United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	EDWARD KEMP (of Counsel) Instructed by: Darbys Solicitors LLP 52 New Inn Hall Street Oxford OX1 2DN
For the Respondent	MANUS EGAN (of Counsel) Instructed by: Rice-Jones & Smith Solicitors 7 Ely Place London EC1N 6RY


 


SUMMARY

CONTRACT OF EMPLOYMENT – Construction of term

UNLAWFUL DEDUCTION FROM WAGES

On the true construction of the pay protection provisions in the Terms and Conditions for Hospital Doctors a part-time Hospital Practitioner who took a training post in a lower grade was entitled to be paid in that post at the full-time equivalent of her pay in her previous post.


 


THE HONOURABLE MR. JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. The Appellant is a doctor, specialising in oral and maxillo-facial surgery. She originally trained as a dentist in India but subsequently qualified as a doctor and has been working in the United Kingdom since 1996. She worked in training grade posts from March 1998 until August 2002. From September 2002 to September 2006 she held a series of locum positions in career (i.e. not training) grade posts, two of them at Specialist Registrar level. In November 2006 she took a six-month appointment with the Luton and Dunstable Hospital NHS Foundation Trust, though in the event she left early in 2007. She was then offered a post as a "Foundation Year 1 Pre-Registration House Officer" (a "FY1PRHO") with the Respondent ("the Trust"). This is a training post, typically for newly-qualified doctors, and paid accordingly. It is, however, not uncommon for more senior doctors to take such a post when they require further training for one reason or another (we were told that in the Appellant's case it was a necessary step to her qualifying for an appointment as a consultant because she had originally trained as a dentist); and the standard NHS terms and conditions covering remuneration provide for "pay protection" in such circumstances. When she started work at the Trust the Appellant believed that she was entitled to such pay protection; but her claim was not recognised, and she was paid only the basic salary of a FY1PRHO, at the bottom of the applicable incremental scale, being £21,052 p.a.
2. In those circumstances the Appellant in August 2008 commenced the present proceedings, both as a complaint of an unlawful deduction from her wages contrary to Part II of the Employment Rights Act 1996 and as a claim for equal pay. It was her case, as eventually formulated in the Schedule of Loss presented to the Tribunal, that she was entitled to basic pay at a rate of £65,931.42: we will explain below how that figure is arrived at. She claimed in respect of the year August 2007–July 2008 the difference between that amount and the £21,052 actually paid. In addition she claimed (a) increased "banding supplements" (see para. 7 below), which are calculated as a proportion of basic pay and so on her case should have been higher than they in fact were; (b) a week's holiday pay (this claim was subsequently withdrawn); (c) interest; and (d) a 50% uplift under section 31 of the Employment Act 2002. Her total claim was some £108,000.
3. The case was heard by an Employment Tribunal chaired by Employment Judge Goodrich at the East London Hearing Centre in December 2009. The Judgment and written Reasons were sent to the parties on 11^th January 2010. As regards the unlawful deduction claim:

(a) The Trust had conceded in the course of the hearing that, irrespective of the question of pay protection, the Appellant was being paid at the wrong point on the incremental scale for a PRHO of her experience and that she was entitled to a further £2,975.55; and the Tribunal so declared.

(b) The Tribunal upheld her claim to pay protection, but only to the extent of a basic salary of £28,845 p.a.

The total sum so awarded was uplifted by 30% under the 2002 Act. The equal pay claim was upheld only to the extent that it corresponded to the pay protection claim. No explicit award was made in relation to the claim for enhanced payments by way of banding supplements.

4. The Appellant appeals against the Tribunal's refusal to uphold her pay protection claim in full. There is also an issue as regards the Tribunal's failure to address the issue of banding supplements. She is represented before us by Mr. Edward Kemp of counsel, who also appeared before the Tribunal; the Trust is represented by Mr. Manus Egan of counsel, who did not appear below.

THE PAY PROTECTION ISSUE

5. We start by setting out the relevant contractual terms. They are contained in the NHS Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales) ("the terms and conditions"), which came into force in September 2002. The terms and conditions are promulgated by the Secretary of State but represent the outcome of negotiations between him and representatives of the medical and dental professions. Revised terms, which included revised pay protection arrangements, came into force on 1^st August 2007: they do not apply to the Appellant's contract because that took effect from 31^st July (although that fact was overlooked until a late stage in the dispute). We have been shown the revised pay protection arrangements, and although we need express no definitive view it seems to us that the issues which arise in these proceedings would still arise under the new arrangements.
6. Para. 1 (a) of the terms and conditions provides that "practitioners shall be paid at the rates set out in Appendix I". Appendix I does not in fact itself contain any substantive provisions but refers to "the latest advance letter" – also referred to as the "Pay Circular". A fresh Pay Circular is issued each year. Annex A to the Circular sets out the basic rates of pay per annum for hospital doctors, effective from 1^st April, in the form of a schedule setting out figures for each grade: each grade has a number of incremental points, though the number of points varies from grade to grade. The grades are: Consultant (pre-2003 contract); Associate Specialist; Staff Grade Practitioner (two grades); SCMO; CMO; Senior Registrar; Registrar; Specialist Registrar; Senior House Officer; House Officer; PRHO; Foundation House Officer (two grades); and Hospital Practitioner. For all grades other than Hospital Practitioner the figures given are annual figures for full-time work.
7. The pay prescribed by Annex A to the Pay Circular is basic pay only. Hospital doctors may also be entitled to "supplements", primarily for out-of-hours work. Under current arrangements these supplements are described as "banding supplements". They are, as noted above, calculated as a percentage of basic pay.
8. The relevant pay protection arrangements are contained in para. 132 of the terms and conditions, which reads as follows:

Where a practitioner takes an appointment in a lower grade which is recognised by the appropriate authority as being for the purpose of obtaining training (which may include training to enable the practitioner to follow a career in another speciality), the practitioner shall, while in the lower grade, continue to be paid on the incremental point the practitioner had reached in his or her previous appointment. Such a practitioner shall receive benefit of any general pay awards. On reappointment to the higher grade or on appointment to another higher grade, the practitioner's starting salary should be assessed as if the period spent in the approved training post had been continuing service in the previous higher grade. Practitioners whose previous appointment was in the Northern Ireland, Isle of Man or Channel Islands hospital service are eligible for protection of salary under the terms of this paragraph.

9. There is no dispute that the Appellant's position with the Trust was "an appointment … recognised … as being for the purpose of obtaining approved training" within the meaning of para. 132. It is also (now) common ground that her post with the Luton and Dunstable Trust constituted her "previous appointment". It is necessary to say something more about that appointment. It was described in the appointment letter as being "as a Trust grade doctor in oral surgery (Hospital Practitioner equivalent) for two sessions per week". That description needs unpacking. "Hospital Practitioner" is a grade recognised in the NHS covering registered GPs of at least four years' seniority who work part-time in a hospital. Their obligations are expressed in terms of "sessions" or "notional half-days", which are treated as equivalent to 3½ hours: a full week notionally consists of eleven sessions. Various provisions about Hospital Practitioner appointments appear at para. 6 of the terms and conditions. Sub-para. (d) provides that "posts shall be limited to a maximum of five notional half-days each week": it is thus inherent in the nature of a Hospital Practitioner post that it cannot be full-time. It is, to anticipate, that provision which is at the heart of this appeal, since it is the Trust's case, which the Tribunal accepted, that the Appellant's right to pay protection cannot exceed the equivalent of five sessions per week.
10. The post to which the Appellant was appointed at the Luton and Dunstable hospital was a Hospital Practitioner grade post, but she was not strictly speaking eligible for it because she was not a registered GP. That is why it was described as "Trust grade (Hospital Practitioner equivalent)". As the Tribunal put it at para. 82 of the Reasons, "the Claimant was appointed on a trust grade post on hospital practitioner terms and conditions". No point was, however, taken before us that, since the appointment was "Trust grade" and thus did not strictly correspond to any grade covered by the 2002 terms, it could not be relied on for the purpose of para. 132.
11. As appears from the appointment letter, the Appellant's contract with the Luton and Dunstable Trust was not in fact for the permitted maximum of five sessions per week but only for two. The Trust initially took the point that the appointment did not fall within para. 132 because it was a locum appointment; but that contention was abandoned in the course of the hearing before the Employment Tribunal. It was accepted that it was for the purpose of para. 132 an appointment in a higher grade than the Appellant's appointment with the Trust.
12. Consistently with the way in which the work obligation is defined, remuneration for Hospital Practitioners is expressed in Annex A in terms of pay per session – or, more accurately, pay per session per year. As noted above, it is in that respect different from all other grades referred to in Annex A. Thus the Appellant's pay from the Luton and Dunstable Trust was expressed as £5,683 per session (being the rate payable for the sixth incremental point), equating to £11,366 p.a. since she worked two sessions.
13. It follows from the foregoing that the effect of para. 132 is that the Appellant was entitled to "continue to be paid on the incremental point [that she] had reached" in her Luton and Dunstable post. It is common ground that that does not mean simply that the practitioner is entitled to be paid at the same point on the incremental scale for the training post as he or she had reached on the scale applicable to his or her previous appointment (e.g. that a Consultant at point 3 on the Consultant's scale should be paid at point 3 on the PRHO scale). Rather, although the drafting is compressed, it means that the practitioner shall receive the pay which he or she would have received if they were continuing to hold their previous appointment and were at the incremental point which they had reached in that appointment.
14. However, even as thus clarified para. 132 cannot be straightforwardly applied in the Appellant's case. There are three problems:

(a) As noted above, and uniquely, in the case of the Hospital Practitioner grade remuneration is expressed, in Annex A and generally, in terms of the annual figure payable for a single session – thus in the Appellant's case as £5,683. That figure cannot be directly transposed as a statement of her pay entitlement as a PRHO since neither the obligations nor the pay of a PRHO are expressed in terms of sessions: their obligation is, subject to certain immaterial qualifications, to work a 40-hour week (see para. 18 (a) of the terms and conditions), and remuneration is expressed in terms of annual salary.

(b) Her work in her previous appointment was part-time, i.e. two sessions per week out of a possible eleven, while as a FY1PRHO she was working full-time.

(c) She could not, even if she had chosen, have worked more than five sessions per week.

15. The broad question is how para. 132 applies having regard to those features. We take them in turn. Before we do so, however, we wish to observe that our task, and the Tribunal's, in construing the terms and conditions has been made more difficult than it should have been by the failure of either party – but more particularly the Trust, which was better placed for the purpose – to adduce any general or background evidence about the structure of jobs and remuneration in the NHS. The drafting of the terms and conditions assumes, not unnaturally, a general background knowledge of how the NHS works of which we will inevitably have only a very partial understanding. Evidence of such background would plainly have been admissible: see Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 WLR 896. This omission is particularly surprising given that the issue is one which may have implications for other cases; and even the amount at stake in the present case is not inconsiderable. The Tribunal rightly complained about this (see para. 79 of the Reasons), and we are in the same boat. While there would of course have been problems about our hearing disputed fresh evidence on appeal, we would have expected there to be a fair amount of uncontentious background information which could have assisted us in our task. Counsel was able to supply us with some snippets on instructions, but we remain less than confident that we are in a position to read the terms and conditions as their negotiators would have understood them. However, we must do our best by reference to the words which they chose to use.

(a) Converting Sessional Figures into Annual Figures

16. It is not contended by the Trust that the mismatch between the way that remuneration is expressed for Hospital Practitioners and for other grades means that pay protection in accordance with para. 132 is not available to Hospital Practitioners. It is common ground that the sessional rates in Annex A need to be converted into an appropriate salary figure. At first sight it might seem that all that is necessary is to multiply the single sessional figure by eleven (or a lesser multiplier if regard is had to the fact that the Claimant worked part-time: see (b) below). But the Appellant points out that since a session is equivalent to 3½ hours that would produce a figure appropriate for a 38½-hour week, whereas PHROs in fact work 40 hours. Her case is accordingly that the sessional figure has to be reduced to an hourly rate and then multiplied to produce an annual salary entitlement appropriate to a 40-hour week. It is that exercise which – applying the 2007 sessional rate for incremental point 6, being £5,769 – produces the figure of £65,931 identified at para. 2 above. Subject to its other points considered below, the Trust does not challenge that method of calculation.

(b) Part-Time Working

17. The Trust does not suggest that practitioners in a full-time training post who have previously worked part-time in a higher post are not entitled to any pay protection under para. 132. The question is what degree of protection. In principle there would seem to be two possibilities – (i) that they should enjoy pay protection only in respect of the number of hours that they worked in the previous appointment (so that – for example – a Consultant who had previously worked half-time would be paid as a Consultant for half of his or her training-post work as, say, a Registrar, but as a Registrar for the balance); or (ii) that he or she would be paid as a Consultant for the full time worked as a Registrar. The difference could be expressed as being between (i) protecting the amount received in the previous post and (ii) protecting the rate.
18. It seems that the Trust's primary position was originally that, assuming pay protection applied at all, only the amount should be protected – i.e. option (i). Thus it contended that the Appellant should only be protected as regards the equivalent of two sessions per week. That contention, however, was not pursued before us – nor indeed, so far as we can see, before the Tribunal. The case before us, reflecting the decision of the Tribunal, was that the Appellant was entitled, but entitled only, to protected pay for the equivalent of five sessions. That necessarily involves, though we are not sure that this was fully appreciated, at least a limited acceptance that what is protected is the rate of pay. The Trust's case is, in truth, that the Appellant is entitled to be paid at the rate derived from the two sessions which she in fact worked but subject to a cap on account of the maximum prescribed by para. 6 (d).
19. Notwithstanding that implicit concession, we think that it will be helpful to spell out the contractual basis of the entitlement to protection of part-time rates. Para. 132 itself is silent on the question, but Mr. Kemp relied on para. 135 of the terms and conditions, which is the interpretation provision covering paras. 121-134. It reads:

For the purposes of paragraphs 121 to 134:

(a) the rate of salary for a part-time practitioner shall be taken to be the corresponding point in the salary scale, except for a practitioner employed as a part-time medical or dental officer under paragraphs 94 or 105, for whom it shall be the maximum amount appropriate to nine notional half-days.

(b) service in a part-time or honorary appointment shall count in exactly the same way as service in a whole-time appointment;

(c) the rate of salary in the previous post shall be taken to be the present rate of remuneration for such a post, whether or not this rate was in fact paid:

(d) the rate of salary in the previous post of a practitioner shall be inclusive of any allowance paid for acting as Medical Superintendent and of the allowance to SHMOs or SHDOs occupying posts graded as consultants. It shall exclude London Weighting, extra duty allowance, or other fees payable by the health authority or allowances of junior doctors in peripheral hospitals;

Hospital Medical and Dental Staff

(e) for hospital medical and dental staff, the rate of salary paid in the previous appointments shall also not include any payments for an additional notional half-day under paragraph 14, additional sessions under paragraph 16 or for a salary supplement, as appropriate, for which the practitioner was contracted in that appointment. The practitioner will, however, be entitled to payment for an additional notional half-day under paragraph 14, additional sessions under paragraph 16, or for a salary supplement, as appropriate, which are contracted for in the new appointment, and these shall be paid at the appropriate proportion of the salary determined under these provisions.

20. Mr. Kemp relied primarily on sub-para. (a), which he said confirmed that practitioners working full-time in training posts but who previously worked part-time are entitled to pay protection for their full hours at their previous part-time rates. Sub-para. (a) is hardly a model of clear drafting, but we can trace a route through it as follows:

(1) At first sight sub-para. (a) might appear to have nothing to do with the present case. It does not, unlike sub-paras. (c) and (d), say that it is concerned with the practitioner's rate of salary in his previous post. However, on more careful consideration that impression appears to be wrong.

(2) The starting-point is that the evident purpose of the provision is to arrive at a "rate of salary" for a part-time practitioner. The obvious reason, in the abstract, why that might be necessary is in order to ascertain the current rate of pay for a doctor working part-time, given that only full-time figures appear in the scales. But we accept Mr. Kemp's submission that that cannot be what sub-para. (a) is aimed at, since the provisions about ordinary pay are in a quite different part of the terms and conditions and do not fall within the specific paragraphs, 122-134, for which para. 135 provides interpretative guidance.

(3) That being so, sub-para. (a) can only be directed at a situation where a practitioner has previously worked part-time and it is necessary for the purpose of one or more of paras. 122-134 to ascertain his "rate of pay". It seems to us that that situation could only arise in connection with paras. 132 and 133 (which is concerned with the case where a practitioner is promoted into a new grade for which the starting salary would be less than they were receiving in their previous grade): we have looked at paras. 122-131 and 134 but they are concerned with questions in relation to which this situation is immaterial. What both paras. 132 and 133 have in common is that they require a comparison between the rate of pay in the practitioner's current and previous posts. In our view, therefore, the only situation at which sub-para. (a) can be directed, notwithstanding the failure to use the same formula as sub-paras. (c) and (d), is that in which a practitioner working full-time in his current post wishes to rely on his pay in a previous part-time post for the purpose of paras. 132 or 133. In short, it applies to the current case.

(4) What then is its effect? It is, as we have said, loosely drafted; but it seems to us that "the corresponding point in the salary scale" can only mean the full-time rate shown on the scale for that post. The use of the term "corresponding" to mean, in effect, "equivalent full-time" is odd but not impossible; and, as we say, we can see no other meaning.

(5) That construction is in our view supported by the words of exception. Paras. 94 and 105, which are the subject of the exception, provide for the pay applicable to certain "appointments held only by part-time practitioners" – e.g. in convalescent homes or GP maternity hospitals. We were not shown the detailed provisions covering their terms, but it is clear from para. 94 that the unit of payment is the "notional half-day". The thinking behind the maximum of nine half-days was not explained to us; but its importance for present purposes is that the necessary implication is that the "corresponding point" would otherwise be ten (or eleven) half-days, i.e. the equivalent full-time figure.

21. The upshot of all this discussion is that in our view sub-para. (a) does provide that in a case of the kind under consideration it is the practitioner's previous rate of pay, and not simply the actual amount, which is protected. Mr. Kemp also sought to rely on the references to "rate of salary" in the other sub-paras. of para. 135, but in our view they add nothing.

21. We should say that we see nothing surprising in the position as so established. The broad purpose of pay protection provisions of the kind with which we are here concerned is evidently to ensure that practitioners do not lose out financially by stepping down a grade in order to re-train. We can see an argument that that purpose would be sufficiently met if the protection were to extend only to the number of hours worked in the previous appointment. But we do not think that it would be inconsistent with the purpose of pay protection for a more generous approach to be taken, whereby a practitioner who has previously worked part-time is entitled to the full-time equivalent of the actual pay received in the previous post. The rate reflects not only the actual value of the work done but also the seniority and experience of the person doing it, and those factors are present and apply to the entirety of the hours worked. We have no difficulty in seeing that it would "feel fair" to all concerned that, say, a former Consultant filling a Registrar post, so as to re-train in a way which will benefit the NHS as much as herself, should be paid as a Consultant for the entirety of the hours worked; and indeed that it might feel positively unfair and anomalous for her to receive different rates for different hours within a single job. There is a further factor, in as much as she may have given up other remunerative work – and in any event the opportunity of doing such work – in the hours that she was not working under the part-time contract, which it is not unreasonable to value at the same rate that she was receiving for her (part-time) NHS work; and although these "foregone hours" are not compensated as such under para. 135 there is an equity in recognising their value by paying the protected rate for the entirety of the hours worked. We can see how in those circumstances a form of pay protection which extended only to part of the hours worked might be a real disincentive to a part-time hospital doctor being prepared to step down in order to re-train, with a consequent disbenefit to the NHS.

23. In our view, therefore, on the true construction of para. 132 of the terms and conditions, read with para. 135, a part-time practitioner who moves to a full-time training post in a lower grade is entitled to protected pay at the full-time equivalent of his or her previous pay.

(c) The Five-Session Maximum

22. The Tribunal accepted the Trust's fallback argument that even if the Appellant was entitled in principle to pay protection in respect of more than the two sessions that she actually worked she was not entitled to it in respect of more than five sessions. The reasoning shortly stated at paras. 86-87 of the Reasons is simply that since, by reason of para. 6 (d), she could never have worked more than five sessions, she should not receive pay protection in relation to a longer period; and that was the basic point which Mr. Egan urged on us.
23. We do not accept that contention. If the general approach of the pay protection provisions is, as we have held, that a practitioner should receive in her training post protection at the rate that she received in her previous appointment, irrespective of the actual hours worked, it seems to us immaterial that the reason why she did not work full-time in the previous post is that the terms and conditions did not permit it. It could equally be said that a part-time Consultant moving to a training post "could not" have earned the protected amounts in her previous post: her contract was only for part-time working, and it may be that that was all that was available. In either case, however, the rationale for paying a protected rate in respect of all the hours worked, as explored at para. 22 above, applies irrespective of the reason for the previous part-time working.
24. Mr. Egan sought to base an argument on the words of exception in para. 135 (a) which we discuss at para. 20 (5) above. He pointed out that the defining characteristic of "para. 94/105 practitioners" was that they only work part-time. That showed, he said, that the intention of the terms and conditions was plainly that employees who can only work part-time should not receive pay protection in respect of more hours than they actually worked. It followed, he submitted, that that should be the case for Hospital Practitioners also, and he contended that the only reason why they were not referred to in para. 135 (a) was that the necessary limitation was already present in para. 6 (d). With respect, that argument does not work. Para. 6 (d) and the words of exception in para. 135 (a) do not do the same thing. Para. 6 (d) places a maximum limit on the sessions that may be worked by a Hospital Practitioner, but it says nothing about pay protection. In truth the boot is on the other foot. The only legitimate conclusion from the fact that Hospital Practitioners are not included in the classes covered by the words of exception is that the general rule is intended to apply to them. If this is an anomaly or not what the negotiators intended (as to which we are in no position to form a judgment), so be it; we can only interpret the terms and conditions as drafted.

CONCLUSION

25. We accordingly allow the appeal and declare that the Appellant was entitled to pay protection in respect of her basic pay for the period covered by the claim in the sum of £65,931.
26. This conclusion may at first sight seem surprising – first, because the Appellant becomes entitled to this level of pay protection as a result of having worked only two sessions a week in her previous role; and secondly because the level of pay is almost three times that received by an ordinary FY1PRHO. As to the former point, however, if the principle that pay protection protects rates is correct, as we believe it is, there is no principled basis for drawing any distinction between cases where the practitioner's previous part-time work was 80% of full-time and cases where it was only 20%. As to the latter, of course it is in the nature of protected pay that the beneficiary may receive far more than the normal rate for the job. The Appellant was not a young doctor straight out of medical school but an experienced maxillo-facial surgeon. It seems that Hospital Practitioners are well-paid – if annualised, their rates are higher than those paid to any grade save Consultant - and the Appellant was at the top of the incremental scales. We enquired whether there was any special reason for the level of pay enjoyed by Hospital Practitioners which might reflect back on the issue of protected pay, but counsel were able to give no authoritative answers. It has however to be borne in mind that Hospital Practitioners may be GPs of great experience who may well be earning for the part of their work that they do in general practice amounts which compare favourably with what they receive from their hospital post: it may indeed be that that is generally the case, but this was not a point on which we could get any information. (On any view the Appellant's own background is unusual for a Hospital Practitioner: see para. 9 above.) One point that did emerge was that it seems that Hospital Practitioners do not qualify for banding supplements (see para. 7 above), since they will not be required to work out-of-hours; but although that means that in terms of overall earnings Hospital Practitioners may feature rather lower on the scale than appears from a comparison of basic pay alone, we cannot see that that has any bearing on the issue which we have to decide.
27. In the end, our task must be to construe the terms and conditions as they are. If our construction does not correspond to the Secretary of State's intentions he will have to make the necessary changes - or, it may be, to seek to have the point argued in another case on the basis of evidence or submissions which were not advanced in the present case.

THE BANDING SUPPLEMENT ISSUE

28. During the year to which her claim relates the Appellant did work which entitled her to banding supplements. As noted above, supplements are not fixed sums but are calculated as a proportion of basic pay. The Appellant's Schedule of Loss includes a claim for a re-calculation of the supplements paid by reference to the protected pay which she was claiming. No specific provision in the terms and conditions is referred to. Mr. Kemp however submitted before us that the position is expressly covered by the second sentence of para. 135 (e) (see para. 19 above), which provides that "salary supplement … shall be paid at the appropriate proportion of the salary determined under these provisions". Unaccountably, in the version of the terms and conditions put before the Employment Tribunal most of para. 135 (e) was cut off; and Mr. Kemp made no reference to it below. Although we now have the complete text Mr. Egan contended that its introduction was impermissible since Mr. Kemp was seeking to adduce fresh evidence.
29. The Tribunal did not address this aspect of the Appellant's claim. Mr. Egan submitted that that was because it was not advanced below, but we do not think that that is sustainable: even though para. 135 (e) was not referred to, the claim itself is expressly made in the Schedule of Loss. Maybe it was overlooked, but it is also possible that the Tribunal regarded it as a consequential matter which could be resolved (if not agreed) at the "remedy hearing" which it directed. (Such a hearing was necessary because there was a dispute as to how much pay the Appellant had in fact received. A purist might question whether that was strictly a "remedy" issue; but the division between a hearing which determined points of principle and one which resolved consequential disputes or issues of detail was perfectly sensible.)
30. Whatever the reason why it was not dealt with, it seems to us plain that the claim is one which the Tribunal must now determine, on the basis of the protected pay as we have held it to be: we do not feel in a position to decide the issue ourselves. There is no difficulty about it doing so in the context of the remedy hearing. For the avoidance of doubt we will formally remit the issue to the Tribunal. When the issue is considered there can be no objection to the Appellant seeking to rely on para. 135 (e) of the terms and conditions.