David Welch – Employment Law Lawyer

David was called to the Bar in 2005.

David’s Employment work includes regular advocacy in the Employment Tribunal, Employment Appeal Tribunal, Court of Appeal and the County Court.

David has over 25 years experience handling employment cases including all types of discrimination claims, Unfair/Constructive Dismissal, Redundancy, TUPE, and other contractual claims. He has also undertaken considerable County Court work. He is particularly experienced and well known in NHS and medical Academic matters.

He is known as a determined, diligent and mature litigator.

David appears for both Respondents & Claimants. He has been instructed by many Claimants (including senior management executives of listed companies), Trade Unions and NHS Trusts including Barts & the London, North West London Hospitals, Harrow PCT, Hillingdon, and North Middlesex.

He also conducts medico- employment law cases.

His specific areas of interest include Sex, Race and Disability Discrimination, Unfair/ Constructive Dismissal, TUPE, Breach of Contract/Overpayment of Wages, Equal Pay, Mediation, Restrictive Covenants and Compromise Agreements.

He accepts instructions from solicitors, plus various private and public organisations.

He is also licensed to accept instructions under the Bar Direct Public Access Scheme. He is able to offer workplace training in Employment Law, Dispute Resolution and on investigation/handling of disciplinary and grievances at employer level..

His caseload has involved complex and lengthy Tribunal work as well as handling numerous workplace disputes including mediation in GP practices. He is an experienced trainer of Human Resources and medical staff.

Previously he was a solicitor and spent 13 years working for the British Medical Association where he represented doctor employees and employers in both the public and private sector, locally and nationally.

He then gained Partner level management experience in a niche City solicitor’s firm and was appointed Head of Employment Law.

He sat on the Employment Tribunal at London Central, the Employment Appeal Tribunal for eight years and acted as a Magistrate for ten years.

 

LEADING CASE

Barts NHS Trust v Verma (link) EWCA Civ  2011 1129

David successfully represented the Appellant Barts Trust in this case.

N.B. This case is subject to a further appeal and will be heard in the Supreme Court later in 2012.

The issue concerned what should happen to the pay of a part-time NHS doctor taking up a full-time training position when undergoing approved training? The relevant NHS Terms and Conditions allow clinical staff to have their pay protected, but they are less clear concerning the pay of part-timers. Should she be paid at a “full-time rate” for her previous job, even if that means that her pay whilst training is considerably higher than her previous, part-time pay?

No, stated the Court of Appeal in Barts NHS Trust v Verma, by a majority (Rix and Rimer LJJ), with Elias LJ dissenting.

The Claimant had a sessional post and worked two sessions (7 hours) a week. When she took a full-time Junior Doctor  position as approved training, the Respondent Trust limited her protected pay to the maximum pay for her sessional post at five sessions or 17.5 hours – resulting in a pay rise for the Claimant, but not paying a notional full-time equivalent salary at sessional rates.
When the Claimant brought a wages claim, seeking protected pay at the notional full-time sessional rate for her previous role, the employment tribunal held that her pay was protected for five sessions per week. The Claimant appealed successfully to the EAT, and was awarded her notional full-time sessional pay, meaning she was paid more than twice her previous pay.

On the Trust’s appeal, the Court of Appeal, noting the difficulties caused by the wording of the NHS Terms and Conditions, overturned the EAT’s decision and restored the Employment Tribunal Judgment. Although the majority of the Court of Appeal considered that it should only be two sessions that were protected, the Trust’s pragmatic concession left the employment tribunal’s Judgment unaffected. Rix LJ held that “the natural, rational and purposive interpretation of these provisions relating to protected pay… [protects] …the practitioner for the pay in a previous role which he or she earned” but does not “[extend] their pay to a figure possibly far in excess of any figure previously earned”.
The Judgment sets out the correct approach for clinical part-timers moving to full-time with protected pay.