T and A Banerjee v Respondent — 2021

Drs Tushar and Antima Banerjee were consultant paediatricians at Western Isles Hospital. The tribunal found that their written terms gave them core hours of 9am to 5pm Monday to Friday, with no contractual commitment to work outside those hours, although they could agree to out-of-hours cover. Under section 4.8 of the NHS terms and conditions of service, that out-of-hours work could either be credited against their workload or paid, and the tribunal found that from 2018 to early 2020 the parties had followed the payment route for agreed cover.

After Dr McAuley became Medical Director in March 2020 and the Covid-19 pandemic affected service planning, he asked the hospital to put in place 7-day cover. Applying ordinary contractual principles, including the officious bystander and business efficacy rule, the tribunal found that his emails of 14 and 24 March 2020, including the reference that overtime would be 'available/needed', continued the existing arrangement and provided any required authorisation for payment for the extended-hours cover. It rejected the respondent's reliance on the 5 June 2020 meeting minutes as an admission that the claimants were working for no monetary compensation, finding that Dr Antima Banerjee's comments referred to an earlier emergency arrangement at the start of their employment.

The tribunal accepted that the claimants worked the additional hours claimed, subject to removing dates when they were on annual leave and, for Dr Tushar Banerjee, study leave. It found gross sums due of £13,226.17 for Dr Tushar Banerjee and £13,850.88 for Dr Antima Banerjee, equivalent to net sums of £7,538.92 and £7,895.00 after tax and National Insurance. It held that the respondent breached contract and made unlawful deductions by not paying those sums, and it found the claims were in time because the deduction date was 31 October 2020 and ACAS early conciliation began on 11 December 2020.