Grainger v North East London NHS Foundation Trust

Terms in collectively agreed employment documents are incorporated only where they are apt for contractual incorporation. In assessing aptitude, relevant considerations include the provision’s importance to the employment relationship, level of detail, certainty, context and workability.

Where the contractual NHS job-evaluation provisions applied, a re-evaluation was required if the employee requested one and the job had changed significantly, or the employee and manager agreed that its demands had changed significantly. A change was significant only if it could produce a sufficient increase in the job-evaluation score to move the job into another pay band. Additional duties which could not achieve that result did not trigger the contractual obligation.

The claimant, a consultant child psychotherapist employed by the defendant NHS Trust, was paid in band 8C. She alleged that additional trust-wide leadership and management responsibilities had significantly changed her job and that the defendant was contractually obliged to arrange a job evaluation under the NHS Terms and Conditions of Service Handbook, the NHS Job Evaluation Handbook and the defendant’s HR Handbook.

The claim concerned alleged breaches arising principally from grading-review requests made in 2010 and 2013. The court had to determine which provisions had contractual effect, whether the claimant’s duties had changed significantly, and whether the change could have resulted in re-banding to 8D. The trial concerned liability only.

1. The claim was dismissed. The defendant was not in breach of contract.

2. Terms in collectively negotiated documents are incorporated only if they are apt for incorporation. Relevant considerations include the provision’s importance to the contractual relationship, its level of detail and certainty, its context, and whether it is workable. Pay provisions are more naturally contractual than detailed procedural guidance.

3. The relevant provisions of the NHS Job Evaluation Handbook were incorporated into the claimant’s contract. Although parts were described as guidance, other provisions were mandatory, essential or binding on local panels. On their proper construction, if the claimant requested a job evaluation, the defendant had to arrange one where either her job had changed significantly or she and her manager agreed that its demands had changed significantly. It was unnecessary to decide whether a request was always required.

4. “Significant” change had to be assessed by reference to the evaluation scheme and the existing weighting score. A change was significant only if it could increase the score sufficiently to move the job into a different band. Certainty of re-banding was unnecessary, but a mere possibility of some increase was insufficient.

5. The claimant had acquired additional trust-wide management, appraisal, job-planning, recruitment, representation and policy responsibilities. Those duties formed part of her job for evaluation purposes. Comparisons with other posts were not a substitute for evaluating the job against the scheme’s factors.

6. The changes could have increased the score by no more than 22 points, through factors 7 and 9. The resulting score of 673 remained within band 8C, below the threshold of 675 for band 8D. The job therefore had not changed significantly and no contractual re-evaluation was required.

7. The court expressed the view, obiter, that the claimant’s conduct would not have amounted to waiver in light of the defendant’s uncertainty and delays, but it was unnecessary to decide waiver.