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EHS

Landmark pay-dispute legal ruling for surgeon

An important legal precedent concerning the contractual rights of clinical academics has been reached, following a legal case supported by the BMA. 

A judgment in the court of appeal has ruled that an employment dispute brought by an academic surgeon Meena Agarwal, can be dealt with by an employment tribunal, overturning previous rulings.

Miss Agarwal took her case to the court of appeal, after an employment tribunal and employment appeal tribunal in Cardiff ruled they could not settle a claim she had made against her employers for unlawful deduction of wages.

The court’s decision marks an important point of precedent with regards to individuals with more than one employer, such as clinical academics, and their contractual rights.

Miss Agarwal was employed by Cardiff University under a clinical academic contract as a senior lecturer, while she worked at the local NHS hospital, the Cardiff and Vale University Health Board, as a consultant surgeon under an ‘honorary appointment’.

Under this arrangement, Cardiff University was responsible for paying both Miss Agarwal’s academic and NHS elements of her salary.

In August 2013, Dr Agarwal began a period of sick leave, leaving her unable to return to work until October the following year, when she returned after being certified fit by her GP and an occupational health consultant.

She resumed her academic duties with Cardiff University, but the health board did not facilitate her return to clinical work.

While Miss Agarwal waited to return to her clinical duties, the university reduced her salary by half and subsequently went on to make her redundant as part of what it described as a ‘restructuring process’.

 

Wage claim

In relation to her salary reduction from October 2014, Miss Agarwal lodged a claim for unlawful deduction of wages against both the university and the health board, at an employment tribunal in May 2015.

However, both the tribunal and subsequent employment appeal tribunal concluded that they did not have the jurisdiction to deal with disputes brought under part two of the Employment Rights Act (which deals with deductions from wages), as Miss Agarwal’s case had been.

This position, however, has now been overturned by the court of appeal’s judgement, which stated that the tribunals’ claim that it had no jurisdiction to resolve Miss Agarwal’s claim was wrong.

This judgment allows Miss Agarwal to continue to fight this deduction of wages in an employment tribunal, which is much less expensive than a civil court. But it is also a major landmark in ensuring clinical academics with more than one employer have the same rights to redress in employment claims as other doctors.

Miss Agarwal was supported throughout the process by BMA Cymru Wales assistant secretary Rhys Owen.

Miss Agarwal’s redundancy from the university and how it was conducted is currently the subject of a separate appeal.

BMA medical academics committee co-chair Michael Rees applied to have Miss Agarwal’s case taken up by the association’s legal department’s cases committee.

Professor Rees, who himself holds a clinical academic post in cardiovascular studies at Bangor University, said that the judgment of the court had set an important precedent regarding the contractual rights of academic staff employed on honorary contracts.

He said: ‘This is a great step forward, it is the first really important test case involving clinical academics that we [the BMA] have supported, and I am very grateful to the BMA legal department for taking this case up.

‘It is incredibly important for the future of academic medicine, that we send a message to doctors in academic roles that says “your contract is important”, and that we [the BMA] will go as far as we can politically and legally, to support the status of academic medicine.’

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