A1/2000/0605

Neutral Citation Number: [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

								Friday, 29th June 2001

B e f o r e:

LORD JUSTICE PETER GIBSON
LORD JUSTICE SEDLEY
LORD JUSTICE ASTILL

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EZIKIEL NENJI

Claimant/Applicant

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BIRMINGHAM CHILDRENS HOSPITAL NHS TRUST

Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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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.

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J U D G M E N T
	Friday, 29th June 2991 
J U D G M E N T
1.	LORD JUSTICE PETER GIBSON: 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, mirroring the decision of the Tribunal, rejected the appellant's submissions. 
15.	Article 1(2)(a) provides: 
“(a) `relevant employment' is employment by a health service employer as a medical practitioner ... in the grade of Registrar, Senior Registrar ... while undergoing professional training which involves that person being employed successively by a number of different health service employers”.
16.	The short point is whether the Employment Tribunal and the Employment Appeal Tribunal were in error in finding that the appellant was not undergoing professional training because Specialist Advisory Committee approval had not been obtained for the post which he occupied with the Children's Trust. If they were correct then, since it is common ground that Specialist Advisory Committee approval had not been obtained for this post, any other evidence that the appellant was undergoing training was irrelevant and the decision not to make a specific finding about the dispute of fact between Mr Hockley and the appellant was correct. 
17.	The appellant's submission in short is that the Tribunal's construction is not in accordance with the ordinary and literal meaning of Article 1(2)(a), which does not stipulate that the approval of the Specialist Advisory Committee must first be obtained before a grade came within the definition “while undergoing professional training”. Indeed, Article 1(2)(a) makes no attempt to define professional training. The appellant develops that contention by submitting that Specialist Advisory Committee approval could not have been intended or required by Article 1(2)(a) because the Specialist Advisory Committee is not an approving authority of the training posts of Registrar and Senior Registrar, and by the wording of Article 1(2)(a) it is sufficient simply to be a registrar. The appellant relies upon paragraph 13.3 of the document “A Short Guide to Medical Staffing” under the heading “Training Grade Posts” and the sub-heading “Senior Registrar”, 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.”
18.	That means, submits the appellant, that it is the post of Registrar and Senior Registrar that is given educational approval by the appropriate medical college and the distribution of those posts is decided by the appropriate training committee. The Specialist Advisory Committee is only one of the institutions which is involved in higher specialist training. There are others which have different mandatory, regulatory, advisory, supervisory and examining training roles in the course of professional training, and the absence of the naming of the Specialist Advisory Committee in Article 1(2)(a) must mean that it is not the only authority which has the authority to approve a post and convert it into one which is “undergoing professional training” for the purposes of Article 1(2)(a). The appellant's response to the definition of Specialist Advisory Committees in the “Glossary of Terms” attached to the March 1996 document is that the Specialist Advisory Committee takes no part in the training agreement of an individual trainee. 
19.	He further submits that because Specialist Advisory Committee approval is not relevant to Article 1(2)(a) it is necessary to look at other evidence to see whether his employment with the Trust was a “relevant employment”. He complains that the Tribunal and the Appeal Tribunal failed to do so because of their error in construing Article 1(2)(a) as they did. 
20.	There is a body of evidence which the appellant points to which is relevant to the nature of his employment if the Tribunal's interpretation of Article 1(2)(a) is wrong. There is a letter dated 18th July 1995 from the Acting Head of the University Department of Neurosurgery to the Secretary of the Specialist Advisory Committee in Neurological Surgery to the Royal College of Surgeons in which the position of the appellant was described as “visiting Registrar”. The letter then goes on to say, 
“This post has educational (SAC) approval but manpower approval is awaited”
21.	Although that is concerned with the previous employment, it is significant that he is described as a registrar. There are further letters which describe the appellant as taking part in a visit by the Specialist Advisory Committee concerning the inspection of the training programme. One such letter is dated 17th March 1997 (which is after the beginning of his employment with the respondent Trust) written by Mr Hockley to the appellant referring to the visit to the Queen Elizabeth and Childrens Hospitals of representatives of the Specialist Advisory Committee in Neurosurgery to inspect the training programme. The letter reads as follows: 
“An important part of their visit will be to interview our Higher Surgical Trainees, and I have arranged for individual interviews to be held in the Post Graduate Centre between 11.00 a.m. and 12.30 p.m. Most interviews will take 10-20 minutes and your allocated time will be as follows: 
12 noon. 
Can you make sure that you bring your up-to-date log book, completed RITA form and, if possible, your CV.”
22.	The RITA form is a record of in-training assessment, and the glossary to the March 1996 document describes it as a form which
“should normally be completed jointly by the trainee and the post graduate dean or his staff each year. It provides a record of the review of training for that year and of the trainee's progress through the grade, but it is not a means of assessment per se.” 
23.	In addition there is a study leave request on a form for completion by senior registrars and the SHOs (Senior House Officers), signed both by Mr Hockley and the appellant, in which the appellant is asking for a period of leave to provide study time for a fellowship examination. 
24.	Mr Hillier submits that “undergoing professional training” means, inevitably, SAC approved training, that; if a person is employed as a registrar, he is undergoing training, but you cannot properly be a registrar unless you are in an approved post. That, he gets not from Article 1(2)(a), but from management practice. He submits that it clearly was the intention of Parliament to maintain the levels of training but yet protect the transfer from one approved post to another. He submits that, unless the training is SAC approved, it is not professional training for the purposes of Article 1(2)(a). 
25.	Did the Tribunal and the Appeal Tribunal err in law in their construction of Article 1(2)(a) of the 1996 Order?
26.	Article 1(2)(a) defines “relevant employment” for the purposes of the Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996. It is relevant to the aggregation of employment by National Health Service employees which would enable this appellant to bring proceedings for unfair dismissal. The document “A Short Guide to Medical Staffing” is directly concerned with the maintenance of standards of training. It is a management document. It is a document which was relied upon by the Tribunals in their construction of Article 1(2)(a). It is what it says it is, that is “a guide”. In my judgment, it does not seek to interpret Article 1(2)(a) and it is not concerned with contracts of employment or employment law. It is concerned with standards of training and it makes that clear at paragraph 12.1: 
“It 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.”
27.	The reason for this degree of control over professional training is to ensure even and relevant professional standards. It is not only just a guide but it is one issued by one office only of the National Health Service Executive. It does not claim for itself a wider jurisdiction geographically, nor does it claim any force of law. 
28.	Specialist advisory committees are, as the glossary to the March 1996 document states, 
“...concerned with setting standards, curriculum content and monitoring trainee's progress on behalf of the relevant college.” 
29.	They too are concerned therefore with the maintenance of appropriate standards of training. They do not seek to interpret or define employment law. 
30.	However, Article 1(2)(a) is solely concerned with employment law, as is, of course, the 1996 Employment Protection Order. 
31.	Article 1(2)(A) applies to a registrar who is undergoing training. Not only does the post of Registrar itself imply the probability of training (it is a question for future decision as to whether that must be so), but there is here a body of evidence, some of which I have referred to, which may well indicate that the appellant was a registrar undergoing professional training for the purposes of Article 1(2)(a). If it is the case that Article 1(2)(a) is not to be construed with reference to the Specialist Advisory Committee approval, as I believe it is, the decisions of the Tribunal were wrong in law and the evidence to which I have referred must be considered so that the question of whether the appellant was undergoing professional training can be decided. That is an issue of fact for future decision. So too is the conflict between Mr Hockley and the appellant about the terms of his employment with the Trust. That is a matter that must be resolved. Only then will the Tribunal be able to come to a conclusion about whether the appellant was in the post of Registrar undergoing professional training for the purposes of Article 1(2)(a) of the 1996 Order. 
32.	Accordingly, I would allow this appeal and refer this case back to the Tribunal for a rehearing. 
33.	LORD JUSTICE SEDLEY: Article 1(2)(a) of the Order sets in motion two inquiries. First, was the applicant employed by a health service employer as a registrar? Second, during that employment did he undergo professional training?
34.	The first is a mixed question of law and fact. The answer to it in the present case has yet to be determined. It is sufficient to say that, whatever is made of the dialogue between the appellant and Mr Hockley, the contractual documents give cogent support to the appellant's case under this head. 
35.	In relation to the second question, the answer is accepted to be, factually at least, in the affirmative. Mr Hillier acknowledges that Mr Nenji's work, if it was as a registrar, will have included training as almost by definition it must. But it was not SAC approved training, and this, Mr Hillier submits, is necessarily what the definition in Article 1(2)(a) envisages. 
36.	In my judgment there is no warrant for adding this gloss to the words of the order. There is indeed a warrant for not doing so. Not only would it have been perfectly simple for the Secretary of State to include such words had this been his intention, but their absence, contrary to Mr Hillier's argument, does not impact at all on the quality of training or the complexity of the consequent issues. To allow non-approved training to count towards qualification would no doubt be wrong, and it is to this that the West Midlands staffing guide is sensibly addressed. To allow to it count towards continuity of NHS employment has no analogous impact. It simply directs the Employment Tribunal's attention to the purpose of the Order, which is that the division of the National Health Service into independent employing bodies should not disadvantage trainee doctors for whom rotation between employments is a necessary aspect of this phase of their careers. If the training given falls short of the approved standard, there is every reason why it should not count towards qualification but no reason at all why it should not count towards continuity. 
37.	I am therefore not only not persuaded that SAC approval needs to be read into Article 1(2)(a) of the Order; I can see exactly why it is not there. Like Astill J, therefore, and for the reason given more fully by him, I would allow this appeal. 
38.	LORD JUSTICE PETER GIBSON: I agree with both judgments. This appeal will be allowed and the case remitted to a different tribunal.
Order: Appeal allowed with costs.