A company reached an agreement with the T&G general union giving workers the right to 20 days’ leave plus bank and public holidays. The company then published a staff handbook that said that bank and public holidays were part of the 20 days. The EAT held that the collective agreement’s effect was to amend existing contracts, and the employer could not unilaterally change them.

Wood Hall Personnel & Transport v Harris and Gonsalvez EAT/156/02

BA wanted to reduce the number of staff on flights but the employees resisted and argued that the terms in the collective agreement specifying crewing levels were contractually enforceable. The Court of Appeal found that while some of the provisions of the collective agreement were intended by the negotiating parties to be incorporated into individual contracts of employment, others were “aspirational” only.

The Court found that the collectively agreed undertaking to fly with the agreed crew complement was not legally enforceable but instead was a “best practice” aspiration by BA towards the cabin crew employees as a group, binding in “honour” only, although carrying the risk of industrial action if breached. The Court noted that if the crew complement term were individually enforceable by each crew member, any crew member would be legally entitled to refuse to work if BA was unwilling or unable to fly without the agreed crew complement. This could result in aircraft being grounded.

The Court concluded that if either party had considered this issue when negotiating the collective agreement, they would have understood the clause not to be contractually enforceable by individual crew members.

Malone and Others v British Airways PLC [2010] EWCA Civ 1225

The claimant, a bilingual teaching assistant employed by the London Borough of Hackney, began work on pay grade 1. She asked repeatedly for a job evaluation over some four years, but nothing happened. In December 2008, a local level collective agreement on job evaluation known as the Hackney Process was reached between the unions and the Borough. As a result her job description was finally agreed and her job evaluated at Grade 6. Her pay was increased in line with Grade 6 but she claimed back pay to compensate for the delay in evaluating her pay.

Her contract was governed by three collective agreements: the national sector agreement for pay (the Green Book), the Greater London Local Government collective agreement covering job evaluation (the Gold Book), and the Hackney Process — an agreement on the operating principles for job evaluation.

The case turned on the extent to which collectively agreed terms relating to job evaluation had been incorporated into her contract of employment.

The EAT found that provisions governing the job evaluation process in the Green Book and Gold Book were not incorporated into the claimant’s contract because they were not apt for incorporation. The sections in the collective agreements about pay were legally enforceable, but the sections regulating the job evaluation process were joint advice only and were not legally binding. As a result, they did not support a legal right to a job evaluation and to damages for loss resulting from delay in carrying it out.

However, the EAT also found that the local level collective agreement — the Hackney Process – contained a clear entitlement to backdated pay from the date of the employee’s original request for re-evaluation. Since her first request for re-evaluation was made orally in 2005, she was entitled to back pay at Grade 6 from that date.

Simpson v Hackney and others (UKEAT/0104/12/DM)

In 2007, UNISON and the GMB negotiated a three-year pay deal with the London Fire & Emergency Planning Authority. The first two years were for straight percentage uplifts, but the third year was more complicated. The wording of the agreement allowed for an increase in 2009 of either 2.5% or 1% above the NJC settlement. However, by this time, the economic downturn had started to bite on wages.

The employer argued that it was not obliged to award the pay increase in the third year since the wording was too ambiguous to be enforceable, as it gave the employer a choice. The EAT disagreed, and said that it was enforceable, but that it should be interpreted literally — giving the employer a free choice to decide between 2.5% and what was, as a result of the downturn, a much lower amount.

The Court of Appeal reversed this decision, and found in favour of the unions. The judges said contracts should not be interpreted literally. Instead it is necessary to take into account the context in which the parties were operating and the background knowledge that would reasonably have been available to them. Here, the context was an industrial bargain — an attempt to secure a three year pay deal. Against this background, it was “fanciful” to imagine that the parties intended the employer to have a free hand in year three to decide between two alternatives. “Such a construction flouts industrial common sense”. Instead, the judges interpreted the clause to add “whichever is the greater” to spell out what was obviously the true meaning of the clause.

Anderson v London Fire & Emergency Planning Authority [2013] EWCA Civ 321

Objecting to a new company policy of random searches, Mr Trotter resigned and claimed constructive dismissal. The EAT held that while the policy change did amount to a fundamental breach of contract, the constructive dismissal was fair. The policy had been introduced after consultation with the unions, so it was not imposed arbitrarily, and it would not be reasonable for the employer to have to differentiate between employees who had agreed the change and those who had not.

Trotter v Grattan EAT/0179/03

A local authority wanted to change holiday terms, but only reached agreement to do so with one of its two recognised unions; nevertheless it introduced the change. The EAT noted that collective bargaining “rests upon a foundation of consensus and process” and that the processes for voting agreed between the unions had not been followed. This meant there had been no local agreement to the change, which therefore had not been incorporated into employees’ contracts.

South Tyneside MBC v Graham EAT/0107/03