Miss Mupfudze and others v Barts Health NHS Trust: 3204937/2022 and others
JUDGMENT
The complaint of unlawful deduction of wages is not well founded and is dismissed. Employment Judge Iman Dated: 26 July 2024 Case Number: 3204937/2022 & Others SCHEDULE List of claimants and claims[1]Miss Chidochashe Mupfudze (3204937/2022)[2]Miss Olajoke Adeoti (3204938/2022)[3]Mr Murshed Ahmed (3204939/2022)[4]Mr Sunday Aiyegbusi (3204940/2022)[5]Mrs Olufunke Bella (3204941/2022)[6]Mr Tolesa Buli (3204942/2022)[7]Mr Jan Cyriac (3204943/2022)[8]Mrs Olubumni Davids (3204944/2022)[9]Ms Nicole Forde (3204945/2022)[10]Mr Fred Francisco (3204946/2022)[11]Mr Anthony Iloba (3204947/2022)[12]Mr Masuf Mohammed (3204948/2022)[13]Miss Chidochashe Mupfudze (3204949/2022)[14]Mr Martin Ngoie (3204950/2022)[15]Mr Ibrahim Nur (3204951/2022)[16]Miss Mary Odulaja (3204952/2022)[17]Mr Shenfat Osinowo (3204953/2022)[18]Ms Saba Sahar (3204954/2022)[19]Ms Loveline Seriboh (3204955/2022)[20]Mr Togara Togara (3204956/2022)[21]Mr Nicanor Trivino (3204957/2022)[22]Mr Mohammed Wahid (3204958/2022)REASONS
[1]Miss Mupfudze brings this claim as the lead Claimant in respect of unlawful deduction of wages. There are 21 Claimants in total. All other cases have been stayed pending this decision. The Claimants in this case are employed as junior and/or senior radiographers in the imaging/radiology department at Newham University Hospital.[2]The following matters required determination by the Tribunal; a) What rates of pay were applied to the Claimant in respect of the out of hours work she undertook ( with reference to any local agreement and the NHS Agenda for Change document) and/or contractual agreements. b) What rates of pay should have applied to the claimant in respect of the work she undertook (with reference to any local agreement and the NHS agenda for Change) and/or contractual agreements. c) Further the Tribunal was ask to determine if a local agreement was in place as the Claimant maintained that there was no local agreement in place and the Respondent maintained that there was a local agreement in place as demonstrated by custom and practice.[3]During the hearing the Tribunal was asked at times to widely interpret the particulars of claim so that they included arguments and evidence in respect of spot rates of the agenda for change pay scale. This argument had not been adequately particularised and/or further clarified. My determination is in relation to the particulars of claim as they were pleaded and in respect of the out of hours and on call payments which was the position clarified by the claimant as of July 2024. The Respondent proceeded on this basis though accepting it was somewhat a different position to that pleaded but properly reminded the Tribunal that the claim related to payment owed 2019-2022.[4]There were a number of matters that were agreed between the parties; a) That there was no documentation before the Tribunal which evidenced a written local agreement was in place by the LA; b) That a rate of £16.10 had been paid for out of hours on call work since 2012 and that there had been no change in the rate; c) That agenda for change incorporated in principle to employees d) The work undertaken by the claimant for determination of rates of pay owed was on call work. Pre-liminary matters[5]At the start of the hearing Miss Pattinson sought to admit a supplementary statement from Mohamed El – Khouli (Interim Divisional Manager). She stated that it was only after the exchange of witness statements on 27 June 2024 that it became clear that the Claimant was now seeking to advance the further argument that the out of hours payments were now correctly identified as on- call payments. It was being advanced that the payments should have been paid at time and a half by virtue of Agenda for Change (“Afc”) provisions and the supplementary statement sought to address the clarified position.[6]Mr Clement objected to the admissibility of the statement on the basis that he may need to take further instructions. The Tribunal allowed the supplementary witness statement as it dealt with the clarified argument advanced by the Claimant and the Tribunal considered it was relevant to the issues to be determined and it was in the interests of justice and fairness to do so.. The matter was listed for 2 days. Mr Clement was able to seek further instructions at any point and address the Tribunal further should he need too.Evidence
[7]The Tribunal heard from 2 witness , Miss Mupfdze and Mr El- Khouli on behalf of the Respondent. It did not hear any other oral evidence.[8]Mr Mupfudze frequently lacked clarity in her answers. I found Miss Mupfudze quite fixated in her view and I consider that impacted on the quality of her evidence and made her evasive in her answers. I found aspects of her evidence implausible such as failing to carefully read an important table and document in the evidence in respect of the rates of on call payments. I found Mr El Khouli to be a reliable and consistent witness. I found him to be straightforward and balanced therefore where there is a conflict in the evidence I have preferred the evidence of Mr El Khouli.[9]Mr Mamun an Mr Akaluka did not attend and therefore the Respondent did not have an opportunity to challenge their evidence nor did the Tribunal have the opportunity to question them about their evidence. Therefore the Tribunal was able to attach very limited weight to the their evidence.Findings of fact
[10]The Respondent is an NHS Trust based in London providing healthcare services across five hospitals throughout the City of London and East London. Newham University Hospital is one of five sites that have an imaging/radiology department. This claim involving comparisons being made in respect of payment for on call duties with Royal London Hospital and Whipps Cross Hospital. The Tribunal was advised that Mile End Hospital and Barts Hospital do not have emergency departments and therefore comparisons could not be made and indeed were not made in respect of on call payments with those two sites.[11]Miss Mupfudze was employed as a Band 5 junior radiographer since 06 July 2020 in the capacity of bank staff and further, since 14 December 2020 as a permanent member of staff . Her claim relates to the fact that she was not being paid an on call allowance of 1.5 of the basic rate of pay or in effect time and a half. This issue was raised with the trust around March 2019 and again in January 2021. In her claim she explains that there was a disparity of pay for radiographers for the on call allowance at Newham Hospital compared to other sites.[12]On 01 April 2022, parties agree that rates were rectified by the Trust to reflect 1.5 of the basic rate of pay and this claim relates to the backdating of the on call allowance. The Claimants position is that the correct rate for on-call was in accordance with section 2.44 and 2.45 and Annex 29 contained within AfC and were incorporated in to the contract of employees. Specifically 2.45 stated as follows; 2.45 For work (including travel time) as a result of being called out the employee will receive payment at time and a half, with the exception of work on general public holidays which will be at double time ………………[13]Further relevant background to this claim is that AfC was introduced in 2004 giving rise to the NHS Terms and Condition of Service Handbook. It is not disputed between the parties that this applies to all staff.[14]The Tribunal was referred to Section 2 of AfC which deals with “Maintaining round the clock service (England)” and in particular section 2.26 and 2.27 which set out provisions for on-call and other extended services.[15]Annex 29 of AfC introduced an interim regime to deal with on-call rates amongst other terms and condition. Section 2.45 provides of the Annex states: For work (including travel time) as a result of being called out the employee will receive payment at time and a half, with the exception of work on general public holidays which will be at double time ………………[16]In March 2011, some time before the Claimant commenced working at the Trust, it is accepted by the parties by way of Amendment No: 27 that the interim regime ceased to have effect.[17]AfC references a local agreement could adopt the rate of the interim regime but that the interim regime could not be used in lieu of an agreement. It is a matter of contention between the parties as to whether a local agreement was ever put in place by the Trust.[18]The Claimant asserts that section 2.45 is a binding contractual obligation on the Trust from 2004. The Claimant submits evidence in the form of payslips which she says demonstrate that the Trust was in breach of section 2.45 by failing to pay the stipulated rate of 1.5 of the basic pay for out of hours on call duties. The Trust paid £16.10, whilst the 1.5 rate would have been £16.40. The Claimants position is that the Trust continued to pay this rate of £16.10 from 2007 to 2022. It is the Claimant's position that the failure to pay the contractual rate of £16.40 in 2008 was unlawful deduction of wages and that the unlawful deduction of wages has continued through the period of claim by the Claimant i.e. 2019 to 2022.[19]The Respondent states that each of the five hospital sites under the Respondent has had in place its own local agreement whereby the terms and conditions for hours worked outside of normal working hours undertaken by those in the imaging/radiology department are agreed. Each agreement has been independently negotiated before the hospital sites joined the Respondent.[20]They state that though the job title of radiographer is similar across sites the infrastructure and machines differ which determines the ability of the site to run services out of hours and therefore the remit of the roles. They state that the claimants have been at all times paid in accordance with their contracts of employment and the relevant local agreements.Legal Principles
[21]The general prohibition on deductions is set out in section 13(1) of the Employment Rights Act 1996 ("the 1996 Act") which states that: "An employer shall not make a deduction from wages of a worker employed by him."[22]Section 27(1) defines wages as "any sums payable to the worker in connection with his employment".[23]The Claimant claims that she was entitled to be paid at the rate of time and half under AfC for the on-call work which she considers amounts to £4, 678.58. The burden is on the Claimant to establish that she is owed the amount. The Tribunal must decide on the ordinary principles of common law and contract whether this was the amount of wages properly payable to the Claimant.[24]The Respondent submits that in 2021 and the start of 2022 the Claimant was entitled to be paid in line with the local agreement as captured in a payment schedule contained in a table within the documentation and, as evidenced in her wage slips she was paid at those rates namely £16.10 per hour. Tribunal Conclusions What rates of pay were applied to the Claimant in respect of the out of hours work she undertook (with reference to any local agreement and the NHS Agenda for Change document)?[25]I am satisfied that the rate payable was £16.10 at the relevant time (prior to April 2022) and this was what was paid, as confirmed in the claimants payslips and further captured in documentation, submitted to the Tribunal as the rate payable for a Band 5.[26]I further accept that on-call work was undertaken over and above an employee's basic contractual hours on a voluntary basis. The table setting out the pay arrangements for on-call shifts contained within the documentation is very clear. The radiographers were in my view clearly aware of the rates they would be paid if they elected to undertake on-call work.[27]Further, the Claimant accepted that the department worked on-call shifts under this pay arrangement over approximately a 10-year period The Claimant began undertaking on-call shifts in 2020 and she continued to do so, at this rate, throughout 2020, 2021 and 2022 until a new pay agreement was negotiated.[28]The evidence demonstrates that discussions around the new pay agreement commenced around 2019, in an email dated the 28 February 2019 sent at 10:36 from Mr Mamun to Mr Davids it states, "Please see attached our current [emphasis added] in call shifts and payments. Please could we be put on the flat rate £24 per hour in line with the Royal London on call payments?"[29]The response on the same day from Udesha Davids to Kathryn Dean, Barry Voton, Mohammed Mamun and Daniel Paulson states that the pay rates currently at Newham University Hospital for Band 5 are £16.10.[30]I do not consider that that email to be anything beyond a confirmation of the current rates of pay and comments around the hypothetical feasibility of an uplift to pay and a request from staff to amend the current agreement. Mr El Khouli was clear that this was the rate of pay and was known by the staff. Was there a local agreement in place?[31]I am satisfied that there was a local agreement in place. I have not been persuaded that there was no local agreement in place. Notwithstanding it was not written, I accept that there was a custom and practice in place and that the radiographers were being paid the rates set out in the table contained within the documentary evidence.[32]I have referred to the table within the documentation and I have also mentioned the email dated the 28 February 2019, in which Mr Mamun makes reference to the current on call shifts and payments which sets out the rates of pay. This demonstrates that there was an understanding in respect of what the rates were as it informed the discussions between staff and management.[33]Further, Mr Mamun had held the position of senior radiographer since May 2014 and had worked at the Trust since 2008. He is demonstrating an understanding within the documentation that this was the current payment arrangement in his correspondence. Mr El Khouli in his evidence was clear in his evidence that this was the payment arrangement which captured the local agreement in place and although he did not know how this table had been created, it had been sent to him by superintendents who were aware of the on call system and out of hours working.[34]The documentation also demonstrates that the discussions which took place in 2021 were around parity of pay with Whipps Cross and Royal London Hospitals. The Tribunal accepts that this was, as Mr El Khouli confirmed, about reviewing the existing local agreement and agreeing higher rates of pay for staff undertaking on-call staff to bring their pay in line with the other two hospitals.[35]I further accept that the staff participating in the out of hours service was a voluntary arrangement and consider that the reference in the documentation in respect of action to be taken if staff wished to withdraw from the scheme was due to the one-off exceptional circumstances that presented, namely that there was a threatened wholesale withdrawal which I accept potentially would place patient health and safety at risk not just at this hospital but at other sites as a whole.[36]Miss Mupfudze also stated in her answer that she recalled this rate (namely £16.10) being this since the beginning of time . I consider that the payment arrangement as per the local agreement were in place at the relevant time and the rates were clear. The radiographers had a clear awareness of what they were being paid and that this had been in place for some time and find that the claimants have been at all times paid in accordance with their contracts of employment and the relevant local agreements. What were the terms of the Local agreement in respect of Annex 29?[37]There is no dispute between the parties that AfC does incorporate into contractual terms of employees but the Respondent was clear that this is only when it related to valid contractual clauses . Miss Mupfudze relies on clause 2.44 and 2.45 as part of her claim and Annex 29 in respect of the payment of time and a half owed.[38]I have been referred to paragraph 2.27 of the handbook which states that employees on call are entitled to receive an on call payment. From April 2011 this payment will be determined by local agreement on harmonised payments for on call and other extended service cover. The paragraph goes on to state that local agreements need to be consistent with the 12 principles set out in Annex 29.[39]I accept that it would have been best practise to capture the local agreement in writing, but that does not mean that a well- established custom and practice was not reflecting a local agreement. There was little evidence presented as to how this agreement had come into place. Mr El- Khouli stated that these discussions would have occurred before the time he commenced working at the hospital and therefore was unable to assist further in respect of that point but he was clear that this was the local agreement in place. However, there is nothing before me to suggest that there was anything to invalidate the local agreement that he understood was in place given it is well established and had not been challenged by the unions over a period of time. I am therefore satisfied that it was a valid local agreement.[40]The Claimants position is that the Trust has not presented evidence to suggest that the rates were negotiated by local partnership which is made up of the Trust and the recognised Trade Unions.[41]It is clear to me that it was the understanding of the Trust at the time in respect of the local agreement and rates that existed as evidenced in the documentation and table the Tribunal was referred too and that the radiographers were aware of this rate also.[42]The documentary evidence contains a Feasibility Report which was produced by the HR Manager on 8th March 2022 . It makes reference to a local agreement and though at paragraph 2.0 of that report it stated that the Local Agreement for Newham University Hospital was attached to the Feasibility Report and no attachments or written agreement was produced. It was persuasive evidence of their understanding there was a local agreement at the relevant time.[43]Further I accept the argument that each Trust has its own negotiated local agreement. I have accepted the evidence of Mr El- Khouli in that regards and also the evidence contained in the feasibility study in respect of this.[44]Mr Clement seeks to persuade me that that the transitional arrangements should have applied in vacuum of a local agreement. As I have found that a local agreement was in place I do not need to go further. However, I will deal with this point for completeness on the basis that if the Tribunal was wrong about its conclusion of the existence of a local agreement, namely, what would the position be if in the alternative the Tribunal had concluded that no local agreement was in place.[45]The position of the NHS Staff Council was expressed in the FAQ 6 document, in which it stated that the interim regime cannot be a default position in the absence of a local agreement in place by March 2011.[46]The parties accept that that the transitional arrangements only applied until March 2011 in respect of on call payments. Annex 29 introduced an interim regime and it was accepted by way of amendment no 27 that the interim regime ceased to have effect in March 2011. FAQ question 6 is plain on my interpretation that by 1 April 2011, on call arrangements will be subject to local agreement and transitional arrangements contained within the interim regime are not to be applied as a default option. I do not find the deleted clauses incorporated into the Claimants contract after the 01 April 2011.[47]Mr Clement seeks to persuade me by asking the Tribunal to rely on wage slips that show payments made in 2007 and 2008 which demonstrate a failure to comply with interim regime yet no witnesses were called by the Claimant to explain payment calculations over that period of time. The Claimants’ evidence before me is insufficient in respect of financial payments and arrangements made from 2008-2011. This is a claim that relates to payments for the period 2019 - 2022.[48]FAQ 6 states for clarity: Can organisations implement current Agenda for Change "interim regime" in Section 2 as a default position? No. From 1 April, on-call arrangements will be subject to local agreement. Local partnerships can agree to use the Interim Regime as part of the harmonised arrangements (see the Implementation Guidance for more information) but it should not be applied as a default option in lieu of local agreement.[49]I reject the Claimants argument that where a local agreement is not in place by 01 April 2011 the interim regime will continue to apply as that is contrary to what FAQ 6 states as it would then be a default position. There is a requirement that the there is a positive agreement to adopt the interim regime which did not occur in this case.[50]I also reject the Claimants alternative argument, that contractual terms must be interpreted into the Claimant contract of employment that staff should continue to receive an on-call allowance of time and half, as the parties would have expected this in the absence of a local agreement following the end of the interim regime. This argument is wholly rejected. The e-mails referred to above demonstrate both the Trust’s and the staffs understanding of the out of hours rates of pay at Newham University Hospital. These rates of pay were clearly understood by both parties, hence why there was a request for an uplift in the email. Therefore the rates as set out in the table which included the payment of £16.10 for Band 5 were the contractual terms that existed between the parties.[51]The Claimant has therefore failed to establish her claims in respect of this claim and therefore the unlawful deduction of wages claim is not well founded and dismissed.