Ms I Valcheva v Represented by: Mrs H Winstone - Counsel Mr A Naziri Mr B Johnston Mr H Tracey Mr L Cooper Ms A McIntosh Greater Glasgow Health Board — 2023

Ms I Valcheva and the other claimants were Foundation Year 1 or 2 junior doctors who worked the NG51 rota at Glasgow Royal Infirmary between about 5 April 2023 and 1 August 2023. The rota had been allocated Band 2B. A monitoring exercise between 15 and 28 May 2023 showed that 30-minute breaks were achieved on 72% of occasions, below the 75% threshold for Band 2B. The tribunal accepted that the claimants had not previously raised with the respondent that they were having difficulty taking 30-minute breaks on at least 75% of occasions, although it accepted there had been a stressful weekend outside the monitoring period in a short-staffed environment.

The tribunal found that the relevant contractual arrangements included the NHS Terms and Conditions of Service for Junior Doctors in Scotland, the 2021 Regional Junior Doctor Liaison Group Monitoring Guidance, and the 2008 Junior Doctor Banding Appeals Good Practice Guidance. It held that the 2021 Guidance was the agreed local process for monitoring, replacing reliance on the earlier national guidance at local level, and that the appeal panel process had been properly constituted under the 2008 Guidance. The claimants' banding appeal on 24 May 2024 was not upheld, and the panel decided that the monitoring exercise was not representative and that rota NG51 remained Band 2B.

The tribunal rejected the submission that the 2007 Terms and Conditions alone determined the wages properly payable. It held that the agreed monitoring and appeal guidance formed part of the contractual arrangements for determining banding. Applying the Clark v Nomura irrationality/perversity approach, the tribunal found no basis to say that the appeal panel reached a decision that no reasonable employer could have reached. It therefore held that the claimants had been paid all wages due at Band 2B and dismissed the unauthorised deductions from wages complaint.

The breach of contract complaint had been withdrawn and was dismissed. The tribunal also noted that there was no evidence about whether the claimants remained employed, which mattered to its jurisdiction point on breach of contract.