Grainger v North East London NHS Foundation Trust, Court of Appeal - Queen's Bench Division, September 08, 2017, [2017] EWHC 2254 (QB)

Issuing Organization:Queen's Bench Division
Actores:Grainger v North East London NHS Foundation Trust
Resolution Date:September 08, 2017

Case No: HQ15X05234

Neutral Citation Number: [2017] EWHC 2254 (QB)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/09/2017

Before :

Mr Justice Lavender

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Between :

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Thomas Cordrey (instructed by Kingsley Napley) for the Claimant

Andrew Allen (instructed by DAC Beachcroft LLP) for the Defendant

Hearing dates: 4, 5, 6 and 10 July 2017

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JUDGMENTMr Justice Lavender:

(1) Introduction

  1. The Claimant is a consultant child psychotherapist. She has worked for the Defendant since 2008, having worked for the Defendant's predecessors since 1980. The Defendant provides, inter alia, community health and mental health services in the London Boroughs of Barking & Dagenham, Havering, Redbridge and Waltham Forest and in parts of Essex. In 2005 the Claimant's job was assessed as falling within band 8C under the NHS pay scheme.

  2. The Claimant alleges that:

    (1) her job changed when she was given an additional role in January 2007;

    (2) thereafter the Defendant was under a contractual duty to carry out a formal job evaluation;

    (3) the Defendant was in breach of contract in failing to carry out such an evaluation;

    (4) such an evaluation would have resulted, or would have had a chance of resulting, in a decision that her job fell within band 8D, and consequently an increase in her pay, back-dated to January 2007.

  3. By this action, which was commenced on 17 December 2015, the Claimant seeks to recover the amounts which she says that she should have been paid. This has been a trial of the issue of liability only, as ordered by Master McCloud on 21 December 2016.

    (2) Issues

  4. The issues between the parties concerned, in particular:

    (1) whether certain provisions (i.e. paragraphs 1.4, 3.2 and 3.3 of Chapter 3 of the Job Evaluation Handbook and the ``Grading Review Procedure'' or ``Banding Review'' section in the Defendant's HR Handbook for Managers) had contractual effect;

    (2) what was the extent of the additional role given to the Claimant;

    (3) whether that additional role was such as to oblige the Defendant to carry out a job evaluation; and

    (4) whether the Claimant has waived and/or is estopped from asserting any of her contractual rights.

  5. The Claimant also invited me to decide what the chances were of a job evaluation resulting in the job being placed in band 8D and, if so, whether the re-banding would have been backdated to 2007 and whether she would have benefited from ``pay protection'' so as to continue after March 2014 to be paid as if her job were in band 8D. I declined to do so. This was a trial of liability only. Moreover, the Claimant has not as yet pleaded a claim for damages for loss of a chance.

    (3) Witnesses

  6. The Claimant gave evidence, but did not call any other witnesses. The Defendant called 6 witnesses, as follows:

    (1) Dr Trudie Rossouw. She worked for the Defendant for about 20 years until January 2017. She was a Consultant Child Psychiatrist. Until 2005 she was the Lead Clinician for Redbridge. In 2005 she became the Clinical Director for the Defendant's Child and Adolescent Mental Health Services (``CAMHS''), which was part of the Specialist Services Directorate.

    (2) Susan Boon. She has worked for the Defendant since November 2005. She was the Operational Director for Specialist Services until September 2010. As such, she was the manager responsible for CAMHS.

    (3) Robert Edwards. He has worked for the Defendant since 2006. He took over from Susan Boon in September 2010 as Operational Director for Specialist Services.

    (4) Dr Benjamin Smith. He is a Consultant Clinical Psychologist. He worked for the Defendant from September 2010 to September 2015, initially as Professional Head of Pyschological Services and, from January 2013, as Clinical Director for the Allied Health Professional and Psychological Services. He was the Claimant's professional lead. (The Claimant's operational line manager was a Service Manager in Barking and Dagenham, i.e. Siobhan Quinn to February 2007, Clive Blackwood to August 2009 and Merrisha Briscoe thereafter. They did not give evidence).

    (5) Caroline Ward. She has worked for the Defendant since December 2010 as Assistant Director of Children's Services for Barking and Dagenham. Her only relevant involvement with the Claimant was in 2014, when she was asked as an independent person to conduct the review to which I will refer.

    (6) Caroline O'Donnell. She has worked for the Defendant since 2009. Her only relevant involvement with the Defendant was in 2014-15, when she chaired the grievance appeal panel to which I will refer.

  7. All of the witnesses had to deal with the fact that they were giving evidence about matters which occurred as much as 12 years ago. Inevitably, their recollections were imperfect and, in some cases, inaccurate. For example, the Claimant recalled that in 2005 she was paid at the top of band 8C, whereas the letter which she managed to find during the trial revealed that she had been paid at the level below the top. Some of the Defendant's witnesses gave rather surprising evidence as to what they meant when they wrote emails or letters in, say, 2007 or 2011. I have focused on what they actually wrote, rather than what they now say that they meant.

  8. It will be necessary to refer to two disciplinary matters involving the Claimant. It is important to stress, however, that under the NHS pay scheme disciplinary findings (and, a fortiori, investigations) do not affect the banding of a job. That is determined solely by the nature of the job, not by the disciplinary record of the person doing the job. It is also right to record that, while criticisms were made of the Claimant's time management and record-keeping, Dr Rossouw accepted without hesitation that the Claimant was extremely dedicated and very committed to her discipline.

    (4) Agenda for Change

  9. ``Agenda for Change'' is the name given to the NHS pay system which was introduced with effect from 1 October 2004, following negotiations with representatives of NHS employees. The NHS pay system was intended to provide a common pay system for all relevant NHS employees, regardless of the identity of their employer. Details of the NHS pay system are set out in the ``NHS terms and conditions of service handbook'', as amended from time to time (``the Terms and Conditions Handbook''), which is published by the NHS Staff Council. The NHS Staff Council contains representatives of employers and unions.

  10. By 2007, the NHS pay system consisted of three ``spines''. The relevant spine for the purposes of this case is the second spine, which applies to staff such as the Claimant who fall within the remit of the NHS Pay Review Body. That spine consists of nine pay bands, numbered from 1 to 9 (with band 9 being the highest paid). Band 8 is subdivided into four ``ranges'', referred to as bands 8A to 8D (with band 8D being the highest paid).

  11. Each band contains a number of ``pay points''. There are 56 pay points, numbered from 1 to 56 (with 56 being the highest paid). The bands overlap, so that, for example, as at 1 April 2007 (according to Annex B to Version 2 of the Terms and Conditions Handbook, and excluding certain transitional provisions):

    (1) Band 8B included 6 pay points, from 39 to 44.

    (2) Band 8C included 6 pay points, from 43 to 48.

    (3) Band 8D included 6 pay points, from 47 to 52.

    (4) Band 9 included 6 pay points, from 51 to 56.

  12. Each pay point represents a level of annual salary, which is subject to regular increases. For example, as at 1 April 2007:

    (1) Pay points 43 and 44 were the highest pay points in band 8B and the lowest pay points in band 8C and represented annual salaries of £50,122 and £51,494 respectively.

    (2) Pay points 47 and 48 were the highest pay points in band 8C and the lowest pay points in band 8D and represented annual salaries of £60,077 and £61,793 respectively.

    (3) Pay points 51 and 52 were the highest pay points in band 8D and the lowest pay points in band 9 and represented annual salaries of £70,947 and £74,381 respectively.

  13. The stated purposed of the pay points was (according to paragraph 1.8 of the Terms and Conditions Handbook):

    ``to allow pay progression in post. Staff will progress from point to point on an annual basis to the top point in their pay band or pay range, provided their performance is satisfactory and they demonstrate the agreed knowledge and skills appropriate to that part of the pay band or range.''

  14. The introduction and maintenance of a common NHS pay system required a process for allocating jobs to the appropriate bands. The NHS Staff Council published various editions of the ``NHS job evaluation handbook'' (``the Job Evaluation Handbook''). This set out details of the NHS job evaluation scheme. That scheme consisted of allocating weighting scores to jobs and thereby identifying the appropriate band for the job. For example (as set out in Table 1 in paragraph 1.6 of Version 2 of the Terms and Conditions Handbook):

    (1) Band 8B was the appropriate band for jobs with scores from 585 to 629.

    (2) Band 8C was the appropriate band for jobs with scores from 630 to 674.

    (3) Band 8D was the appropriate band for jobs with scores from 675 to 720.

  15. The Job Evaluation Handbook gave details of how jobs were to be scored. There were two processes for doing this (with the possibility of a hybrid of the two):

    (1) Job matching (described in Chapter 8 of the Second Edition and in Chapter 11 of the Third Edition of the Job Evaluation Handbook) involved comparing a job to certain national evaluation profiles. It was anticipated that most jobs would be dealt with in this way.

    (2) Local evaluation (so called because it was carried out locally, and described in Chapter 10 of the Second Edition and in Chapter 13 of the Third Edition of the Job Evaluation Handbook) involved eight ``Nationally agreed steps for local evaluation.'' This was a more time-consuming...

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