Claimant v Maidstone & Tunbridge Wells NHS Trust — 2020

Dr Ibrahim worked for Maidstone and Tunbridge Wells NHS Trust as a Bank Doctor on a zero hours, paid-as-worked basis. He was suspended on 22 March 2019 following allegations relating to his personal conduct, remained suspended under successive letters, and was summarily dismissed on 27 August 2019. The issue for this paper hearing was whether the tribunal had jurisdiction over his unlawful deduction of wages claim and, in particular, whether the Trust's suspension arrangement meant he was entitled to be paid during suspension.

The tribunal considered section 13 and section 27A of the Employment Rights Act 1996, together with Coors Brewers Ltd v Adcock, Lucy and Ors v British Airways, and Obi v Rice Shack Ltd. It accepted the Trust's submission that the claimant was only entitled to pay when work was actually provided, but held that suspension was different from simply not offering work. During suspension the claimant had to remain contactable, available for meetings, and obtain permission before working elsewhere, so the suspension had practical effects beyond the absence of shifts.

The tribunal found that the Trust's disciplinary policy said suspension would normally be on full pay and that this applied equally to workers on zero hours contracts. It rejected the argument that, because the claimant had no guaranteed hours, full pay meant no pay at all during suspension. On the tribunal's reading, full pay meant pay reflecting what the claimant would have received had he been required to work, and the sums were capable of being calculated, for example by reference to the average over the 12 months before suspension.

The judgment therefore held that the claimant was entitled to receive full pay throughout the period of suspension. The tribunal did not determine the amount in this decision and directed that, if the parties could not agree the figure, they should apply for a remedies hearing.