George v The Ministry of Justice

A collective agreement is ordinarily an undertaking binding in honour, not an enforceable contract. Its terms can become part of an individual employment contract only where the employer and employee intended that result; the agreement’s existence alone is insufficient. The particular provision must also be apt for individual enforcement. Frameworks, guidelines and aspirations dependent on local arrangements or operational needs will generally lack that quality. Custom and practice may incorporate a general entitlement to additional hours and time off in lieu without incorporating a separate target or long-stop for repayment. A purported obligation to provide time off within five weeks, even when operationally impossible, was not contractually enforceable.

Thomas George, a prison officer, claimed that the Ministry of Justice had breached his contract by failing to provide time off in lieu within five weeks of additional hours worked. The Liverpool County Court dismissed the claim.

The judge found that the requirement to work additional hours and the corresponding entitlement to time off in lieu had become contractual through custom and practice. He found, however, that the five-week long-stop in Bulletin 8 had not become an absolute contractual right. The appeal concerned express or implied incorporation of Bulletin 8, and whether its paragraph 23 sentence was apt for individual enforcement.

The Court of Appeal, with Lord Justice Rimer giving the judgment and Lord Justices Jackson and Maurice Kay agreeing, dismissed the appeal.

1. At common law, collective agreements are ordinarily not legally enforceable. The Trade Union and Labour Relations (Consolidation) Act 1992 provides a statutory framework under which collective agreements are presumed not to be legally enforceable unless the statutory conditions for enforceability are met. This did not prevent particular terms from being incorporated into individual employment contracts.
2. The relevant question was the contractual intention of the employer and employee. That intention had to be ascertained from the employment contract and other available material, including the collective agreement. Even express incorporation required consideration of whether the particular provision was apt to operate as an individual contractual obligation. The approach in Alexander and others v. Standard Telephones & Cables Ltd [1991] IRLR 286 had been approved and applied in Kaur v. MG Rover Group Ltd [2005] ICR 625 and Malone and others v. British Airways plc [2011] ICR 125.
3. The judge was entitled to find that custom and practice had incorporated the requirement to work additional hours and the corresponding entitlement to repayment by time off in lieu. He was also entitled to find that the evidence did not establish the five-week period as an absolute contractual long-stop rather than a target or guidance. That finding had not been challenged on appeal.
4. In any event, the relevant provisions of Bulletin 8 were not apt for individual enforcement. Bulletin 8 presented a framework of general principles, advice and guidelines for local arrangements. It used aspirational language and preserved operational flexibility. The paragraph 23 sentence was not an enforceable contractual island within that wider scheme.
5. The court rejected an interpretation requiring time off in lieu within five weeks even where it was not operationally possible. That interpretation left important questions unanswered, including how limited available time off should be allocated among competing officers. It also conflicted with provisions making timing consensual where possible and recognising clear operational emergencies. The five-week provision was therefore guidance, not an individually enforceable contractual term.

• Court of Appeal (Civil Division) — In [2013] EWCA Civ 324, the court dismissed the appeal.
• Liverpool County Court — His Honour Judge Graham Wood QC dismissed the breach of contract claim on 3 February 2012.