Briggs & Ors v Nottingham University Hospitals NHS Trust

In construing a nationally negotiated employment agreement, the meaning of a category of post must be determined from its contractual context. A qualification-based description does not necessarily extend to a different managerial post merely because its holder possesses those qualifications and performs some underlying skilled work. Relevant factors include the agreement’s wording and structure, distinctions between posts, pay bands and job descriptions, categories expressly included or omitted, recruitment evidence and, where relevant, equal pay implications. On that approach, a maintenance supervisor was not within the listed category of qualified maintenance craftspersons.

The claimants, maintenance supervisors employed by an NHS Trust, sought a declaration concerning their employment terms. They claimed that their posts attracted a recruitment and retention premium under the Agenda for Change terms incorporated into their contracts. They relied on Table 19 in Annex R, which listed qualified maintenance craftspersons, and argued that their qualifications and continuing hands-on work brought them within that category.

The employment tribunal dismissed the claims by a lay-member majority, with the Employment Judge dissenting. The Employment Appeal Tribunal upheld that decision in UKEAT/0483/08/RN. The central issue on the second appeal was whether, construed in context, the listed type of post included supervisors who possessed the relevant craft qualifications.

1. Appeal dismissed. The Employment Tribunal had not erred in law in holding that a maintenance supervisor did not hold the post of qualified maintenance craftsperson listed in Table 19.
2. The expression “QMC” was reasonably capable of both a broad construction, including qualified craftspersons with supervisory duties, and a narrower construction excluding a distinct supervisory post. The agreement had to be construed in context rather than by language alone.
3. The relevant context supported the narrower construction. Table 19 listed types of post, not qualifications or qualified persons as such. Supervisors had materially different managerial responsibilities, pay bands and job descriptions. The table expressly identified some categories by seniority, but did not separately include supervisors.
4. The stated purpose of recruitment and retention premia was also material. There was evidence of a local shortage of craftspersons, but no evidence of a national shortage of supervisors. The fact that supervisors performed some craft work did not establish that their posts attracted the premium.
5. The equal pay background reinforced the need for evidence explaining why a premium for predominantly male workers was objectively justified, including evidence of national recruitment pressures for supervisors. It did not justify disregarding the agreement’s language or supplying an omitted category.
6. Although the issue was finely balanced, the appellate court was slow to differ from the informed assessment of the specialist employment tribunal members on the contextual evidence. Lords Justice Richards and Rimer agreed with Lord Justice Mummery.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 264: appeal dismissed; no error of law in the Employment Tribunal’s construction.
• Employment Appeal Tribunal — UKEAT/0483/08/RN: upheld the Employment Tribunal’s majority decision.
• Employment Tribunal — judgment sent on 22 July 2008: dismissed the claims by a lay-member majority; the Employment Judge dissented.