An oral surgeon who had qualified before 1993 and did not have a vocational training number required for an NHS list number had not been discriminated against as, on the facts, it was her specialism which debarred her from obtaining the number, rather than her age.
Facts
Dr Kershaw was born on 12 February 1965. When she qualified as a dentist in 1987 there was no requirement for an aspiring dentist to carry out vocational training (VT) prior to registration as a dentist. This changed in 1993. Although technically a dentist intending only to practice privately may not need to do VT, in practice all dentists qualifying after 1993 would do one year’s VT. Once done, the dentist would be allocated a VT number, which they needed to obtain an NHS list number.
Having qualified, Dr Kershaw trained in maxilla-facial surgery and from 1998 worked as an Oral Surgeon in Scotland. She did not carry out the VT course when she graduated or subsequently. From around 2016 Dr Kershaw was doing a mixture of private and NHS work as a freelance Oral Surgeon. As she did not have an NHS list number, she charged for NHS work she did using the list number of a dentist in the practice for which she was doing the work.
After VT became compulsory, there was a “grandfathering” arrangement for qualified dentists to obtain a VT number by showing they had carried out general dental work for a period of five years. Dr Kershaw did not qualify to obtain a VT number by this route as she did not do general dental work but worked as a Specialist Oral Surgeon.
During the Covid-19 pandemic, after a vaccine was developed, the Scottish government issued a memorandum to NHS Boards on 30 November 2020 advising them of the possibility of involving NHS dental contractors in the Covid-19 vaccination programme at a sessional rate of £230. Dr Kershaw signed up for and completed the training and was asked to start work as soon as possible. After she had already started work there was some correspondence with the Respondent’s Director of Dentistry and Clinical Dental Director about the administrative arrangements for paying her, as she did not have an NHS list number. The Director thought she could get round the issue by temporarily recruiting Dr Kershaw to the emergency dental service.
On 5 March 2021 the Scottish government issued an addendum to their original memorandum which said that dentists did not need to have a pre-existing contractual relationship with an NHS Board to obtain the sessional rate previously agreed. It also said that any other staff within dentist or optometry practices could register with a bank at Band 5 or Band 3 dependent on their expertise.
In April 2021 Dr Kershaw was told that although they had intended to recruit her as a dentist, they were not permitted to enrol someone to the emergency dental service if their sole role was to be a vaccinator and she would be moved to a Band 5 vaccinator role, which paid significantly less.
Dr Kershaw brought claims for unauthorised deductions from wages and for indirect age discrimination.
Dr Kershaw alleged that the respondent operated a provision, criterion or practice that in order to qualify for the higher pay rate Dr Kershaw needed to be an NHS contractor with an NHS list number and in order to obtain an NHS list number, she needed a VT number. Dr Kershaw was in a group of those aged 51 and over who had qualified prior to VT becoming compulsory in 1993 and Dr Kershaw was thus placed at a disadvantage.
Decision
Her claim of age discrimination failed.
The initial burden of proof was on Dr Kershaw to adduce facts from which the tribunal could draw an inference of discrimination and the tribunal held Dr Kershaw had failed to discharge the burden.
The evidence of the respondent was that even if a dentist had carried out VT training, they would still be required to undertake various additional steps to prove their competence after they had been out of general dental practice for a year. It was the respondent’s contention that the reason Dr Kershaw did not have a VT number was because of her specialism and that she did not do general dental work.
The tribunal found that it had not heard sufficient evidence on the precise difficulties Dr Kershaw faced based on her age, as distinct from the fact she had been out of general dental practice for some time. It held that, on balance, the reason Dr Kershaw was ineligible for an NHS list number was because she did not carry out general dental work and could not demonstrate her competence in general dental surgery to the extent required.
The dentist had failed to adduce sufficient facts from which the tribunal could make a finding that the provision, criterion or practice adopted by the local health board indirectly discriminated against her and those of her age group, making her claim of age discrimination fail.
The judgment is available here.
Kershaw v Tayside Health Board, case number 4101271/2022, 26 July 2022