Simpson v London Borough Of Hackney & Ors (Contract of Employment : Damages for breach of contract)

A collective agreement may be incorporated into an individual contract only to the extent that its particular terms are apt for contractual enforcement. A contractual signpost to job evaluation does not make non-binding joint advice enforceable. A provision entitling an employee to seek reconsideration of grading gives a right to reconsideration, not a free-standing contractual right to a job evaluation.

Where a locally agreed and incorporated job-evaluation process provides that a revised job description takes effect from the employee’s request for re-evaluation, a successful re-grading is backdated to an earlier unresolved request. An oral request may suffice where the contractual arrangements in force when it was made imposed no written-request requirement.

The claimant, a bilingual teaching assistant, sought reconsideration of her grading in 2005. No substantive action was taken until her role was evaluated in December 2008 and placed on grade 6, with payment from January 2009.

An Employment Judge dismissed claims for unlawful deductions from wages and breach of contract. The claimant appealed, contending that the contractual materials gave her an enforceable right to job evaluation and to back pay. The respondents lodged a contingent cross-appeal based on the school staffing regulations.

The central issues were whether the national collective agreements created an enforceable right to job evaluation and whether the locally agreed Hackney Process required the successful re-grading to be backdated.

1. Appeal allowed in part. The Employment Judge was correct to reject the alleged contractual right to a job evaluation. Although collective terms can be incorporated where apt, the detailed job-evaluation procedures in the Green Book and Gold Book were contained in their joint-advice sections. They were not made contractually enforceable merely by the employment contract’s references to job evaluation. The binding national provision gave an employee a right to seek reconsideration of grading, not an enforceable right to require a job evaluation.

2. The Employment Judge erred in rejecting back pay. The Hackney Process was the operative local collective agreement on implementation. Clause 10.2 provided that a revised job description took effect when the employee or manager submitted the request for re-evaluation. Its implementation provisions governed a successful reconsideration that resulted in re-grading.

3. The claimant’s oral request in February 2005 was sufficient. The later Hackney Process required a written request, but it was not in force when that request was made, and the preceding right to reconsideration imposed no writing requirement. Since the claimant’s duties had not changed and the eventual evaluation established grade 6, her grade-6 pay was to be backdated to February 2005. The intervening move to grade 3 did not satisfy her unresolved claim.

4. The school staffing regulations did not permit the respondents to avoid that contractual result. Regulation 15(3) required the grade to be one on the authority’s applicable scale; following the evaluation, the applicable grade was grade 6. The public-law relationship between the school and authority did not displace the employee’s contractual entitlement.

5. The question whether any unlawful-deduction claim was time-barred, including issues concerning increments, remained open and was remitted to the Employment Tribunal if the parties could not agree it.

• Employment Appeal Tribunal: allowed the claimant’s appeal in part. It upheld dismissal of the contractual job-evaluation claim, but held that grade-6 pay was backdated to February 2005. The remaining unlawful-deduction time issue was remitted if not agreed.

• Employment Tribunal, London Central: Employment Judge Henderson dismissed the claims for unlawful deductions under Part II of the Employment Rights Act 1996 and breach of contract under the Employment Tribunals Extension of Jurisdiction Order 1994.