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Ed Kemp Successful in the Supreme Court

Ed Kemp
The Supreme Court has today handed down Judgment in Dr. S Verma v. Barts and the London NHS Trust UKSC 2011/0246. A copy of the Judgment can be found here. The appeal concerned the meaning of a pay protection provision in the NHS Terms and Conditions for Hospital Doctors. This provision is applicable to practitioners who step down a grade in order to re-train. 

The Supreme Court ruled that part-time practitioners who take a full-time training post in a lower grade are entitled to be paid in that post at the full-time equivalent of pay in the previous post. In the Appellant’s case, she was a Hospital Practitioner and paid at a sessional rate before she stepped down to re-train. In such cases, the sessional rate needs to be converted to an hourly rate which is applied to the hours worked in the lower grade post.

The Supreme Court has reversed the majority Court of Appeal decision that practitioners are protected for the pay they actually received in the higher grade (in the Appellant’s case £11,366 p.a. for working two sessions per week rather than the full-time equivalent annual basic salary of £65,931.42). The Court of Appeal’s decision meant that part-time workers who re-entered into full time training posts had no pay protection at all (where, as in the Appellant’s case, the basic salary in the training grade was higher than the salary actually received in the higher grade), or no meaningful pay protection.

Revised terms, which included revised pay protection arrangements, came into force on 1st August 2007. The revised terms post-date the Appellant’s contract with the Respondent. However, the Supreme Court’s decision will affect, until such time as the terms are re-amended, all current and future doctors within the NHS who re-enter training because the revised pay protection arrangements (despite some significant changes to the conditions for eligibility to the benefit) are materially the same. 

This case demonstrates the importance of drafting clear contractual terms particularly where they confer important rights to employees. As the Supreme Court noted “the differences of view between such experienced judges, even after the intense analysis to which the condition was subjected in the Court of Appeal, is testament enough that the condition is not well-drafted…

Ed was led in the Court of Appeal and Supreme Court by Karon Monaghan QC and was instructed by Prisca Bradley at Darbys LLP.

NHS Employers intervened and they were represented by Frederic Reynold QC and Nadia Motraghi.

Ed appeared at all stages below in this litigation which began in 2008. In the Judgment he is personally mentioned for his “diligence” having unearthed previous versions of the NHS Terms and Conditions, going back to 1949. Ed has a strong employment practice in the medical field using his specialist knowledge of the terms. He has been instructed by both doctors and NHS Trusts on such matters.

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