Is the collective term ‘apt’ for incorporation? 



Only terms in a collective agreement that are “apt” (i.e. suitable) for incorporation into the individual employment contract will it be legally enforceable. 



Collective terms that have been incorporated into an individual contract of employment can only be changed by agreement. Where a trade union is recognised, agreement should be reached through collective bargaining.



Here are some examples of the factors courts and tribunals take into account when deciding whether a collective term is apt for incorporation, and therefore contractually binding: 



• Choice of language: if the parties use language that clearly shows an intention to create binding legal obligations, such as “the employer will pay”, the term is more likely to be legally binding. By contrast, the use of aspirational language such as “should” or “ought” makes the term far less likely to be legally binding. The location of the term within the document can also be important.



• Certainty: The words chosen must be clear enough for a court to be able to work out what the parties must have intended to agree.



• Workability: This is important. Courts often test collective terms by asking what would happen in practice if they created a binding contractual obligation owed to (or by) individual workers. Here are two good examples: 



◊ In Malone and Others v British Airways PLC [2010] EWCA Civ 1225, the court decided that a promise in a collective agreement that the BA flight crew complement would never drop below a fixed number was not intended as a legally enforceable obligation, because this would have given individual crew members the legal right to ground the plane by refusing to fly, even if the crew complement met minimum safety standards. 



◊ In George v Ministry of Justice [2013] EWCA Civ 324, a court decided that a promise in a collective agreement that prison officers could take time off in lieu (TOIL) within five days of performing extra hours was not intended to be legally enforceable, because it would have given individual officers the legal right to insist on taking TOIL even in an emergency, or regardless of cover. 



• Is it a collective procedure or an individual right? Each individual step in a collectively agreed process- for example, a job evaluation procedure – may not be legally enforceable, but the end result of the process, for example, a regrading and the right to higher pay and/or back pay, is likely to be legally enforceable (Simpson v Hackney and others [2012] UKEAT/0104/12/DM). Courts tend not to get involved in “micro-managing” workplace policies and procedures, unless it is clear from the text of the agreement that this is what the parties intended.



• Work rules: Work rules regulating day-to-day working practices are not normally legally binding, unless clear language is used to demonstrate that the parties intended to created legal obligations. For example, in Dryden v Greater Glasgow Health Board [1992] IRLR 469, a new smoking ban was a change to a non-contractual working practice, not a change to Dryden’s contract. This meant that when he resigned in protest, his claim for constructive dismissal failed, because there was no breach of contract.



Once collectively agreed terms have been incorporated into the employment contract, changes to those terms that are agreed in negotiations normally bind all the employees in the bargaining unit whose contracts contain the relevant term. This is the case even if they might not like what has been negotiated, especially if there is a substantial delay before they voice their objections (Henry v London General Transport Services [2002] IRLR 472). 



The position is more complicated in the case of post-transfer changes to collective terms, following changes to the Transfer of Undertaking (Protection of Employment) Regulations (TUPE), made in 2014. For more information on contract changes after a TUPE transfer see Chapter 12, page 478.



If a workplace rep has apparent authority to negotiate, the employer can reach a deal at workplace level even if the procedures say that a full-time official should be informed of any deals concluded (Harris v Richard Lawson Autologistics [2002] IRLR 476). However, if a change has not been agreed by all recognised unions, the term may not be universally incorporated:


Once a change is incorporated into an employee’s contract, it becomes a binding contract term. Neither side can revert to the previous contractual arrangement without further agreement, which should be reached through collective bargaining. 



For example, in Sparks and Others v Department for Transport [2016] EWCA Civ 360, the Court of Appeal ruled that the trigger points for disciplinary action in a negotiated absence management procedure were contractual. They could only be changed by agreement with recognised unions. 



Once incorporated, the contract term continues to exist independently of the collective agreement even after the collective agreement has fallen away (Gibbons v Associated Ports [1985] IRLR 376).



It is a breach of section 145B, Trade Union and Labour Relations Consolidation Act 1992 to offer members an inducement (such as a one-off payment) in return for giving up their collectively agreed terms, or their right to have those terms decided through collective bargaining (see Chapter 5).