You might think that when your employer makes a decision about your pay, there would be some kind of record or reasoning written down about it.
It is, after all, one of the more important decisions an employer makes. But when a consultant thought – rightly – that he had been paid too little on appointment to a new post, it was impossible to discover exactly what was going through his employer’s mind at the time.
He had seven years’ experience as a consultant in the armed forces, but a few years after being appointed to an NHS post, realised that he had been initially placed too low on the pay scale.
His employer had treated him as if he had only three years’ consultant experience. He raised it verbally, and through emails, but without success. So, he called in the BMA.
The employment adviser first wrote to the chief executive, who confirmed the doctor’s pay was worked out on three years’ experience but did not say why. The chief executive said it was discretionary whether non-NHS prior experience was taken into account.
This is true, but would an employer really want to imply armed forces experience – much of which was spent working in NHS hospitals in any case – was less valid than if he had been directly employed by the NHS? Or was there another reason?
We don’t really know, because the employer kept no records as to why it made the decision. But there was a clue at the grievance hearing when the panel asked for details of the member’s armed forces experience, and found that some of it was spent in a NCAS (National Clinical Assessment Service) remediation programme.
The panel upheld the employer’s original decision because it said he was not working as a fully independent consultant for all of the previous seven years. The employer might have taken the original decision on the same grounds.
However, the BMA found this reasoning to be flawed because, had the doctor been employed directly by the NHS but gone through an NCAS programme, his years of service would still have counted for the purposes of seniority.
It made this point at the appeal, and also put forward the doctor’s strongly held view that he was being penalised for having served his country. This seemed to chime with the appeal panel, which also seemed to share the member’s frustration about the lack of documentation regarding the original pay decision.
It found in his favour. Given the process had taken two years of patient work, and that the consultant had by then been at the trust for nine years, it meant he was owed tens of thousands of pounds in back pay.
Plus, the panel said the process for how seniority and reckonable pay were calculated needed to be reviewed, with full documentation remaining in an individual’s personal file, and for the employment contract to be changed to make clear the years of seniority awarded at the outset.
The doctor said he was indebted to the BMA adviser, and that his success would not have been possible without her expert guidance.
On The Ground is a regular column in The Doctor that highlights practical help given to BMA members in difficulty