Pay protection under the 2002 Terms and Conditions

Hospital doctors

This information relates to the closed 2002 terms and conditions.  For information about pay protection under the current terms and conditions please refer to the 2016 TCS pages.  

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. 

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, 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.

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