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Jenny McKenzie
Jenny McKenzie,
Category: UK Employment Law
Satisfied Customers: 5036
Experience:  10 Years of experience in Employment Law and HR
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Service or Employment

Resolved Question:

Hello,


 


I am a doctor who has previously worked both in regular NHS appointment; and also as a locum doctor (for period lasting from 1-6 months in each stretch) in NHS but through employment agencies on the payroll of employment agencies. I have again started working for NHS directly in a permanent job. I have now a dispute regarding counting of my previous NHS service for the purpose of Sickness allowance entitlement. My Human Resource department is reluctant to take into account my previous work in NHS hospitals which I did through private locum employment agencies. They are citing NHS Terms and Conditions of Service rules which can be found on the following link http://www.nhsemployers.org/SiteCollectionDocuments/Hospital_Medical_and_Dental_Staff_TCS_March_08_cd_160209.pdf I reproduce some of the relevant paragraphs from the above link. Most relevant are paragraphs 213, 228a and 243.


 


Continuous locum service


213. For the purposes of paragraphs 123, 211, 212 and 243, "continuous locum service" shall be taken to mean service as a locum in the employment of one or more authorities uninterrupted by the tenure of a regular appointment or by more than two weeks during which the practitioner was not employed in the NHS.


.....


 


Previous qualifying service


228.a. For the purpose of ascertaining the appropriate allowance of paid sick leave under paragraph 225, all periods of service (without any break of twelve months or more, subject to sub-paragraph b. below) under any employing authority constituted under the National Health Service Act 1977, or any local authority, or in the Civil Service or the teaching service, or any other service approved by the Secretary of State for the purposes of the NHS Pension Scheme Regulations 1995 (as amended).


.....


 


Locum tenens


243. For the purpose of sick leave allowances, a practitioner's service shall be taken to include locum service. A practitioner who has reached age sixty-five, and who does not hold a contract under paragraph 200.a, shall not be entitled to sick leave allowance, unless immediately beforehand the practitioner has completed at least three months' continuous locum service; three months' continuous locum service having the meaning assigned to it in paragraph 213.


 


My questions are:


 


1. Is the 'service' word synonymous with 'employment' in these rules? This is important for me as some my work in NHS hospitals were as a locum doctor via employment agencies and I want to know if those works are covered in the 'service' category?


 


2. Language of rule 228a is bit confusing to me. There is a mention of a service to be approved by the Secretary of State for the purposes of the NHS Pension Scheme Regulations 1995. However what I do not understand is that, does this approval is necessary for 'other service' only, or it is applicable for all services mentioned in 228a? This is important for me as my locum services to NHS hospitals were via employment agencies on the payroll of the employment agencies and thus I was not under NHS pension scheme.


 


3. In a nutshell I want to know if my locum services to NHS hospitals via employment agencies on the payroll of the employment agencies, should be counted orexcluded for the purpose of calculating the sick allowance.


 


Thanks


K

Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Jenny McKenzie replied 1 year ago.
Hello and welcome to Just Answer, just by way of background do you know if they always seek to disclude agency locum work?
Customer: replied 1 year ago.
Hello, thank you for your response.

I cannot be sure and this what I am challenging in Employment Tribunsl and that is why the above post

Thanks
K
Expert:  Jenny McKenzie replied 1 year ago.
Hi let me do some research to see if there is any case law on this point. I will get back to you shortly.
Customer: replied 1 year ago.

Thank you madam.

 

I am waiting for your response.

 

Here are 2 aspects to questions in my original post: Questions 1 & 2 are about pure interpretation of the language of the rules. While question 3 is about relevant case law. I believe that questions 1 & 2 can be dealt with quickly while you search for case laws for question 3. I have my employment tribunal hearing on Monday the 8th July so would be grateful for an early response.

 

Thanks.

K

Expert:  Jenny McKenzie replied 1 year ago.
Sorry I was called away yesterday I will respond in full this morning.
Customer: replied 1 year ago.
Thank you Madam. I am waiting. This is urgent now please.

Thanks
K
Expert:  Jenny McKenzie replied 1 year ago.
Ok will ewpond within the hour.
Expert:  Jenny McKenzie replied 1 year ago.
Hello I cannot find any case law to support your point.

It would appear that it is intended not to apply to private agency staff working within the NHS. The NHS Direct People Transition Policy http://www.justanswer.com/uk-employment-law/7uuyz-service-employment.html states that agency work would not be included.

However there is an argument that there is discretion to include the service but generally it would need to be agreed at the commencement of the employment.

s. 12 (2) of the NHS Terms and Conditions of Service Handbook states 'Employers have the discretion to take into account any period or periods of employment with employers outside the NHS where these are judged to be relevant to the NHS appointment.

If I were you I would put this section to the Employment Tribunal and ask the question of whether and in what circumstances this discretion has been exercised in the past. If you can demonstrate that it is normally exercised in favour of employees then the Employment Tribunal might find in your favour.

I am sorry I have not found anything that definitively supports your position and would wish you all the best in your case next week.

If you have any follow on quesitons please ask. If I have answered your question I would be grateful if you would give a positive rating. Thank you and all the best.
Customer: replied 1 year ago.
Hello Madam,

My question 2 in original post is more about language. Can you please try to answer question 2 quickly?

Thanks
K
Expert:  Jenny McKenzie replied 1 year ago.
Yes your question 2 will be the arguement that the employer will use, that is in order for the service to count it must be for an employer that is a member of an NHS pension scheme.
Jenny McKenzie,
Satisfied Customers: 5036
Experience: 10 Years of experience in Employment Law and HR
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