Employment tribunal awards over £13,000 in deducted wages to dentist who worked as Covid vaccinator

Audrey Kershaw, who qualified as a dentist in 1987, raised the claim against Tayside Health Board arguing that she had been underpaid for her work as a vaccinator, which arose from the fact that she had qualified as a dentist before the introduction of a now compulsory vocational training scheme.

The case was heard by Employment Judge I McFatridge sitting alongside Tribunal members J McCullagh and A Shanahan. Mr Oxton, advocate, appeared for the claimant and Ms Craik, solicitor, for the respondent.

No VT number 

The claimant was trained in maxilla-facial surgery in England following her qualification and later worked in Dundee Dental Hospital as an oral surgeon and later associate specialist until going freelance in 2016. At the time the claimant qualified as a dentist, it was not compulsory for her to carry out vocational training. As a result, when she went freelance, she had been unaware that she could not obtain an NHS list number without first obtaining a VT number.

From 2016 to 2020 the claimant charged her NHS work using a colleague’s list number having been advised to do so by an employee of Kings Cross Hospital in Dundee. While there was a system in place for dentists qualified before 1993 to be grandfathered into obtaining a VT number, the claimant believed she did not qualify for the scheme as she had done specialist rather than general dental work.

In 2020, the claimant signed up to participate in the Covid-19 vaccination programme, under which she understood that dental contractors would be paid £230 per session per a Scottish Office memorandum. After difficulties were raised concerning her lack of a VT or NHS list number, her line manager enrolled her in the Band 5 vaccinator role, for which she did not receive the £230 contractor rate.

As a result of this, the claimant received £3,086 for her vaccinator role as opposed to be £16,285,50 she would have been entitled to under the contractor rate. She considered that the reason for this was that she did not have a VT number and that this was related to her age. Her position before the Tribunal was that £13,199.50 had been unlawfully deducted from her ages.

Respondent’s intention 

In its determination, the tribunal observed: “The claimant’s recruitment appears to have been done on a fairly informal basis. At the time the information available to both the claimant and the health board would be that contained in the Scottish Government Memorandum of 30 November. The Tribunal accepted the claimant’s evidence that in her mind there was really no question but she was going to be paid £230 per session. There was absolutely no evidence from the respondent to suggest that the person who recruited the claimant had any different view.”

It continued: “The only reasonable interpretation of the respondent’s intention at the time the claimant was hired was that she be paid the sessional rate of £230 per session applicable to dentists. For this reason the Tribunal considered that the amount properly due under the claimant’s contract with the respondent was the sessional rate of £230 per session. It therefore follows that the claimant has suffered a series of unlawful deductions from wages, the last of which took place on 30 September 2021.”

Turning to the claim of indirect age discrimination, the tribunal said: “The Tribunal’s view was that we would have preferred to have heard much more evidence in relation to precise difficulties which the claimant would face simply based on her age rather than the fact that she had been out of general dental practice for some time. The claimant was asked about carrying out the NEST training and indicated that she would be required to do work which she was well capable of doing but would be below her skill level and essentially a waste of her time.”

It concluded: “The Tribunal’s view was that the claimant had failed to adduce sufficient facts from which we could make a finding that the PCP adopted by the respondent indirectly discriminated against her and those of her age group. The claim of age discrimination therefore fails. We should say that had the claim of age discrimination succeeded, the claimant would not have been entitled to double accounting and the only compensation she would have received would be a payment of compensation for injury to feelings which we would have assessed at £1,000.”

The tribunal therefore ordered the respondent to pay the claimant the sum of £13,199.50 but dismissed the claim of indirect age discrimination.