08 / 4 / 2014 3.05pm
There are two types of pay protection for doctors in training under the current contract. Our interpretation of these contractual provisions are as follows.
- Pay protection can offer financial security to a career grade returning to training, but it is a complex and regularly disputed issue. We can discuss individual cases with employers and would suggest that you contact us directly.
- We've taken advice from employing organisations, legal advisers and other stakeholders, to produce a paper setting out our understanding of the purpose and application of pay protection relating to banding in respect of junior doctors.
Pay protection for junior doctors returning to training
The Employment Tribunal (ET) has handed down its decision in a case in which two junior doctors claimed unlawful deductions from wages based on their employers’ interpretation of the pay protection arrangements in their contracts, when returning to training.
In a decision which could have significant implications for all NHS trusts, the ET ruled that the employing trusts had misinterpreted the relevant provisions and upheld the junior doctors’ claims.
The doctors were both previously employed in NHS career grades as specialty doctors. Both had received approval to return to training grade posts in order to advance their careers, and the issue of pay protection then arose.
The parties differed on how the words ‘protected salary’ should be interpreted. On behalf of the doctors, the British Medical Association (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 trusts, following NHS Employers' guidance based on its interpretation of the relevant paragraphs of the terms and conditions, argued conversely that ‘protected salary’ referred to basic career grade salary only.
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 terms and conditions of Service (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 programmed activity (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.
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, trusts
could face similar claims for unlawful deductions from wages and/or breach of
contract. In the circumstances, employers may wish to review their current
approach to pay protection to determine the potential risk arising from future claims.
The NHS Employers guidance on pay protection on return to training has been
temporarily withdrawn as we consider the outcome of this case and its potential
impact on provisions in the new junior doctors’ contract.