The Claimants were both previously employed in NHS career grades as Specialist Doctors. Dr Raj and Dr Asif received approval to return to training grade posts in order to advance their careers, and the issue of pay protection then arose.

On return to training, they were employed under the NHS Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales), which came into force in 2002 (‘the TCS’). Amendments to the TCS came into force in 2007, following negotiations in 2006 between the BMA and NHS Employers.

Under the TCS, the employing Trusts were required to interpret and implement the pay protection provisions. The dispute in this case centred on paragraphs 132 and 135 of the TCS, which set out eligibility criteria for pay protection and pay calculations. The particular issue in this case was the comparison exercise the employing Trusts were required to undertake to determine what the doctors should be paid, once it was established that the doctors met the eligibility criteria. Under paragraph 135e of the TCS, a comparison is required between (1) the basic training grade salary plus the banding supplement and (2) the protected salary, with the doctor entitled to be paid whichever is the greater.

The parties differed on how the words ‘protected salary’ should be interpreted. On behalf of the doctors, the BMA argued that this meant their basic career grade salary upscaled to take into account additional or antisocial hours to be performed in the training post, paid at the career grade rate (‘the rate interpretation’). The Trusts, following national guidance, argued conversely that ‘protected salary’ referred to basic career grade salary only (‘the fixed amount interpretation’).

Employment Tribunal decision

Having considered witness evidence relating to the negotiations between NHS Employers and the BMA in 2006, together with contemporaneous documentation, the Employment Tribunal concluded that the employing Trusts had incorrectly interpreted the TCS and that the rate interpretation was the correct approach. The junior doctors had not received the level of pay to which they were entitled, and their claims for unlawful deductions from wages and breach of contract were therefore upheld.

The decision confirms that the correct method of calculating a doctor’s pay in respect of career grades who return to training is to undertake a comparison between (1) the basic training grade salary plus the banding supplement and (2) ‘the protected salary’. ‘Protected salary’ meaning the PA equivalent of the new training grade working pattern, paid at the career grade rate. The doctor is then entitled to receive whichever is the most favourable. 

What to take away

Although this is only a first instance decision and the Tribunal’s interpretation of the TCS could be overturned by a higher court, this decision could have significant implications for other NHS Trusts. Depending on how they have interpreted the relevant pay protection provisions in the TCS, as a result of this decision, other NHS Trusts could face similar claims for unlawful deductions from wages and/or breach of contract. A number of similar claims were stayed pending the decision in this case, which will now proceed.

For further information on how this issue might affect your organisation, please contact Martin Hamilton or Rachael Heenan.