Ms I Valcheva and Others v Greater Glasgow Health Board: 4100092/2024 and Others
JUDGMENT
[1]The complaint of unauthorised deductions from wages is not well-founded is and is dismissed.[2]The complaint of breach of contract, having been withdrawn, is dismissed.REASONS
[1]The claim is for unauthorised deductions from wages pursuant to section 13 Employment Rights Act 1996 (ERA). On presentation of the ETI claim form the claim was registered under the jurisdictions of unauthorised deductions from wages and breach of contract. At the case management preliminary hearing on 16 December 2024 Mrs Winstone clarified that the claim is brought as a complaint under section 13 ERA only. Mrs Winstone clarified this again at the final hearing. In any event the Tribunal only has jurisdiction in respect of a breach of contract complaint if the complaint arises or is outstanding on the termination of employment. There was no evidence led about whether the claimants remained employed by the respondent or not. Accordingly, the complaint of breach of contract having been withdrawn is dismissed.[2]The claim is part of a multiple arising from the same set of facts. The claimants are Ivaila Valcheva (case number 4100092/2024); Armin Naziri (case number 4100094/2024); Ben Johston (case number 4100095/2024); Harry Tracey (case number 4100096/2024); Liam Cooper (case number 4100097/2024) and Amy McIntosh (case number 4100098/2024). Mrs Winstone clarified that the claims are identical for each of the claimants.[3]There was a joint file of productions extending to 531 pages.[4]Dr Harry Tracey gave evidence on behalf of all the claimants. Mr Colin Drury – Consultant Orthopedic Surgeon / Lead Clinician, Ms Hannah McNeill – Clinical Service Manager; and Ms Mary Brown – Chair of the Banding Appeal Panel gave evidence on behalf of the respondent.[5]ACAS conciliation commenced on 26 October 2023 and ended on 7 December 2023. The claim form was presented on 5 January 2024.Issues
[6]This is a complaint under section 13 ERA (unauthorised deductions from wages). On the first morning of the final hearing the representatives agreed a final list of issues for determination by the Tribunal. The list is included below as an Appendix.[7]In summary, the issue to be determined is - what were the wages properly payable by the respondent to the claimants and did they receive those wages.[8]The parties agreed that there was no deduction made which was required or authorised by statute. Findings in fact[9]The Tribunal made the following essential findings in fact, necessary to determine the claim.[10]The claimants were employed by the respondents as Foundation Year 1 or Foundation Year 2 Junior Doctors between around 3 August 2022 and 1 August 2023. In the period from around 5 Apri 2023 to 1 August 2023 they worked on the Trauma and Orthopedics Department rota at Glasgow Royal Infirmary. The rota was called NG51. The rota had been allocated by the respondent as Band 2B, prior to the claimants commencing work on the rota. The rota banding determines the supplement payable for shifts worked, in addition to basic salary.[11]The respondent was required to monitor rota banding twice a year to identify whether the allocated band remained applicable to the actual working pattern. The NG51 rota had been monitored in October 2022 and 30-minute breaks had been achieved in the monitoring period on 84% of occasions. The threshold was 75% of occasions for Band 2B allocation.[12]A further monitoring exercise was carried out between 15 and 28 May 2023. The result of the monitoring was that the claimants were getting a 30-minute break on 72% of occasions during the monitoring period. This was below the threshold of 75% for Band 2B allocation.[13]Following the result of the monitoring exercise, the respondent informed the claimants and the BMA that it considered the monitoring period to be unrepresentative of normal practice. The respondent identified the unexpected nature of the result, and that no issues with taking 30-minute breaks had been escalated by the claimants to the rota manager, to Ms Hannah McNeill – Clinical Service Manager or to the consultants in the trauma and orthopedics department.[14]The claimants had not raised with the respondent prior to the monitoring period that there was a difficulty in them taking 30-minute breaks on at least 75% of occasions, whilst working in the orthopedic and trauma department.[15]On 26 October 2023 the BMA wrote to the respondent on behalf of the claimants. The BMA said “The doctors do not agree with management’s assessment of the monitoring period as non-representative and believe the monitoring results accurately reflect their experience working on the rota. As such they believe the rota to be noncompliant / Band 3 and wish to exercise their contractual right to a Banding Appeal and formally request that a panel is convened to hear the Appeal as soon as possible”.[16]The Banding Appeal hearing took place on 24 May 2024. The Banding Appeal panel was chaired by Ms Mary Brown. The panel comprised individuals from different backgrounds including from the management and junior doctor sides, an individual who was familiar with the working arrangements of the case and an independent external assessor who was from a different health board. This was as required by the Junior Doctor Banding Appeals Good Practice Guidance (“2008 Banding Appeals Guidance”).[17]The Banding Appeal panel heard the claimants’ case which was presented on their behalf by Fiona Logan of the BMA. Ms Logan said that the responses from those who participated in the monitoring showed 30-minute breaks were achieved on 72% not 75% of occasions; re-monitoring could have taken place before the claimants left the department and there had been delays in the process; changes were made to the rota after the claimants had left which meant it could not be re-monitored; and rules need to be followed even if the monitoring outcome was just under the 75% compliance threshold.[18]The Banding Appeal panel also heard the case of the orthopedic and trauma management team which was presented by Ms McNeill. Ms McNeill said that when the rota had been monitored in October 2022 it was compliant; there were discrepancies in the data across those claimants who had participated in the monitoring; the wards had been fully staffed during some of the monitoring dates and where 30 minute breaks had not been achieved on those dates no reason or a lack of detail had been provided at the time by the claimants; if two more shifts had been achieved the rota would have been compliant; there had been no re-monitoring before the claimants moved on from the department due to planned strikes; and it had been communicated to junior doctors at induction that they need to work together to take 30 minute breaks.[19]The panel adjourned thereafter to discuss and reach a decision. The claimants’ banding appeal was not upheld. The appeal panel accepted the reasons given by the orthopedic and trauma department about why the monitoring exercise was not representative of rota NG51.[20]The decision of the banding appeal panel was that the monitoring exercise was not representative of rota NG51.[21]The decision of the banding appeal panel was that the pay supplement for rota NG51 remained Band 2B and did not increase to Band 3. In accordance with the 2008 Banding Appeals Guidance, no further right of appeal was given to the claimants. NHS Circular PCS (DD)2007/10 (“TCS 2007”)[22]The claimants were employed under the Terms and Conditions of Service for Junior Doctors in Scotland as set out in the NHS Circular PCS(DD)2007/10 (“TCS 2007”).[23]The TCS 2007 provide for pay supplements called bands which are applied to rota arrangements for doctors in training grades including Foundation Year 1 and Foundation Year 2 Junior Doctors (paragraph 21 TCS 2007). The pay band applied to the rota arrangement worked by the claimants, when they commenced the rota on around 5 April 2023, was Band 2B.[24]Paragraph 22(m) TCS 2007 sets out the process for reallocating posts to new pay bands due to changes in working practices. It sets out various stages with stage five being the final stage. Stage five is the appeals mechanism referred to at paragraph 22(l) TCS 2007.[25]Paragraph 22(l) TCS 2007 states “Where either the employing authority or the practitioner rejects the opinion of the New Deal Support Group in any case where there is a dispute regarding the allocation of posts to pay bands or in cases where the Regional New Deal Support Group finds it necessary to intervene, there is a right of appeal”.[26]Paragraph 22(l) TCS 2007 provides that an appeal shall be heard by a local committee and sets out the constitution of the appeal panel.[27]Paragraph 22(l) provides that decisions of the appeal panel which confirm the appellants were underpaid, shall lead to them receiving appropriate reimbursement, backdated to the date of the changes. Paragraph 22(l) also provides that decisions of the appeal panel which confirm the employing authority’s original decision shall lead to the employing authority receiving appropriate reimbursement, backdated to the date of the changes.[28]The TCS 2007 does not provide for any further right of appeal after the stage five appeal mechanism which was followed by the claimants and the respondent.[29]The Regional New Deal Support Group referred to at paragraph 22(l) no longer exists. NHS Circular PCS (DD)2016/2 (“2016 Guidance”)[30]Since 17 October 2016 NHS employers in Scotland must comply with Doctors in Training - New Deal Monitoring Guidance. This is set out in the NHS Circular PCS(DD)2016/2 (“2016 Guidance)”.[31]Paragraph 17 of the 2016 Guidance states “Monitoring can be declared unrepresentative where there are valid and agreed reasons as to why the outcome of the exercise differs from the expected outcome. This must be agreed by all parties involved, and re-monitoring should take place as soon as possible within the same six month period. Use of post-monitoring meetings will support to facilitate this process and ensure there is accurate and robust monitoring of doctors in training working hours.” (page 254). Regional Junior Doctor Liaison Group (“RJDLG”)[32]Following issue of the 2016 Guidance, the respondent and the local junior doctor representatives of the British Medical Association (BMA) discussed the terms of the 2016 Guidance at the Regional Junior Doctor Liaison Group (“RJDLG”). The RJDLG consisted of representatives from Ayrshire & Arran Health Board, Dumfries & Galloway Health Board, Forth Valley Health Board, Lanarkshire Health Board, the respondent and the BMA.[33]A meeting of the RJDLG took place on 12 March 2021. The RJDLG discussed local arrangements about monitoring processes for junior doctors employed by the respondent.[34]On 12 May 2021, Fiona Logan (Senior Employment Adviser, BMA Scotland) sent an email to the respondent and the other members of the RJDLG attaching a draft of local monitoring guidance. The email stated “As agreed I have used the National Guidance as the starting point and then made suggested additions/amendments”. The National Guidance was the 2016 Guidance.[35]On 24 May 2021, Ms Logan sent a further email to the parties stating “I have updated the draft Monitoring Guidance based on comments so far, and plan to send it out with the RJDLG Agenda on Wednesday so please let me know if you have any comments before then.”[36]An RJDLG meeting took place on 28 May 2021. The notes from the meeting confirm that actions were agreed between the parties including the requirement that all attendees provide comments to Ms Logan on the draft local monitoring guidance document by 11 June 2021.[37]An RJDLG meeting took place on 25 June 2021. The notes from that meeting record that in relation to the local monitoring guidance document (referred to as Regional Monitoring Guidance) further amendments would be circulated by 28 June 2021 within each health board as required and to the Local Negotiating Committees (LNCs) for final agreement by 9 July 2021.[38]An RJDLG meeting took place on 27 August 2021. The local junior doctor BMA representatives and the respondent confirmed their agreement to the local monitoring guidance document. The meeting notes record that the document was to be shared by all parties with clinical managers and junior doctors across all boards. The final document was called the Regional Monitoring Guidance. It is referred to in this judgment as the 2021 Guidance. RJDLG Regional Monitoring Guidance (“2021 Guidance)”[39]Paragraph 18 of the 2021 Guidance states “Monitoring can be declared unrepresentative where there are valid and agreed reasons as to why the outcome of the exercise differs from the expected outcome. This must be agreed by all parties involved, and re-monitoring should take place as soon as possible within the same six month period. If there are any concerns regarding the representativeness of the monitoring exercise, within 2 weeks of the monitoring results being made available a meeting will be held between service management, the trainees on the rota and the monitoring team to determine whether there are valid and agreed reasons why the monitoring period should be declared unrepresentative. It is recognised that it is not always possible to meet in person or virtually. In these circumstances, it is acceptable to communicate electronically via e-mail. If agreement cannot be reached the matter can be referred to a Banding Appeal which will be conducted in line with the Junior Doctor Banding Appeals Good Practice Guidance. While the Banding Appeal process is ongoing a further period of monitoring may be carried out.”[40]The purpose of the 2021 Guidance was that it would apply at a local level rather than the 2016 Guidance. Junior Doctor Banding Appeals Good Practice Guidance (“2008 Banding Appeals Guidance”)[41]On 7 April 2008 the Junior Doctor Banding Appeals Good Practice Guidance (“2008 Banding Appeals Guidance”) was published. It was agreed by a joint negotiating committee of junior doctors and employers.[42]Paragraph 3 of the 2008 Banding Appeals Guidance says “ A banding appeal is a formal process under TCS for use when there is a dispute between the junior doctors and their employer over the correct banding of a rota (theoretical and/or monitored). An appeal should only be convened if informal discussions between the junior doctors, the employer and the Regional New Deal Support Team have not resolved the issue to the satisfaction of either the junior doctors or the employer...”[43]Paragraph 7 provides that the Banding Appeal panel comprise two representatives of the respondent nominated by the chief executive or medical director (one of whom shall chair the panel); one representative of the respondent of a grade which is conversant with the working arrangements applicable to the case; one representative from a regional list supplied by the BMA Scottish junior doctors committee; and one independent external assessor.[44]The Regional New Deal Support Team referred to at paragraph 3 no longer exists.[45]Paragraph 7 of the 2008 Banding Appeals Guidance referred to the five members of the appeal panel from the TCS 2007.The banding appeal panel on 24 May 2024 was constituted in accordance with this paragraph.[46]Paragraph 20 of the 2008 Banding Appeals Guidance says “Both sides must abide by the decision of the appeals panel. Where this decision finds in favour of the junior doctors, back payment of salary shall take place within one calendar month following the appeals panel date. Where the panel finds in favour of the employer full repayment shall be sought of any overpayment of salary...”.[47]The 2008 Banding Appeals Guidance does not provide for any further right of appeal. Observations on the evidence[48]This judgment does not seek to address every point upon which the parties have disagreed. It only deals with the points which are relevant to the issues the Tribunal must consider, to decide if the claim succeeds or fails. If the Tribunal has not mentioned a particular point, it does not mean that it has overlooked it. It is simply because it is not relevant to the issues.[49]The standard of proof is on balance of probabilities. This means that if we consider that, on the evidence, the occurrence of an event was more likely than not, then we are satisfied that the event in fact occurred. Likewise, if we consider that, on the evidence, an event's occurrence was more likely not to have occurred, then we are satisfied that it did not occur.[50]The witnesses gave their evidence in a straightforward manner. The Tribunal was satisfied that they were all doing their best to assist the Tribunal to determine the issues before it.[51]There was a dispute in the evidence about whether the claimants had raised what they asserted were difficulties in taking 30-minute breaks prior to the monitoring period. The Tribunal saw some Whatsapp messages, at least one of which appeared to include Ms McNeill, which referred to a shift being short staffed. The messages to which the Tribunal was taken did not refer to breaks or refer to the claimants being unable to take 30-minute breaks. The Tribunal heard oral evidence about a particular weekend, not during the monitoring period, when there was a particular issue with staff shortages resulting in a very stressful working environment. The Tribunal accepts that this was the case. However, the Tribunal was satisfied on balance that the claimants had not raised with the respondent prior to the monitoring period that there was a difficulty in them taking 30-minute breaks on at least 75% of occasions, whilst working in the orthopedic and trauma department.Relevant law
[52]Section 13 ERA says: “Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. (2). In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.(4).....(5).....(6).....(7).....(8).....” Submissions[53]Mrs Winstone and Mr MacNeil both provided written submissions to the Tribunal and supplemented these with oral submissions. The Tribunal carefully considered the submissions of both parties during deliberations and has dealt with the points made in submissions, where relevant, when setting out the facts, the law and the application of the law to those facts in reaching its decision. It should not be taken that a submission was not considered because it is not part of the discussion and decision recorded. Discussion and decision[54]The claimants’ case, as summarised in the concluding paragraph of Mrs Winstone’s written submissions is as follows. With only one set of data which showed that the claimants had achieved 72% of breaks (of 30 minutes) in the monitoring period and not 75%, the respondent “should have re-branded them” at Band 3 level. The failure to do so is an unauthorised deduction from wages.[55]Mrs Winstone’s submissions refer to paragraph 17 of the 2016 Guidance. Paragraph 17 states “Monitoring can be declared unrepresentative where there are valid and agreed reasons as to why the outcome of the exercise differs from the expected outcome. This must be agreed by all parties involved, and re-monitoring should take place as soon as possible within the same six month period”. Mrs Winstone’s submission is that the reasons why the outcome of the monitoring exercise differed from the expected outcome had not been “agreed by all parties involved”, as the claimants did not agree with the respondent’s reasons. Therefore, she submitted, that was the end of the matter and the respondent was unable to declare the monitoring exercise unrepresentative. It followed, she submitted, that as 30 minute breaks had been achieved on 72% of occasions in the monitoring period and not 75% of occasions, the NG51 rota required to be re-banded at Band 3.[56]What Mrs Winstone does not do, is go on to look at the 2021 Guidance. The Tribunal was taken to the documentation in the file about the purpose of the 2021 Guidance and how this document had been negotiated between various health boards (including the respondent) on the one hand and the BMA (representing junior doctors) on the other hand. The Tribunal was satisfied from the correspondence from Fiona Logan, Senior Employment Adviser, BMA Scotland to the various health boards that the purpose of the 2021 Guidance was that it would apply at a local level rather than the 2016 Guidance. The 2016 Guidance had been used as a starting point by the BMA, amendments had been made by the BMA, these had been sent to the various health boards and then to the Local Negotiating Committees (LNC) for final agreement. The 2021 Guidance was agreed at an RJDLG meeting on 27 August 2021. The Tribunal was satisfied that the 2021 Guidance was the relevant document to consider when determining monitoring obligations.[57]The 2021 Guidance at paragraph 18 begins with the same wording as paragraph 17 of the 2016 Guidance, as set out above. Paragraph 18 then goes on to say “If there are any concerns regarding the representativeness of the monitoring exercise, within 2 weeks of the monitoring results being made available a meeting will be held between service management, the trainees on the rota and the monitoring team to determine whether there are valid and agreed reasons why the monitoring period should be declared unrepresentative. It is recognised that it is not always possible to meet in person or virtually. In these circumstances, it is acceptable to communicate electronically via e-mail. If agreement cannot be reached the matter can be referred to a Banding Appeal which will be conducted in line with the Junior Doctor Banding Appeals Good Practice Guidance....”[58]Having regard to paragraph 18 of the 2021 Guidance, the Tribunal was satisfied that the next step, as set out in that paragraph, had been followed by the BMA (on behalf of the claimants) and the respondent. There were concerns from the respondent regarding the representativeness of the monitoring exercise. There was communication between the BMA and the respondent about the reasons why the respondent considered that the monitoring period should be declared unrepresentative. The BMA did not agree with the respondent’s reasons. On 26 October 2023 the BMA asked for the matter to be referred to a Banding Appeal. As set out in the 2021 Guidance, Banding Appeals are conducted in line with the Junior Doctor Banding Appeals Good Practice Guidance (“2008 Banding Appeals Guidance”).[59]It was common ground between the parties that some aspects of the 2021 Guidance had not been complied with by parties. There had been no remonitoring of the claimants within the same six-month period and the meeting or email communication about the concerns about the representativeness of the monitoring exercise had not taken place within two weeks of the monitoring results being made available. It was also common ground, as set out in the final list of issues for determination, that in so far as the respondent did not follow the 2021 Guidance regarding re-monitoring and timescales this had no bearing on the claimants’ entitlement or otherwise to a banding uplift.[60]Turning to the 2008 Banding Appeals Guidance, there was no dispute between the parties about the composition of the appeal panel. It comprised the members as set out in the 2008 Banding Appeals Guidance. The claimants’ banding appeal was not upheld. The decision of the banding appeal panel was that the monitoring exercise was not representative of rota NG51 and therefore the pay supplement for rota NG51 remained Band 2B. The 2008 Banding Appeals Guidance provided that both sides must abide by the decision of the appeals panel.[61]Mrs Winstone’s primary submission was that a determination of whether the total amount of wages paid to the claimants is less than the total amount of the wages properly payable to them (section 13(3) ERA) requires consideration of the 2007 TCS alone. She submitted that both the 2016 Guidance and the 2021 Guidance were guidance only, and did not form part of the documentation from which the claimants’ entitlement to wages arose.[62]The Tribunal did not agree with that submission. The Tribunal was satisfied that the 2021 Guidance, negotiated and agreed at a local level between the BMA (on behalf junior doctors) and the health boards including the respondent and which had been circulated to the Local Negotiating Committees (LNCs) for final agreement was intended by both parties to be the agreed process for the monitoring of rota banding. The BMA appeared to rely on this themselves in their email to the respondent on 26 October 2023 when they said they wished to exercise their “contractual right to a Banding Appeal”.[63]The Tribunal was also satisfied that the 2008 Banding Appeals Guidance was intended by the BMA and the health boards including the respondent to be the agreed process for banding appeals. Paragraph 3 of the document referred to a Banding Appeal as a formal process under TCS [2007] for use when there is a dispute between the junior doctors and their employer over the correct banding of a rota. It stated that an appeal should only be convened if informal discussions between the junior doctors, the employer and the Regional New Deal Support Team had not resolved the issue to the satisfaction of either the junior doctors or the employer. That was the case here. The issue had not been resolved to the satisfaction of the claimants. The Regional New Deal Support Team could not be involved as they no longer existed. Additionally, as before, the BMA appeared to rely on the contractual nature of the Bandings Appeal process in their email to the respondent on 26 October 2023.[64]Mrs Winstone’s alternative submission was that if the 2021 Guidance and the 2008 Banding Appeals Guidance did form part of the documentation which determined the amount of wages properly payable by the respondent, the respondent reached a decision which was irrational in deciding that the claimants’ banding appeal was not upheld.[65]Mrs Winstone submitted that there was an implied term in the claimants'’ contracts that the respondent would not act capriciously in exercising its discretion, as it did when deciding to reject the outcome of the monitoring exercise as unrepresentative and to reject the claimants’ appeal. She submitted that the outcome of the exercise and subsequent appeal was irrational or perverse (Clark v Nomura International plc [2000] IRLR 766).[66]The Tribunal had regard to the test of irrationality or perversity set out in Clark. The High Court held that in determining irrationality or perversity a test of reasonableness would be too low a test as it implies that a court can substitute its own view for that of an employer. In applying a test of perversity or irrationality, the Tribunal cannot substitute its own view of reasonableness and can only interfere if no reasonable employer could have come to such a conclusion.[67]The Tribunal was satisfied that there was no evidence which demonstrated that the Banding Appeal panel had reached a decision which no reasonable employer could have reached. Fiona Logan of the BMA presented the claimants’ case. Ms McNeil presented the case for the orthopedics and trauma management team. The Appeals Panel adjourned to discuss before reaching a decision that the monitoring period was not representative, for the reasons given by the management side. The Appeal Panel decided, having heard from both sides, that the management reasons showed that the monitoring period was unrepresentative. The Tribunal was satisfied that the decision making of the Appeal Panel could not be said to come anywhere close to being irrational or perverse.[68]With reference to the agreed list of issues the Tribunal is satisfied that the TCS 2007, the 2021 Guidance and the 2008 Banding Appeals Guidance form part of the contractual arrangements between the claimants and the respondent in determining the wages which are properly payable to them.[69]The Banding Appeal panel decision was the last stage of the respondent’s internal procedures to determine the wages properly payable to the claimants. The reference in the 2008 Banding Appeals Guidance to both sides abiding by the decision of the panel does not preclude the claimants from presenting a complaint in the Tribunal of unauthorised deductions from wages. Section 203 ERA provides that “any provision in an agreement (whether a contract of employment or not) is void in so far as it purports(a) to exclude or limit the operation of any provision in this Act or (b) to preclude a person from bring any proceedings under this Act before an employment tribunal”. There are some exceptions to this, none of which apply here.[70]In summary, the claimants having brought proceedings under section 13 ERA, the Tribunal is satisfied that with reference to the arrangements between the claimants and the respondent for band allocation of the NG51 rota worked by them, the wages properly payable to them were at Band 2B. The claimants have received all wages due to them at Band 2B.[71]Accordingly, the complaint of unauthorised deductions from wages is not wellfounded and is dismissed. Employment Judge McCluskey APPENDIXRelevant law
[1]What were the terms of the Claimant’s contracts relating to the Claimants’ rotas and banding in relation to supplemental hours worked? It is agreed that the Claimants were entitled to 30-minute breaks after four hours on duty. If they did not achieve that on 75% of occasions, they were entitled to a Band 3 uplift.[2]What was the Guidance in relation to New Deal Monitoring for Doctors in Training? It is agreed that the original Guidance for monitoring was “Monitoring Guidance for Doctors in Training NHS Circular PCS(DD) 2016/2 (JB p 249 – 254). It is further agreed that the methodology for monitoring was agreed between inter alios the Respondent and the BMA in terms of the Regional Junior Doctors Liaison Group Regional Monitoring Guidance, 27 August 2021 (pp 301 to 304).[3]Did the Respondent follow that Guidance? It is agreed that, insofar as the Respondent did not follow the Guidance (for example regarding re-monitoring and timescales), it has no bearing on the Claimants’ entitlement or otherwise to a Banding uplift.[4]Did the Claimants work supplemental hours? It is agreed that the result of the monitoring exercise carried out between 15 and 28 May 2023 was that the Claimants were getting a 30- minute break on 72% of occasions during that period.[5]What is the supplement relating to those hours? It is agreed that if the finding of the monitoring exercise was representative of rota NG51 the applicable supplement would be Band 3 as quantified in the Claimants’ Valuation of claim.[6]To what extent was the 2021 agreement between the Respondent and the BMA on behalf of inter alios Claimants binding on the parties?[7]The Claimants having taken a Banding Appeal in terms of the agreement and the Banding Appeal having decided against them, does that determine their contractual entitlement or otherwise to the uplift and/or is the banding appeal outcome against the claimants a waiver of their rights to bring a claim for unlawful deduction from wages or to seek such other redress as is open to them?