Member J McCullagh Tribunal Member A Shanahan Audrey Kershaw v , Advocate Instructed by Mr J Goldman, British Dental Association Tayside Health Board — 2022

The claimant, a dentist born in 1965, worked as a vaccinator for NHS Tayside from 4 February 2021. The Tribunal found that the employment relationship for this work was formed informally when she started, against the background of the Scottish Government memorandum of 30 November 2020, which stated that participating dental contractors would be paid a sessional fee of £230. The Tribunal accepted the claimant’s evidence that she understood she would be paid at that rate, and it found that the respondent had no communicated contrary term at the outset.

The respondent later sought to place the claimant on an emergency dental service arrangement and then a Band 5 vaccinator arrangement, but the Tribunal found that this did not reflect the contract that had already been made. It placed weight on the March 2021 addendum, which said there was no need for a pre-existing contractual relationship with Boards in order to be engaged on the basis of the agreed sessional rates. On that basis, the Tribunal held that the amount properly payable was £230 per session. The claimant worked 246.75 hours, was paid for 181 hours at the bank rate, and was not paid at all for 65.75 hours. The resulting unlawful deduction was £13,199.50, which the respondent was ordered to pay.

The indirect age discrimination claim failed. The claimant argued that the respondent operated a practice of requiring a VT number and NHS list number in order to obtain the higher pay rate, which she said disadvantaged dentists in her age group. The Tribunal concluded that the evidence did not show that any disadvantage arose because of age. It found that the claimant’s difficulty in obtaining a list number was because she was a specialist oral surgeon who had not carried out enough general dental work to demonstrate the competence required by the regulations, not because she was older. The Tribunal therefore dismissed the age discrimination claim. It recorded that, had the claim succeeded, it would have assessed injury to feelings at £1,000 at the lower end of the lowest Vento band, but no discrimination compensation was awarded because the claim failed.