applied to the different terms of her training post, in which her periods of work were measured in hours, not sessions. The most obvious way of doing that was by conversion of the sessional rates to hourly rates. Although it might be counter-intuitive that the rates should not be limited by reference to the number of sessions which were, or could have been, worked in the former post, there was nothing in the wording of para.132 which could be relied on to support such a limitation. Nor was there such a limitation in the relevant interpretation provision: para.135(a) simply confirmed that no distinction was to be made in the application of the rates between part-time and full-time practitioners. The order of the EAT would be restored; in accordance with that the case would be remitted to the employment tribunal (see paras 26-29 of judgment). (2) It was disturbing that a condition designed to confer important rights on employees should be so obscure. The differences of view between experienced judges in the Court of Appeal was testament enough that the condition was not well drafted and required reconsideration (para.21).
Appeal allowed
Counsel for the intervener: Frederic Reynold QC, Nadia Motraghi
[2013] ICR 727 : [2013] IRLR 567
