Agarwal v Cardiff University and Cardiff & Vale University Local Health Board

EAT 22nd March 2017

Dr Agarwal was employed as a clinical academic by both Cardiff University and Cardiff and Vale University Local Health Board. She worked for the former as a senior lecturer and for the latter as a urological surgeon. Under the arrangements between the two employers, Dr Agarwal was paid a single salary by the University which included pay for both her academic and clinical roles. The University acted as the Health Board’s paymaster in respect of the latter.

Dr Agarwal was absent from work (in both her academic and clinical roles) in 2014 following a dispute with the Health Board. She returned to work in October 2014 and resumed her academic duties. However, the Health Board would not allow her to return to her clinical duties until she participated in mediation and attended an occupational health assessment. Accordingly, Dr Agarwal only received pay for her clinical duties.

She brought a claim against both employers under s.13 ERA (unauthorised deduction of wages). The ET declined to hear the complaint on grounds of jurisdiction. The ET considered that resolution of the claim would require it to construe the terms of contract by which she was employed by the Health Board. In particular, it would be required to consider whether the clinical employer’s obligation to pay her was subject to an implied term that she should submit to mediation and / or an occupational health assessment. Following Southern Cross Healthcare Co Ltd v Perkins [2011] ICR 285, applied in the case of s.13 ERA by the EAT in Somerset County Council v Chambers UKEAT/0417/12, the ET held that this raised an issue of contractual construction which was outside its jurisdiction.

Dr Agarwal appealed. The EAT (Slade J sitting alone) dismissed the appeal, upholding the decision of the ET that it did not have jurisdiction to hear the claim, albeit on different grounds. As held by the EAT, given that of the Claimant’s two employers she was only entitled to pay from the University, any implied terms requiring her to comply with the Health Board’s stipulations of mediation and / or an occupational health assessment, were necessarily part of her contract of employment with the University, and not the Health Board. Whilst this finding does not sit easily with the fact that the University was only a party to the dispute to the extent that it acted as the Health Board’s paymaster and consistently adopted a neutral stance in Dr Agarwal’s dispute with her clinical employer, it necessarily holds given that the employee’s entitlement to pay, whether for academic or clinical work, was exclusively from the University.

The judgment of the EAT is of interest in that it confirms that the approach of the Court of Appeal towards contractual construction in the case of sections 11 & 12 ERA per Southern Cross applies equally to unauthorised deduction claims under s.13 ERA. The judgment also confirms (at least on the facts of the current case) that clinical academics have two separate employment contracts, notwithstanding their entitlement to pay for both from just one employer. 

David Mitchell, instructed by Helen Mortlock of Eversheds Sutherland LLP, acted for Cardiff University.