NHS pay protection Regulations entitle clinical staff to have their pay protected when they undergo approved training, but they do not specify what should happen to the pay of part-timers. In Barts and the London NHS Trust v Verma, the Court of Appeal said that part-timers are only entitled to the pay rate that they earned in their previous role.
Dr Verma worked part time for a Trust as a specialist doctor working two sessions of three and a half hours each per week. She was then offered - and accepted - a full time training post of 40 hours per week as a house officer with another Trust,. The training post was a lower grade position usually filled by newly qualified doctors, but which Dr Verma accepted so that she could qualify to become a consultant in her field.
Under standard NHS terms and conditions, pay protection applies in these circumstances so that the employee continues to be paid at the incremental point they had reached in their previous job. However, the agreement did not specify what should happen if the employee moved from part-time to full-time hours.
Dr Verma claimed she was entitled to pay protection on the basic hourly rate of pay in her original post, for the entire 40 hours per week in the training post. The Trust said she was only entitled to pay protection based on the pay she received for her part-time hours - in other words, two sessions (or seven hours) per week.
She brought a claim for unlawful deduction of wages.
Tribunal and EAT decisions
The Tribunal agreed that the calculation for her pay should be based on her previous salary, but limited to the maximum hours Dr Verma could have worked in that post, which was five sessions (17.5 hours per week).
The EAT disagreed, saying that, since the protected pay was determined by reference to the hourly rate of payment, it was irrelevant how many hours she worked in her previous post or how many hours she would have been entitled to work. The only relevant question was how many hours she was working in the training post, concluding that she was entitled to be paid for 40 hours at the more favourable rate.
Court of Appeal decision
On appeal, the Trust conceded that the original Tribunal's decision on five sessions was correct, and asked the Court of Appeal to overturn the EAT’s findings.
Acknowledging how difficult it was to interpret the pay protection provisions, the Court of Appeal concluded that they should be given their “natural, rational and purposive interpretation”.
That meant giving practitioners the pay which they earned in the previous role at the current rate “and not as extending their pay to a figure possibly far in excess of any figure previously earned”.
The Court added that: “It is simply counter-intuitive to suppose that the less a part-time practitioner worked in a previous post, the more he or she is "protected" in a training post..... I cannot conceive that it would be realistic to suppose that an employer, and perhaps especially a public employer, would wish to pay an enhanced "protection" to an employee who had performed only minimal part-time work for it in the past, on the basis that the employee's private earnings or private leisure needed to be compensated by "protection" of merely theoretical, but not actual, earnings in that employer's service."
The Court of Appeal went on to find that, had the Trust not already conceded that Dr Verma was entitled to pay protection based on the maximum five sessions per week she could have worked, it would have held that she was only entitled to protection for the two sessions that she was actually contracted to work. As it was, the original Tribunal decision was reinstated.
This was a majority judgment. Lord Justice Elias disagreed with the suggestion that pay protection should be capped, particularly as there was no express term in the provisions requiring this. His reasoning implied that the decision to operate a cap could be on policy grounds, bearing in mind the possibility of pay being protected at a level which the employee could never have earned if such a cap was not enforced.