Mr GJ Dring v The Newcastle upon Tyne Hospitals NHS Foundation Trust — 2020

Mr GJ Dring, a registered nurse employed by Newcastle upon Tyne Hospitals NHS Foundation Trust since 1998, remained on Whitley Council Scale E after he did not agree the Agenda for Change job description in 2007. The tribunal found that he continued on the Whitley Council contract for pay purposes until 6 September 2018, and rejected the argument that the use of Agenda for Change holiday calculations created a hybrid contract. After a career break he returned on 9 May 2018 on salary £22,725 and agreed the Band 5 job description on 6 June 2018.

Ms Mann applied section 46 of the Agenda for Change Handbook to assimilate him to Band 5. The tribunal held that section 46 remained the correct objective assimilation process, that the Trust did not have to seek advice from NHS England, and that Annex 2 did not supersede section 46. On the strict application of section 46, the claimant’s pre-assimilation salary should have taken him to the next equal or higher Band 5 point at £23,023, but Ms Mann exercised discretion to place him on step point 3 at £23,951 in light of his experience. The claimant resigned on 4 February 2019 before the grievance hearing, but the grievance nevertheless proceeded and Mr Dick confirmed the decision on 22 March 2019.

The tribunal rejected the claimant’s case that he was contractually entitled to Band 5 point 8 at £29,608, including the submission that the word “appointment” in Annex 2 meant appointment as a nurse. It held that the decisions taken were not irrational or perverse, applying the authorities cited on the exercise of discretion. Both the breach of contract claim and the alternative unlawful deduction from wages claim were dismissed.