What happens to the pay of a part-time NHS doctor taking up a full-time training position when undergoing approved training? The relevant NHS Terms and Conditions allow clinical staff to have their pay protected, but they do not deal with the pay of part-timers. Should she be paid at a "full-time rate" for her previous job, even if that means that her pay whilst training is considerably higher than her previous, part-time pay? No, says the Court of Appeal in Barts NHS Trust v Verma , by a majority (Rix and Rimer LJJ), with Elias LJ dissenting. Daniel Barnett’s Employment Law Bulletin reports: The Claimant had a sessional post and worked two sessions (7 hours) a week. When she took a full-time House Officer position as approved training, the Respondent Trust limited her protected pay to the maximum pay for her sessional position at five sessions or 17.5 hours – resulting in a pay rise for the Claimant, but not paying a notional full-time equivalent salary at sessional rates. When the Claimant brought a wages claim, seeking protected pay at the notional full-time sessional rate for her previous role, the employment tribunal held that her pay was protected for five sessions per week. The Claimant appealed successfully to the EAT, and was awarded her notional full-time sessional pay, meaning she was paid more than twice her previous pay. The Respondent Trust conceded that the employment tribunal's decision on five sessions was correct. On the Trust's appeal, the Court of Appeal, noting the difficulties caused by the wording of the NHS Terms and Conditions, overturned the EAT's decision and restored the employment tribunal Judgment. Although the majority of the Court of Appeal considered that it should only be two sessions that were protected, the Trust's pragmatic concession left the employment tribunal's Judgment unaffected. Rix LJ held that "the natural, rational and purposive interpretation of these provisions relating to protected pay... [protects] ...the practitioner for the pay in a previous role which he or she earned" but does not "[extend] their pay to a figure possibly far in excess of any figure previously earned". The Judgment sets out the correct approach for part-timers moving to full-time with protected pay, and is likely to be mainly of interest to those dealing with NHS clinical staff, as it relates to terms and conditions of service peculiar to that part of the NHS. 20 October 2011 Does the duty of mitigation, which applies for the purposes of claiming compensation before the employment tribunal, oblige a wronged employee to consider an offer of new employment with the employer with whom there has been a dispute? A rather longwinded question and the answer, according to the Employment Appeal Tribunal is yes, in the case of Debique v Ministry of Defence . Ms Debique worked for the British Army. She gave birth to a daughter. She was a single parent and found it difficult to combine motherhood with her responsibilities as a serving soldier. After a dispute she gave notice and left. She succeeded in her claim for unlawful indirect sex and race discrimination (see [2010] IRLR 471). At a remedies hearing before the employment tribunal she was awarded £15,000 for injury to feelings but nothing for loss of earnings, on the basis she had failed to mitigate her loss. She had refused an offer, made by her employer during her period of notice, of a posting which would have provided stability and which would adequately have addressed her childcare difficulties. MITIGATION OF LOSS
CIPP Policy News Journal
09/10/2012, Page 53 of 234
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