Refusing to increase a protected payment was not an unlawful deduction from wages contrary to the Employment Rights Act ( ERA ) 1996Barts and the London NHS Trust v Verma [2011] EWCA Civ 1129 | |||
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5/12/2011
A part-time NHS doctor working 7 hours weekly took up a full-time training position whilst undertaking approved training.Under the NHS contract clinical staff have their pay protected, but the pay of part-timers was not dealt with. The now full-time House Officer believed she should be paid the full-time rate for her previous job even thought her pay whilst training would be significantly higher than what she was earning previously. The Respondent Trust disagreed and limited the protected pay to the maximum pay for the sessional position at five sessions (17.5 hours) which meant that the claimant received a pay rise but not at the full-time rate. The doctor brought a wages claim asking for protected pay related to her previous job at the notional full-time sessional rate. The employment tribunal ruled that as she was previously working part-time it was right for her pay to be protected for the five sessions per week agreed by the Trust and this the Trust conceded. An appeal to the EAT succeeded and the claimant was awarded the notional full-time sessional pay, twice more than she had received previously. The Trust appealed to the Court of Appeal which overturned the EAT decision restoring the employment tribunal Judgment.The Court of Appeal by majority decided that only two sessions were in fact protected but the Trust's concession meant that the employment tribunal's ruling would stand. The thrust of the CA ruling was that protected pay is what it means, that the claimant should not have been left in a worse position when training than when working. This was not the case here as the claimant was trying to increase her earnings above the protected level. The CA in a judgment mainly relevant to NHS terms and conditions of service threw cold water on this notion.This was an APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL (The Hon Mr Justice Underhill) to the Court of Appeal (LORD JUSTICE RIX, LORD JUSTICE RIMER, and LORD JUSTICE ELIAS) Dr Verma began proceedings an unlawful deduction from wages claim contrary to Part 2 of the Employment Rights Act 1996. A breach of the Equal Pay Act was also complained and an uplift of compensation was sought on the grounds that the statutory grievance procedures had not been followed. These claims were in part successful but not relevant to the appeal which was concerned only with the deduction of wages claim. |
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| Transcript of the judgement:- Barts and the London NHS Trust v Verma [2011] EWCA Civ 1129 |
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| 2011 A new offer of employment must for the purposes of mitigation and compensation be considered seriously by a claimant. - Debique v Ministry Of Defence [2011] UKEAT 0075_11_1509 Pre-trial publicity may affect the possibility of costs being awarded against a claimant in the EAT. - Iteshi v Office of Water Services (Ofwat) [2011] UKEAT 0178_11_2209 Having a corporate financial interest in the outcome or being a governor of a body equates with apparent bias in ones own case - Kaur, R (on the application of) v Institute of Legal Executives Appeal Tribunal & Anor [2011] EWCA Civ 1168 The CJEU Advocate General advises that Part-time Judges are workers and that discrimination against different types of judges is not allowed. - O'Brien v Ministry of Justice [2010] UKSC 34 Costs are compensatory not punitive and reflect the "effect" of the conduct in question" - Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 Unheard and contested matters dismissed at a pre-hearing should not be the subject of a costs award - Dean & Dean (a firm) & Ors v Dionissiou -Moussaoui (Rev 1) [2011] EWCA Civ 1332 Ogden Tables may be acceptable to determine pension loss where cogent reasons are given - Chief Constable Of West Midlands Police v Gardner [2011] UKEAT 0174_11_1910 A holiday must be taken within a reasonable time period or the holiday will cease to be considered as providing a rest from work, but rather "a period of relaxation and leisure" - KHS AG v Schulte ECJ Case C-214/10 The emasculation of the employment tribunal system is the next stage on the road to a fundamental undermining of workers' rights and protections in Britain The level of compensatory award for unfair dismissal must be 'grossed up' before the application of the statutory cap. - Hardie Grant London Ltd v Aspden [2011] UKEAT 0242_11_0311 Even where lists of issues have been agreed between the parties they should be scrutinised by employment judges. - Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710 Female workers suffered indirect sex discrimination in a pension scheme but no loss (and therefore will not receive compensation) - Copple & Ors v Littlewoods Plc & Ors [2011] EWCA Civ 1281 In order to claim holiday pay under Reg 16 (1) of the Working Time Regulations an employee must have already have stated an intention to take it. - Fraser v Southwest London St George’s Mental Health Trust [2011] UKEAT 0456_10_0311 Even where lists of issues have been agreed between the parties they should be scrutinised by employment judges. - Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710 Claimants with Before the Event Insurance may choose their own solicitor - Brown-Quinn & Anor v Equity Syndicate Managment LTD & Anor [2011] EWHC 2661 The High Court issues guidance as to when contractual provisions are valid - Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB) Disciplinary processes must be conducted fairly and without undue delay - Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178 (QB) An employer's reasonable (but wrong) belief that a worker is working illegally is no defence to an illegal deduction from wages claim - Okuoimose v City Facilities Management (UK) Ltd [2011] UKEAT 0192_11_1309 Whistleblowers are not protected against victimisation by fellow workers - NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190 An employee sharing profits in the firm is not necessarily a partner - Williamson & Soden Solicitors v Briars EAT [2011] UKEAT/2011/0065_10_2705 Leaving a page out of the reasons for an EAT appeal was venial - Hine & Anor (t/a Hine Marketing Partnership) v Talbot & Ors [2011] UKEAT 1783_10_2706 In Equal Pay claims after a TUPE transfer, red circling will be accepted as constituting a genuine material factor defence - Scotland Co Ltd v Buchanan & Anor (Equal Pay Act : Material factor defence and justification) [2011] UKEAT 0042_10_2505 |
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