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Senior Partner
Senior Partner, Solicitor
Category: UK Employment Law
Satisfied Customers: 13325
Experience:  30 years experience
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Tribunal hearing.

This answer was rated:

Hi,


 


I have a Employment tribunal hearing tomorrow morning. Can you please quickly answer following especially question 1 and 2?


 


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.


 


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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).


 


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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, is this approval 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 or excluded for the purpose of calculating the sick allowance.


 


 


 


Thanks


 


K


 

Thank you for your question. I am sorry to say I think you have no case. For calculating continuity normal context it requires employment. This seems pretty clear here as well from the wording of the rules:

See 213 " "continuous locum service" shall be taken to mean service as a locum in the employment of one or more authorities.

Working for an agency is not employment by an authority.

Unless you can demonstrate some custom or practice there seems no basis for your claim
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