Mr P K Upadhyay v Manchester University NHS Foundation Trust: 2400048/2024
JUDGMENT
[1]The claimant’s complaint of unauthorised deductions from wages contrary to s13 of the Employment Rights Act 1996 succeeds in respect of payments for extra weekend shifts worked on 11 and 12 November 2022 and 24 and 25 June 2023.[2]The claimant’s claim that he was placed on the incorrect spinal pay point and therefore was not paid at the correct contractual pay rate resulting in unlawful pay deductions fails and is dismissed.[3]Basing the calculation on the hourly rate of £65 for weekend working, for 9 hours worked each day, the respondent must pay the claimant £2,340.00 subject to any deductions for tax and National Insurance which may be payable.REASONS
[1]The claimant represented himself and the respondent was represented by Ms. R. Kight of counsel. Prior to hearing oral evidence, I read the witness statements and documents referred to within them.[2]I heard oral evidence from: Mr. P.K. Upadhyay, the claimant; and Ms. C. Tudor, the respondent’s Medical Workforce Manager[3]I was provided with a hearing bundle consisting of 243 pages. In addition to the claim form, the respondent’s grounds of resistance, and the Tribunal’s Orders, I considered the documents referred to by the parties.[4]Oral evidence and the parties’ submissions were heard over the course of the morning. There being insufficient time to deliver an oral judgment, the decision was reserved.The Issues
[5]The claim was for unlawful deductions with regard to two matters alleged by the claimant, the first being that he was not paid for additional shifts carried out for the respondent’s NHS Trust in the period 16 September 2022 to 25 June 2023 (claim 1), and the second that he was placed on the incorrect spinal pay point on the Speciality Doctor pay scale and therefore had been underpaid during his tenure (claim 2). His case was that all of his service prior to his employment with the respondent should have been counted for the “specialty doctor” pay scale point.Findings of Fact
[6]The claimant was employed as a Speciality Doctor by the respondent between 12 September 2022 and 30 September 2023. He entered into Early Conciliation with ACAS on 31 October 2023 which ended on 4 December 2023. Taking into account the extension of time allowed by section 207B Employment Rights Act 1996, anything of which complaint is made which occurred prior to 1 August 2023 is, on the face of it, out of time. The claimant lodged his ET1 with the Tribunal on 3 January 2024.[7]The last pay deduction complained of in claim 1 related to payment for work done on 25 June 2023.[8]The claimant had been paid for shifts worked on 21 October 2022, 28 October 2022 and 30 December 2022 which were part of claim 1 in his ET1 in April 2023.[9]The claimant alleged that he had not been paid for work done on 16 September 2022, 30 September 2022, 12 and 13 November 2022, 11 and 12 March 2023, and 24 and 25 June 2023.[10]Payment for additional shifts worked was made on the basis of the Speciality Doctor submitting a paper claim within three months of the work being performed for approval and processing. Payment was made normally in the month following submission of the claim, and on occasion, the month after that. The pay date was on the 26th of the month (occasionally the 24th or 25th depending on whether the 26th fell on a Saturday or Sunday).[11]The bundle included a Timesheet which set out the hours worked on 12 and 13 November 2022 signed by the claimant on 30 December 2022 and countersigned on 30 January 2023. A claim form in respect of 16 and 30 September 2022 was signed by the claimant on 1 August 2023. A duplicate timesheet in respect of 12 and 13 November 2022 was signed by the claimant on 1 August 2023. A claim form for 11 and12 March 2023 was signed and dated by the claimant on 1 August 2023. A further claim form was signed by the claimant on 1 August 2023 for hours worked on 24 and 25 June 2023.[12]On the available evidence, the claimant made the claim for payment for hours worked on 12 and 13 November 2022 within the required 3 months of his having undertaken the duties. Given the claim was countersigned on 30 January 2023, the expected date of payment would have been 24 February or 24 March 2023.[13]The claimant’s claim for payment in respect of hours worked on 24 and 25 June 2023 was also made within the stipulated 3 months, the form having been signed on 1 August 2023. That being so, payment would have been made in the August or September 2023 payment of salary.[14]The other claims exhibited in the bundle were signed more than 3 months after the work was done to which they relate. They were therefore submitted outside the time provided for by the respondent for such claims to be made.[15]With regard to claim 2 brought by the claimant relating to the respondent allegedly appointing him on the wrong spinal pay point, the claimant was appointed on 12 September 2022 on a fixed term contract, initially for 6 months, as a speciality doctor. The post was that of Post CCT Fellow in Trauma and Orthopaedics. He worked full time and the contract was extended by a further 6 months.[16]The claimant was provided with a conditional offer of employment on 21 July 2022. The spinal pay point was identified in a summary sheet enclosed with that letter. An unconditional offer letter was sent on 9 September 2022. That letter set out that his salary was calculated in accordance with Schedule 12 of the TCS (2021)[17]The claimant’s pay point was selected in accordance with Schedule 12 of the Specialty Doctor 2021 Terms and Conditions (TCS). Accordingly, his starting pay took into account his previous service in a Speciality Doctor grade or equivalent. The claimant had the equivalent of 15 months at South Warwickshire NHS Foundation Trust from February 2020 to August 2021. The rest of his previous service was as a research or clinical fellow, speciality trainee or locum and not the Speciality Doctor pay scale (see letter dated 13 July 2023 from the People Operations Administrator at University Hospitals, Coventry and Warwickshire).[18]The claimant raised a grievance on 2 August 2023 with regard to his pay grade.[19]The grievance was considered on the papers which included Inter Authority information from the claimant’s previous employments.[20]The claimant contended that his pay point should not have been assessed on the basis of being someone with two years of postgraduate experience. He asserted that he had over 16 years’ experience in the medical profession and had undertaken fellowships in his previous employment. He contended that he should have been assessed in accordance with Schedule 12(5) of the TCS for Speciality Doctors and that he should have been paid at a higher pay point accordingly.[21]Schedule 12.5 of TCS states: “Where doctors are appointed to a post in the specialty doctor grade having already given substantive service in one or more posts in that grade, the staff grade or equivalent, or a higher grade (measured in terms of the current maximum rate of full time basic salary), all such service shall be counted in determining their starting salary.”[22]The respondent sought the advice of the NHS Employers’ organisation which provides advice on matters concerning NHS employment, by email on 13 September 2023. The advice sought was with regard to the starting salary for newly appointed Speciality Doctors who have been in Trust Grade/clinical fellow posts previously (employed on local contracts mirroring 2006/2016 TCS) with the specific question as to whether Clinical Fellow service would be deemed to be equivalent to a Speciality Doctor in respect of Schedule 12.5 TCS 2021.[23]The response from the Employers’ organisation’s Programme Manager, Medical Pay & Workforce dated 20 September 2023 stated “A doctor previously employed on a LED [Locally Employed Doctor] contract which mirrors the 2002/2016 TCS is not equivalent to a speciality doctor and service in this grade cannot be counted towards their starting salary in the speciality doctor grade”.[24]On 29 December 2023 the respondent rejected the claimant’s contention that he had been placed on the incorrect pay point. In doing so, the decision maker (Mr. Wikowski, Divisional Director, Trauma and Operations) clarified that the claimant’s previous employer, South Warwickshire NHS Foundation Trust, had assessed his starting salary incorrectly by taking into account all of the claimant’s previous experience which had been at registrar level rather than that which was “equivalent” to Speciality Doctor. Relevant Legal Framework Unlawful deduction from wages[25]Section 13 Employment Rights Act 1996 (ERA 1996) provides that an employer shall not make a deduction from wages of a worker employed by them unless the deduction is required or authorised by statute, or by a provision in the worker’s contract, or by the worker’s prior written agreement or consent.[26]Section 13(3) ERA 1996 provides that there is a deduction from wages where the total amount of any wages paid on any occasion by an employer is less than the total amount of the wages properly payable by him to the worker on that occasion.[27]Under section 23, a complaint of unlawful deduction from wages must be made within 3 months of the date of the payment of wages from which the deduction was made or, if there is a series of deductions, within 3 months of the last deduction. Contractual construction[28]I was referred to the case of Kayani v University Hospitals Birmingham NHS Foundation Trust UKEAT/0369/13/SM which is the judgment of Her Honour Judge Eady QC (now Mrs. Justice Eady KC) which provides a helpful summary of the proper approach to the legal principles in dealing with contractual construction particularly in the context of employment cases.[29]Judge Eady set out Lord Hope’s description of the object of contractual construction from his speech in Multi-link Leisure Developments Ltd v North Lanarkshire Council [2010] UKSC47 where he said: “The court’s task is to ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context. It must start with what it is given by the parties themselves when it is conducting this exercise. Effect is to be given to every word, so far as possible, in the order in which they appear in the clause in question. Words should not be added which are not there, and words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties. It may be necessary to do some of these things at a later stage to make sense of the language. But this should not be done until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise.”[30]This approach was applied by the Supreme Court (Lord Carnwath) in the case of Barts & London NHS Trust v Verma [2013] UKSC20, a case also involving a point of construction as to the pay protection provisions of TCS (terms and conditions of service).[31]Judge Eady found that the position is not changed by the fact that the particular contractual term is derived from a collective agreement which is then incorporated into an individual’s contract. The focus in each case is on determining what the parties meant by the language used. That is to be tested by ascertaining what a reasonable person would have understood the parties to have meant. Submissions[32]The claimant made oral submissions and Ms. Kight provided a written skeleton which she supplemented orally. It is not necessary to set them out in full, and no disrespect is thereby intended. I am grateful to both for their helpful arguments which I have taken into consideration in reaching my decision.[33]In summary, the respondent submitted that the deductions claims are out of time and the spinal pay point claim turns on the proper application and interpretation of schedule 12.5 TCS. The claimant’s submissions were to the effect that he had complied with the respondent’s procedures in submitting his payment claim forms and had been reassured by managers that they would be paid. As to the spinal pay point claim, he submitted that the way the starting pay was interpreted was about experience and he had many years of experience which underpinned his claim that his starting pay point should have taken into account what he submitted was his equivalent clinical experience.Discussion and Conclusions
[34]Whether repeated failures to pay what is due on a series of pay dates forms a series of deductions is a question of fact taking into the account the circumstances of the case.[35]There were two occasions when the claimant established that, having worked extra hours, he had complied with the respondent’s stipulation that he complete a claim for payment of those hours within 3 months of the date when the work was done. I am satisfied that the last claim in respect of 24 and 25 June 2023 was made in accordance with the respondent’s procedure in respect of authorising payment of the claim and was properly due to the claimant. By the extension of time afforded by s207B Employment Rights Act 1996 relating to ACAS Early Conciliation, I am satisfied that the claim was made within time to the Tribunal and I have jurisdiction to determine it.[36]Those claims which were made outside the time stipulated by the respondent’s procedure were not, in my view, made in accordance with the respondent’s procedures for authorisation of payment and therefore were not unlawfully deducted when there was a failure to pay them.[37]The question of whether the claim made in respect of the work done on 12 and 13 November 2022 can properly be regarded as being so linked to the claim for work done in June 2023 as to establish a series of pay deductions is more nuanced.[38]I have considered the interval between the two sets of pay deductions (c7 months) and the reason for them. In respect of the “reason”, it would appear to have been an oversight rather than a deliberate decision to withhold payment. The time interval between the November 2022 work done and the June 2023 claim is considerable but that is not necessarily a bar to considering the non-payments to be so linked as to form a series. They are undoubtedly similar, being claims for extra work performed by the claimant which were subject to the claim process laid down by the respondent and for the same amounts (£1,170 gross on each occasion). On the basis of the evidence, the non-payments appear to have been linked, in addition to the above, by payroll error so that payment which was otherwise due was not paid out. These similarities in my view allow the two non-payments to form a “series” so that the earlier non payment of the claim related to work done on 12 and 13 November 2022 was brought in time by virtue of its link to the claim relating to work done in June 2023.[39]With regard to the starting spinal pay point issue, it is clear that the case on that claim turns on the proper interpretation of Schedule 12, paragraph 5. On my reading, which accords with the Employers’ organisation’s email of 20 September 2023, the key phrase is the meaning attached to “substantive service in one or more posts in that grade, the staff grade or equivalent” (emphasis added). The interpretation given to this is that locally determined grades which mirror the 2002/2016 TCS are not equivalent to a speciality doctor and service in such grades cannot be counted towards their starting salary. I can find no grounds for determining the issue, as the claimant submitted I should, on the basis of his 16 years’ NHS experience as the contractual provision is in respect of service on a speciality doctor grade contract. For these reasons, I dismiss this element (claim 2).Conclusion
[40]I uphold the claimant’s application in respect of claim 1 in part and dismiss claim 2 entirely. Judge Callan Date 29 May 2025