Nenji v Birmingham Childrens Hospital NHS Trust

JurisdictionEngland & Wales
JudgeLORD JUSTICE PETER GIBSON,LORD JUSTICE SEDLEY
Judgment Date29 June 2001
Neutral Citation[2001] EWCA Civ 1108
CourtCourt of Appeal (Civil Division)
Docket NumberA1/2000/0605
Date29 June 2001

[2001] EWCA Civ 1108

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(His Honour Judge Peter Clark)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Peter Gibson

Lord Justice Sedley

Lord Justice Astill

A1/2000/0605

Ezikiel Nenji
Claimant/Applicant
and
Birmingham Childrens Hospital Nhs Trust
Defendant/Respondent

The Appellant appeared in person.

MR ANDREW HILLIER (Instructed by Messrs Miles & Reeve, 132 Hagley Road, Edgbaston, Birmingham, B16 9NN) appeared on behalf of the Respondent.

Friday, 29th June 2991

LORD JUSTICE PETER GIBSON
1

I will ask Astill J to give the first judgment.

2

MR JUSTICE ASTILL: The appellant, Mr Nenji, is a neurosurgeon who was employed by the University Hospital Birmingham NHS Trust as a registrar in the Department of Neurosurgery until 30th June 1996. On 1st July 1996 he began to work for the respondent Trust in its Department of Neurosurgery and became formally employed by them on 15th July. He was made redundant on 7th November 1997. He claims that he was unfairly dismissed.

3

The period during which he was employed by the respondent, that is from 15th July 1996 until 7th November 1997, being less than two years, left the Tribunal with no jurisdiction to consider his claim. However, the period of time during which he had been employed before 30th June 1996 by the University Hospital NHS Trust could be aggregated by virtue of the Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996 if he could show that he was a prescribed person within the meaning of Article 1(2)(a) of the 1996 Order. That required him to establish that his employment with the Trust was a relevant employment.

4

In his oral evidence to the Tribunal, the appellant said that he had agreed with Mr Hockley, a consultant neurosurgeon employed by the Trust, that he would accept the post offered by the Trust on the basis that he would be allowed to have the position of Registrar Under Training and would remain in that post until he had completed his training and passed the relevant examination. Mr Hockley's evidence to the Tribunal was different. He said that the post was offered on the basis of a locum tenens unless and until Specialist Advisory Committee approval was obtained. Mr Hockley said that the post would then be advertised and the appellant would be able to apply. The Tribunal made no finding of fact about that conflict.

5

There was no dispute that if the appellant's employment with the Trust came within the terms of Article 1(2)(a) it would be "relevant employment" for the purpose of the Employment Protection (Continuity of Employment of NHS Employees) (Modification) Order 1996 and could be aggregated. The Tribunal decided that because the specialist advisory committee had not given approval to the post at the time of the appellant's appointment on 15th July 1996, he was not a "registrar undergoing professional training" for the purposes of Article 1(2)(a) and therefore the periods could not be aggregated.

6

The Employment Tribunal's reasoning was as follows:

"Approval for a post of this level requires obtaining funding for the post and also educational approval from the Specialist Advisory Committee which dealt with the training. A detailed evaluation of the training requirements of the NHS had been carried out during 1992 and 1993, which had led to a number of proposals incorporated in the Calnan Report concerning the procedure to be adopted in dealing with the recruitment and training of doctors and other medical staff throughout the NHS. The importance of obtaining both funding approval and training approval was emphasised in the guide provided for medical staffing which was issued by the West Midland office of the National Health Service Executive in November 1994, which specifically provided (at clause 4.1) that training grade posts could not be filled until the post had both educational and staffing approval. Without such approval it would not be designated a training post."

7

At a preliminary hearing before the appellant's appeal to the Employment Appeal Tribunal Charles J considered the 18 grounds sought to be taken by the appellant. He gave leave on two. Ground one: whether the Tribunal had erred in law in failing to make a finding as to whether the appellant was employed as a locum by the Trust; and ground 14: whether the Tribunal erred in law when it failed to consider and evaluate the evidence adduced by the appellant that he had in fact been undergoing training when occupying the post with the Trust.

8

At the appeal the Tribunal accepted the Trust's submission that "undergoing professional training" in Article 1(2)(a) was to be construed only as occupying a training grade post which had education approval given to it by the Specialist Advisory Committee in addition to staffing approval. In view of that conclusion the Tribunal did not find it necessary to make a finding about the disputed evidence of Mr Hockley and the appellant, nor did it consider it necessary to make a decision about whether or not the appellant was a locum. The Tribunal and the Appeal Tribunal therefore decided the matter on precisely the same basis.

9

The reasoning of the Appeal Tribunal appears to have been based upon a document entitled "A Short Guide to Medical Staffing" issued by the West Midlands office of the National Heath Service Executive in November 1994. The document, Mr Hillier has helpfully explained to us, was for guidance within that area only. The Tribunal quoted extensively from that document as follows:

"4.1This Executive Letter published in July 1994, clarifies the situation regarding training grade posts, and states that 'training grade posts of programmes in the NHS may not be advertised or filled unless the post and/or programme has both current educational and staffing (manpower) approval. All advertisements must contain confirmation to that effect. Any post which does not have the appropriate education and staffing approvals … cannot be designated a training post."

10

Then paragraph 12.1 under the heading "Training Grade Posts":

"12.1It is important that all doctors who are undergoing training are in recognised posts (i.e. one of those listed below). These posts must have both Education and Staffing approval. The most compelling reason for this is so that the quality of training can be assured by an outside organisation, including assessment of the effect that the post will have upon the training opportunities of other training posts within the same department/unit. This applies to both EU/EFTA graduates, as well as overseas doctors."

11

The posts listed included Senior Registrar and Registrar and the Tribunal quoted 13.3 of the guide, which states:

" Educational approval for these posts is given by the appropriate medical college, and the distribution is decided by the appropriate Training Committee of the Board of Postgraduate Medical and Dental Education."

12

The Tribunal then quoted from paragraph 17 of the guide, which is headed "Locum Tenens":

"17.1The term 'locum' should be reserved for a doctor who is temporarily employed when a substantive post is vacant due to leave or other causes."

17.3Incumbents of locum posts should be made fully aware that their time cannot count towards training."

13

The Tribunal went on to accept that a training grade post is one which has education and staffing approval as noted in paragraphs 4.1 and 12.1 of the guide. It then considered the Glossary of Terms which attaches to a document published in March 1996 entitled "A Guide to Specialist Registrar Training" which defines "Specialist Advisory Committees" as

"…national committees which relate to the royal colleges or their faculties or higher training committees. They are speciality-specific and concerned with setting standards, curriculum content and monitoring trainees' progress on behalf of the relevant college."

14

With that reasoning the Appeal Tribunal,...

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1 cases
  • G A Malik v Plymouth Hospital NHS Trust
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 June 2009
    ...myself. 19 Mr Malik points out the Nenji case, which was referred to by the Employment Appeal Tribunal in its decision ( Nenji v Birmingham Children's Hospital NHS Trust [2001] EWCA Civ 1108), where it was held that it does not have to be a post which is providing training up to a particula......

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