Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 216_07IT, [2008] NIIT 216_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 216/07 and 880/07

CLAIMANTS: 1. Brian Williams

2. Claire Foley

RESPONDENT: Department of Environment

(Environment and Heritage) Service

DECISION

The decision of the tribunal is:

(1) that the claimants were not working under fixed term contracts and so Regulation 8 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 do not apply; and

(2) that the claimants have not suffered any unlawful deductions from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 by reason of any breach of contract for the reasons set out in the body of this decision.

Constitution of tribunal

Chairman: Miss E McCaffrey

Panel Members: Dr V Eakin

Mr R Gunn

Appearances:

The claimants were represented by Mr Eamon McArdle Employment Consultant, instructed by Jones & Cassidy Solicitors.

The respondents were represented by Mr Martin Wolfe BL, instructed by the Departmental Solicitor's Office.

The Issues

.1 At the outset of the case, the claimants' representative drew the tribunal's attention to a document, Circular 16/88 issued by the DoE, which had only just been provided to them by the respondent and sought an amendment of the Claim Form. Following discussions with the respondent, the parties agreed and we consent to amend both claimants' claim forms to include the following sentence:

"For avoidance of doubt and in light of NICS Circular 16/88 that has come to light and been confirmed by the respondent to be still in force, the claimants wish to place additional reliance on this Circular for their claim they were contractually entitled to be confirmed in post."

.2 There were a number of issues for the tribunal to decide which we have identified as follows:-

1. Were the claimants or either of them working under fixed term contracts?

and

2. If the employees were fixed term employees, were they then entitled to be treated as permanent employees under the provisions of Regulation 8 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.

3. Have the claimants suffered an unlawful deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 by reason of any breach of contract whether described as:

(a) a failure to appoint them to the grade of curatorial Grade C following the conduct of a Job Evaluation and Grading System (JEGS) Evaluation Scheme; or

(b) a failure to appoint them to the substantive grade of curatorial Grade C by applying the "through grading" provisions of circular 16/88; or

(c) if, as the claimants argue, they have acquired the right to carry out duties at Curatorial Grade C and to be graded at curatorial Grade C by virtue of the fact that they carried out Grade C duties over a long period of time, then it is alleged that the respondents breached the contract of employment with the claimants by "demoting" them to curatorial Grade D in October 2006 by noting Grade C duties between the claimants and a Grade D colleague.

The Facts

.1 The tribunal received witness statements and heard evidence from the claimants, Miss Foley and Doctor Williams, to whom we refer individually in this decision by name for ease of reference. We also heard evidence from Mr Bannon, a NIPSA official, on behalf of the claimants and from Miss Harrison (Director of Personnel), Mr Campbell, Mr Brannon and Mr Coulter on behalf of the respondent. In addition, a substantial number of documents were produced to the tribunal, which we have taken into account (where relevant) in reaching our decision. This is a case where there is little dispute as to the facts, but the interpretation and construction put on those facts is at issue between the parties. We set out the facts found as succinctly as possible.

.2 The claimants are both permanent employees of the Respondent. Dr Williams took up employment with the respondent as an Assistant Inspector in 1972 and Miss Foley took up employment with the respondent as Assistant Inspector in 1975. Dr Williams was promoted to Senior Inspector in 1978 by through grading and Miss Foley equally was also appointed as Senior Inspector on 24 February 1978, also by through grading.

.3 In 1994 there was a regrading procedure and as a result of that both claimants were advised that they would be regraded as curatorial grade D and assimilated on to the Grade D band. However they were unhappy with this and, along with a number of colleagues, disputed their grading. The result of this was that the claimants, with a number of other colleagues, were classified as Grade D+4 in 1994 on a "personal to holder" basis, with effect from 1 August 1989. Their status was clearly expressed in written documents forwarded to them by the respondent.

.4 It was not disputed by the parties that in the 1990's, over a period of time, both the claimants took on responsibilities which might be considered to be at a higher grade than curatorial Grade D. Both claimants were dissatisfied with the grading of their posts and both had applied for a JEGS ("Job Evaluation and Grading Support") analysis to be carried out. We refer in more detail to this system of Job Evaluation below. In Doctor Williams' case the result of his first JEGS analysis was known in or about April 1999 and he was advised at that time that his post was correctly graded. A further evaluation was conducted and in correspondence dated 12 January 2000, it was agreed that his post should be regarded as curatorial Grade C. As a result of this Doctor Williams was offered a temporary promotion for the period from 1 February 1999 to 1 March 2002. This provided Doctor Williams with pay at the higher grade backdated to 1 February 1999 in recognition of the fact that he had been carrying out Grade C duties and he was also provided with a temporary promotion at normal pay rates for Grade C.

.5 In Miss Foley's case she sought an evaluation of her post in 1999. In or about February 2000 she was advised that her senior inspector post remained at curatorial Grade D. She sought a further evaluation and on the 14 August 2002 it was confirmed that her post was a curatorial Grade C post. As a result of the findings of the JEGS evaluation, on 28 August 2002 Miss Foley was offered and accepted a deputising allowance with effect from 14 August 2002 to 31 October 2002. This deputising allowance was extended and finally converted into a temporary promotion arrangement with effect from 14 August 2003.

6 Both Doctor Williams and Miss Foley received a number of letters from the respondent confirming extensions of the temporary promotion/deputising allowances, which were issued approximately every three months and had the effect of extending the periods of temporary promotion for each of them up to 31 August 2006. When receiving a deputising allowance, the claimants did not receive pay at the higher rate while on Annual, special or sick leave. Both the claimants received compensation in the form of back pay. The correspondence sent to them to confirm extensions of their temporary promotions always referred to the temporary nature of the promotion. It was in the form of memos which read:

"Temporary Promotion Allowance

"I am writing to confirm that the temporary promotion allowance you have been receiving did not cease on (relevant date) but has been extended to (relevant date) inclusive at which time the position will be reviewed.

"You may wish to note that temporary promotion allowances are payable on occasions of sick leave, annual or special leave.

"Please note that should this arrangement cease prematurely, this unit must be informed by your line manager on or immediately before the first day on which you cease to perform the duties of the higher grade, in order to avoid an over payment situation."

7 From the spring of 2005, the letters sent to each of the claimants included a sentence which read:

"This temporary promotion does not confer any right to substantive promotion."

8 It is relevant at this point to consider the role of the JEGS evaluation scheme for the posts. "JEGS" is an acronym for the Job Evaluation and Grading Support system which is applied by the Civil Service throughout the United Kingdom. The written guide to the JEGS system states that:

"The aim of job evaluation is to provide a systematic, fair and consistent means of measuring the relative value of jobs in an organisation. Job evaluation measures jobs not job holders. It does not measure performance or loading i.e. the volume of work or determine pay."

.9 The way that the JEGS system is applied seems to have led to a certain amount of confusion. Miss Foley's evidence to the tribunal was that she assumed the outcome of her grading challenge would either be to agree that the duties she carried out commanded a higher grade and hence rate of pay (that is, she would be upgraded) or to confirm the duties she carried out did not warrant a higher grade. From the evidence given by other witnesses, including the trade union representative who appeared in support of the claimants, this appears to be incorrect. Beverley Harrison's evidence to the tribunal was that at the conclusion of the JEGS review a report is presented to management for consideration. Management considers the recommendations and has the opportunity to further clarify matters but "ultimately management can decide whether to accept the findings or otherwise." She went on to say that if the role was deemed to be a higher grade, then the individual could not simply be transferred into the new role. The grade of the post attaches to the duties carried out and therefore to the role, rather than to the individual. She took the view that individuals could not be promoted to a higher grade by virtue of the role they perform as this would be neither fair nor equitable. She referred to the Northern Ireland Civil Service code which states that:

"It is the policy of NICS that all eligible persons shall have equal opportunity for employment and advancement in NICS on the basis of their ability, qualifications and aptitude for work" (paragraph 2141).

She suggested that it was contrary to the principles of fair and open competition and appointment in accordance with the NICS merit principle for an individual to receive an automatic promotion because their post was deemed to be of a higher grade than their own grade. She pointed out that to do so would have the potential to breach equality and anti-discrimination legislation as it was likely that there would be a number of other individuals who, given the opportunity, could competently perform the duties of the role. She referred to email correspondence between the respondent and the Trade Union side representatives following the conclusion of the JEGS review relating to the Claimants. That correspondence was produced to the Tribunal and it did indeed refer to a discussion about the proposed methodology for filling the posts.

.10 Mr Bannon, the NIPSA representative, broadly agreed with the statements made by Ms Harrison on the application of JEGS. He pointed out that as a result of a JEGS evaluation, a post holder could be transferred to an alternative post in his existing substantive grade and the vacancy so created would then be filled by the transfer of a person at a higher grade or by competition or from a promotion list as appropriate. He went on to say that there could be situations where the union would argue for an individual who had been carrying out duties at the higher grade over a lengthy period of time to be "slotted in" to the higher grade. He made reference in his evidence to the fact that curatorial grade structure under which the claimants were employed included provision for "straight through" or "fluid" grading i.e. an individual could be upgraded without competition, provided he or she would be undertaking duties and responsibilities commensurate with the higher grade. He indicated that he would expect this aspect to have been fully taken into account in addressing the outcome of a JEGS evaluation for staff and grades subject to fluid grading, "again subject to equality considerations". We consider the question of "through grading" in more detail below at paras 2.22-2.25. He went on to say that "It is acknowledged by NIPSA that the normal Northern Ireland Civil Service practice is, where a JEGS evaluation results in a post being upgraded, the post holder is not guaranteed substantive upgrading. However as the JEGS evaluation scheme is not agreed under collective bargaining and the NICS generally appoint staff to grade and not to post, only a very small percentage of posts have been subject to a JEGS job evaluation process". We accept the evidence given on this issue by Ms Harrison and Mr Bannon and as a result we find that the claimants had no right to automatic promotion as a result of the JEGS evaluation in their favour.

.11 The issues regarding the claimants' grading must be considered against the background of a structural review which was being conducted into the Environment and Heritage Service at this time. From the evidence given, this had started in the late 1990's and was not ultimately concluded until 2005/2006 which seems an extraordinarily long time, even for the Civil Service. One of the issues considered as part of this review was the number of posts which should exist at each of the curatorial grades and significantly, as far as the claimants were concerned, the number of Grade C posts. This is of particular relevance in considering why the claimants apparently acquiesced for so long in accepting temporary promotions, rather than pressing for their temporary promotions to be made permanent. When Miss Foley was asked why she had not raised the issue as to why her post had not been made permanent, she indicated that she was aware that there was a review ongoing and that she had assumed that she might obtain a Grade C post as part of that review. Dr Williams agreed that he had never been given any documents which confirmed that he was appointed at Grade C on a permanent basis but said that he had been given a verbal indication that in the restructuring, it was likely that he would be appointed to a Grade C. He indicated that this had happened during a private conversation in January 2003 with Richard Rogers and therefore he was fairly relaxed about the prospects of a Grade C post. He agreed that this was not a written contract but merely a verbal indication and was given to him as a sort of "comfort gesture" by Mr Rogers, given that Doctor Williams had at that stage not been appointed to another Grade C post for which he had applied.

.12 Mr Nick Brannon was Director of Built Heritage in the Environment and Heritage Service between February 1999 and August 2002 when the JEGS analyses for the claimants' posts were ongoing and had just been reported. He was the Director to whom both the claimants reported and had supported their applications for a JEGS evaluation of their respective posts. He sent an email to another senior member of staff, Ian Gibson, on 19 August 2002 noting that he confirmed that the curatorial Grade C posts occupied by Doctor Williams and Miss Foley met business needs and that he would like to make the posts substantive. He went on to say that "there was a DRC risk but I would be confident that adverts/trawls based on these JDs (Job Description) would be filled by those currently occupying them". He also advised that Miss Foley should be put into "acting" mode. Subsequent to that, he resigned from his position as Director at the end of August 2002 and had no further involvement in the matter. However he noted that the posts occupied by Miss Foley and Doctor Williams had not been substantive Grade C posts, but needed to be made substantive and also noted that the posts would in due course require to be competed for. In his statement, he said that he was confident that "Doctor Williams and Miss Foley would be front runners in such competition, if they entered". He also commented in his statement that "I made no assumption that, were they to be unsuccessful, they would be entitled to salaried employment appropriate to anything other than their pre-"temporary" status."

.13 Perhaps it is relevant at this point to consider the structure and numbers of posts at each grade within the Built Heritage Directorate in which both the claimants worked at the relevant times. In 1999, the Director was Mr Brannon and there were two Grade C posts: one was occupied by Doctor Chris Lynn, the other was vacant. At that time there were five posts at Grade D. One was occupied by Doctor Williams, one by Miss Foley and one by Marion Meek who subsequently retired on medical grounds on 24 June 2003. A fourth post was vacant and the fifth was occupied by a man named Ken Neill.

.14 By 2003, Michael Coulter was Director of Built Heritage, Chris Lynn was still in a Grade C post but later retired on 26 April 2006 and there was still a vacancy for the other Grade C post. At Grade D, the two claimants were still in post as was Mr Neill and the other two Grade D posts had still not been filled.

.15 The claimants were still in receipt of allowances for temporary promotions in recognition of the additional duties they had been doing. Mr Neill had applied for a JEGS evaluation of his post and was advised that it was still a Grade D post.

.16 By 2006 the structural review was at long last complete and the new structure was to be introduced with effect from October 2006. There were to be two substantive Grade C posts in the new structure, with new job descriptions and it was proposed that these posts would be filled by open competition. In April 2006 Mr Coulter had asked Claire Foley and Brian Wilson to undertake some additional curatorial Grade C duties on a temporary basis following Doctor Chris Lynn's retirement. This was within the structure which he had inherited on taking up the post of Director. In the same month he contacted Mr Campbell, Director of Corporate Services in the Environment and Heritage Service, to seek his views on rotation of temporary promotion among the three Grade D+4 post holders - the two claimants and Mr Neill. He believed that all three current post holders would be eligible to apply for the Grade C posts, were equally graded in their substantive posts and that Mr Neill could be disadvantaged and subject to inequitable treatment unless he was given the opportunity to act up in the same way as the claimants.

.17 Mr Campbell sent an email to Mr Coulter on 14 April suggesting that it would be preferable if Doctor Williams and Miss Foley agree to share temporary promotion on a rotational basis with Mr Neill, but that if this was not possible or practicable then redistribution of duties to Doctor Williams and Miss Foley was sensible and defensible. Mr Coulter decided to introduce rotational acting up amongst the three substantive Grade D+4 post holders with effect from October 2006. Later in October 2006, the claimants raised a grievance with Mr Coulter in relation to the way that he had dealt with rotation of acting up in the Grade C posts.

.18 The claimants both argued that they were permanent Grade C's because of the fact that they had carried out their duties for such a long period of time. Mr Coulter gave evidence that he did not understand how this could be the case. He noted from a record of a meeting with Claire Foley in March 2003 that there would be a recruitment competition for the Grade C posts even though at that stage she was "acting up" in a Grade C post. Again, when the new structure was being considered in 2006, Mr Coulter referred to a discussion he had had with Claire Foley and Brian Williams about the sequencing of competitions for various posts. He also noted that the memos sent to both the claimants at regular intervals during the period of their acting up made it clear that their promotion was temporary.

.19 Both the claimants issued a grievance in September 2006 raising concerns about the proposal to rotate the acting up arrangements in the Built Heritage Directorate. They argued that Mr Coulter would breach their statutory rights under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 by failing to convert the continuous period of temporary "acting up" which had lasted for more than 4 years, into a permanent contractual arrangement; and that Mr Coulter had failed to confirm that the claimants' pay would not be affected by the introduction of acting up on rotation.

.20 Mr Campbell dealt with the grievance and issued a decision in respect of that grievance on 1 November 2006 which was contrary to the claimants' views. There was an appeal lodged by the claimants to the Chief Executive of the Heritage Service and subsequently to the Permanent Secretary of the Department of Environment but the grievances were not upheld.

.21 Mr Williams and Miss Foley again wrote to Mr Campbell on 31 January 2007, referring to an intention to advertise for two curatorial Grade C posts and asking him to reconsider this decision on the basis that they were substantive holders of these posts. Mr Campbell replied to this request in the negative. Both the claimants applied for the Grade C posts. Dr Williams was successful and was appointed to a Grade C post with effect from early 2007. Miss Foley was unsuccessful and as a result reverted to her Grade D+4 status from February 2007. As a result she is at a continuing loss in respect of both salary and potential pension benefits. She also described to the tribunal that she had felt distressed and upset by virtue of the fact that a colleague who had previously been at a Grade E post (although acting up to Grade D) had been successful in being appointed to the Grade C post. She felt that she was, in her own words, "completely humiliated", had lost esteem and authority and felt that she had been side lined.

.22 NICS Circular 16/88 on the restructuring of Museum Grades was issued on 4 March 1988, but the claimants were unaware of it until it was produced to their representatives immediately before the hearing of this case. While we accept that, we also accept the evidence of the respondent's witnesses that the circular would have been circulated around all affected staff when it was issued. It is perhaps not surprising that the claimants were not familiar with the document which was issued almost 20 years before they sought to rely on it.

.23 It was confirmed by the respondent's witnesses that Circular 16/88 is still current and that it is a contractual document, in that it forms part of the terms and conditions of employment of the staff to whom it applies. The circular provided for the staff previously graded as Assistant Keeper I (which included the claimants) to be regraded as Curatorial Grade C (Grade7) and Grade D (para.2). Later on at para 5.3, there is provision for "straight-through grading" from Grade D to Grade C on the basis of 3 years' seniority and recommendation. The claimants believed on this basis that they should have benefited from straight-through grading to be promoted to Grade C on a permanent basis when they became eligible for the promotion on the basis of their seniority. They argued that the failure of the respondents to make them aware of Circular 16/88 meant the claimants had lost out and could not use the provisions of the Circular to press for through grading. Ms Harrison's evidence was that she was aware of the contents of Circular 16/88 and had considered whether it applied to the Claimants' case, but was of the view that it did it not apply and so did not draw it to their attention, or to the attention of Mr Campbell, her boss.

.24 While there is no dispute that the claimants had the necessary seniority and also were fitted for promotion, in that both had excellent annual appraisals over a number of years (both at their substantive grades and at their acting up Grades), the respondent argued that the Circular must be read in conjunction with the NICS Code and in particular para 2151, which reads as follows:-

"Where promotions are made other than by the Board procedure, for example when straight through grading/ fluid grading under special complementing arrangements applies, amongst the criteria to be satisfied for promotion will be fitness to perform the duties of the promotion grade and the availability of work at the higher level."

.25 The question of availability of work at the higher level demanded consideration not of whether the claimants were actually doing work at the higher grade, as shown by the report of the JEGS evaluation, but whether there was a substantive post available at the higher grade to which the eligible person could be appointed by straight through grading. As set out at para 2.12 above, between 1999 and 2006, which is the period relevant to this case, there were only two substantive Grade C posts approved and up until the retirement of Dr Lynn in 2006, there was only one post available. Even if only the two claimants were eligible for through grading, there was only one job and so the merit principle applied by NICS meant there would have to be a competition to decide who should be appointed.

The Relevant Law

.1 The relevant law in relation to these issues can be conveniently divided into two areas, one which we will refer to as "the fixed term employees" issues and the others which relate to the "breach of contract and alleged unlawful deduction from wages" issues.

(1) Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002

These regulations (referred to in this decision as "The Fixed Term Employees Regulations") were introduced to give effect to the relevant provisions of the Framework Agreement, Council Directive 1999 EC (OJ175/43, 10^th July 1999. There is little case law in relation to the application of the Fixed Term Employees Regulations at present. However the preamble to the Directive makes it clear that it is intended to give effect to the Framework Agreement on fixed term work such as open ended contracts, fixed term contracts, part time working, temporary work and seasonal work (see para. 3 of the Preamble). In the case of Adeneler & Others –v- Ellinikos Organismos Galaktos (ECR) [2006] IRLR 716 the European Court of Justice gave some guidance in relation to the application of the Framework Agreement. At paragraph 64 of its judgment the European Court of Justice states as follows: "Of course the Framework Agreement and by extension Directive 1999/70 are not intended primarily to obstruct the conclusion of individual fixed term employment relationships; on the contrary they are focused above all on the possibility for pursuing abusive practices by concluding such contracts in succession (successive employment relationships) as well as on improving the quality of such fixed term employment relationships. In particular where a number of fixed term employment relationships have been concluded in succession there is a danger that the employment relationship of indefinite duration, the employment relationship modelled defined by management labour, will be circumvented thus giving rise to the problem of abuse".

The Fixed Term Employees Regulations include the following definitions;-

"Regulation 1(1) "fixed- term contract" means a contract of employment that, under its provisions determining how it will terminate in the normal course, will terminate –

(a) On the expiry of a fixed term, on the completion of a particular task or

(b) On the occurrence or non-occurrence of any other specific event other than the attainment by the employee of any normal, bona fide retiring age in the establishment for an employee holding the position held by him,

and any reference to "fixed- term" shall be construed accordingly;

"fixed -term employee" means an employee who is employed under a fixed -term contract;

"permanent employee" means an employee who is not employed under a fixed - term contract, and any reference to permanent employment shall be construed accordingly.

.2 Regulation 8 of the Fixed-Term Employees Regulations provides where an employee is employed under a contract purporting to be a fixed term contract and has been employed under successive contracts for 4 years or more, then he or she shall be a permanent employee unless his or her employment on a fixed term contract is justified on objective grounds.

.3 Regulation 9 allows an employee who considers that he is to be regarded by virtue of Regulation 8 as a permanent employee to request in writing from his employer a written statement, confirming that the contract is to be so regarded and he is entitled to be provided with such a statement within 21 days of his request or alternatively a statement giving reasons as to why his contract remains fixed term.

.4 In the case of McCauley -v- Northern Ireland Housing Executive (Case Reference No 2480/06), the tribunal had to consider the situation where the claimant had been seconded to a higher level post initially for a period of two years but this secondment was in fact renewed annually over a further five years. On each occasion, his letter of appointment indicated that

"You will be required to relinquish your current post and future placement will be determined at the two year renewal period".

.5 The finding of the tribunal in that case was that it did not have jurisdiction to deal with the claim since the claimant was not a fixed term employee, but was employed on a permanent contract with his employer which commenced when he was first engaged in 1980 and would continue into the future after the end of his secondment. It is relevant to note at this stage that both the claimants' and the respondent's representatives argued that the McCauley case supported their particular submissions. The claimants' representative argued that there was no temporary promotion in this case in the conventional sense for a fixed period. This however seems contrary to the documentary evidence adduced in that letters were issued to both claimants at regular intervals confirming the position in relation to their employment namely that they were acting up, or temporarily promoted and a number of the letters specifically indicated that a temporary promotion did not carry any right to a permanent promotion. The respondent's representative indicated that in their view, the Fixed-term Employee Regulations did not apply to the circumstances of the claimants' employment because they were permanent employees and were not employed on fixed term contracts. The respondent argued that an employee could not be both a permanent employee, (and there was no argument that the claimants were indeed permanent employees of Northern Ireland Civil Service) and a recipient of a fixed term contract within the definition set out in the Fixed -Term Employee Regulations, since the definitions as set out above are mutually exclusive.

.6 Breach of contract and unlawful deductions from wages.

The relevant law in relation to these issues is to be found in Article 45 of the Employment Rights Order (Northern Ireland) 1996 and states as follows:-

"(1) An employer shall not make a deduction from wages for workers employed by him unless – (a) the deduction is required or authorised to be made by virtue of statutory provision or relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) in this Article "relevant provision" in relation to a worker's contract means a provision of the contract comprised

(a) in one or more in terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making a deduction in question, or

(b) in one or more terms of the contract (whether express or implied and if expressed, whether oral or in writing) the existence and effect or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion…"

.7 The claimants' case hinges on their being able to demonstrate a contractual entitlement to payment at the level of curatorial grade C once the temporary promotions were ended. They argue that they were entitled to be appointed to the grade of curatorial Grade C following the JEGS review or, in the alternative, that the respondent breached their contract of employment by failing to appoint them to curatorial Grade C by applying the "through grading" provisions of circular 16/88. It has also been agued that the failure of the respondent to provide the claimants with a copy of NICS 16/88 earlier was a breach of the employer's implied duty to take steps to make the claimants aware of a contractual entitlement of which they might have availed, namely the right to press for through grading (Scally and others v Southern Health and Social Services Board, HL, [1991] IRLR 522)

.8 Further, it was argued that because of the fact that the claimants continued in an "acting up" position for a very lengthy period of time following the JEGS evaluation, they acquired an implied contractual right to carry out duties at Grade C and therefore were entitled to be graded at that grade. Accordingly the claimants argue that the decision of Mr Coulter in October 2006 to rotate Grade C duties amongst the claimants and Mr Neill constituted a breach of their contract of employment. Their argument is that the respondent, in allowing the claimants to continue carrying out Grade C duties, effectively implied into the claimant's contracts the right to continue carrying out Grade C duties, be graded on that grade and be paid accordingly.

.9 It is therefore relevant to consider the law relating to implied contract terms. The tribunal has considered the provisions of Chitty on Contracts, 29^th edition, chapter 13, where it is made clear that for a term to be implied into a contract, the court must first of all consider whether or not it is necessary to give efficacy to the contract and secondly, whether the term implied represents the obvious, but unexpressed, intention of the parties (see para 13-004). Chitty makes it clear that a term is not to be implied into a contract unless it is in all circumstances equitable and reasonable, but this does not mean that a term will be implied merely because in all circumstances it would be reasonable to do so or because it would improve the contract or making its carrying out more convenient. Reference is made to the judgment in Liverpool City Council –v- Irwin which states that "the touchstone is always necessity and not merely reasonableness". The authorities also indicate that a term will not be implied if it would be inconsistent with the express wording of the contract (see Chitty on Contracts 29^th Edition, chapter 13 – 009). The tribunal has also considered the decision in the case of Henry –v- London General Transport Services Limited [2001] IRLR 132 where the Employment Appeal Tribunal held that for a term to be incorporated into a contract of employment by way of custom and practice, the custom and practice so relied on must be reasonable, certain and notorious. The EAT took the view that "once the reasonableness, certainty and notoriety of the custom and practice is sufficiently proven, it must be presumed that the term thus supported represents the wishes and intention of all relevant parties. It is no disproof of the efficacy of custom and practice in relation to its ability to cause the incorporation of a term of contract that not all the parties understood or expected that it would have that effect". The court also indicated that the burden of proof was on the party seeking to rely on the consequence and incorporation of the term into the contract.

Decision

.1 The tribunal has carefully considered all of the arguments which have been made in relation to the various arguments made before it.

.2 Turning first to the question of whether the claimants are entitled to protection of the Fixed Term Employees Regulations, it is the view of the tribunal that the employees are permanent employees of the Northern Ireland Civil Service and as such were not employed under fixed-term contracts. Both the claimants commenced employment with the respondent in the 1970s; Doctor Williams commenced employment as an Assistant Inspector in 1972 and Miss Foley commenced employment in 1975. Their employment continues to this day, and will continue into the future. It was not terminated by the end of the temporary promotion arrangements which were made by the respondent and the nature of those arrangements is clear from the correspondence which passed between the claimants and the respondent in relation to their "acting up" and temporary promotions. The letters sent to each claimant were generally in the form of a memo which had a wording as follows: -

"Temporary Promotion Allowance.

"I am writing to confirm that the temporary promotion allowance you had been receiving did not cease on (relevant date) but has been extended to relevant date) inclusive at which time the position will be reviewed.

"You may wish to note that temporary promotional allowances are payable on occasions of sick absence, annual or special leave.

"Please note that should this arrangement cease prematurely, this unit must be informed by your line manager on or immediately before the first day and which cease to perform the duties of the higher grade, in order to avoid an overpayment situation."

.3 The memo sent to Miss Foley in March 2005 and the subsequent memos sent to each of the claimants had the additional sentence

"This temporary promotion does not confer any rights to substantive promotion".

4 It is clear therefore that on each occasion that the letter was sent and the claimants were advised that the situation was temporary and that it would not extend indefinitely, although the tribunal can fully understand the claimants' frustration at being left in this unsatisfactory position for such a prolonged period of time. At the end of their temporary, although extended, promotion both claimants would revert to their original substantive grade. The claimants' representative argued that the Fixed-term Employee regulations did not preclude a permanent employee being a fixed-term employee: we do not agree. On reading the definitions in the Regulations, it is clear that "fixed-term employee" and "permanent employee" are defined in such a way that a permanent employee cannot be a fixed-term employee (see above, para.3.1). The claimants are permanent employees of the NICS and as such cannot benefit from the Fixed-term Employees Regulations. Accordingly, they cannot rely on Regulation 8 of those Regulations to be treated as permanently graded at Curatorial Grade C.

5 Turning to the breach of contract claims, we emphasise that to succeed in any of these claims, the claimants must show a contractual entitlement to the promotion to Grade C, in order to ground a claim for unlawful deductions of wages under Art. 45 of the Employment Rights (NI) Order 1996.

6 The claimants argued that they were entitled be upgraded to Curatorial Grade C as a result of the JEGS evaluation, while the respondents relied on the evidence given by Ms Harrison and Mr Bannon, that there was no automatic right to upgrading. We agree that the claimants appear to have been given little or no guidance as to the process of a JEGS evaluation or its possible outcomes. We also believe that there was an onus on the respondent, whose job evaluation scheme JEGS is, to provide proper information to its staff as to the process and its possible outcomes : the respondent's failure to do so in this case led to, at best, confusion and at worst , misplaced expectations of promotion. However we also accept the evidence given by both Ms Harrison and Mr Bannon, that management could consider the report of the JEGs evaluation and decide whether to move the post holder to a job appropriate to their grade, upgrade them or indeed, to appeal the report. It is a matter for management to decide upon the need for any particular number of posts and the grading of those posts.

7 Even after the JEGS report, the correspondence between Nick Brannon and other colleagues and between the respondent and the union referred to the need for the claimants' work at Grade C to be made into substantive posts. In meetings with the claimants on the issue, they did not demur from the suggestion that a competition would have to be held, and they would have to apply for the jobs if the posts were made substantive. While the claimants were paid back pay and given temporary promotion in recognition of the additional Grade C duties they performed, they did not take any action to pursue the question of permanent upgrading until 2006. We find on the basis of the facts found, that there was no contractual entitlement for the claimants to be upgraded to Curatorial Grade C on the basis of the JEGS report.

8 The claimants argued secondly, that they were entitled to be upgraded to Grade C on the basis of the through-grading provisions of NICS Circular 16/88. They also argued that the failure of the respondent to make them aware of the Circular was a breach of contract (See para.3.7 above). While we find that the circular was probably circulated to staff when it issued in 1988 in accordance with normal practice, it does seem strange that it was not drawn to the claimants' attention when they first raised the issue of their grading in 2006, if only to explain to the claimants why, in the opinion of the respondent, it did not apply to their situation. We agree that it was a breach of contract on the part of the respondent not to draw the provisions of the Circular 16/88 to the claimants' attention. The question remains as to whether the claimants suffered any damage as a result of this breach. We have considered the application of Circular 16/88 and para.2151 of the NICS Code against the actual situation in the Built Heritage Directorate from 2002 onwards (see para. 2.13 above). Given that there was only one vacancy for a substantive Grade C post in 2002 and that at least the two claimants - and probably two other Grade D colleagues - would have been eligible to be considered for through grading, it is difficult to see how straight through grading could have been applied fairly. Even in 2006, following Dr Lynn's retirement, when there were two substantive Grade C posts vacant, both the claimants and Mr Neill could have been considered for through grading and again, there were more eligible staff than posts. So we agree with the respondent that through grading was not appropriate in this case and would have breached the equity principle applied by the NICS. What does seem bizarre is that the respondent did not proceed to fill the vacant substantive Grade C post for over 4 years, from 2002 until late 2006, which left both claimants in a position of great uncertainty as to their future. We can see no good reason why this should have happened and it is, in our view, contrary to best practice.

9 The claimants argued, thirdly, they had acquired a contractual entitlement to carry out Grade C duties by virtue of having been temporarily promoted for so long. The decision of Mr Coulter to rotate Grade C duties amongst the two claimants and Mr Neill, with the resultant loss of pay to the claimants, was seen by the claimants as a demotion and accordingly a breach of contract. The claimants' representative did not make it clear exactly when he believed the claimants had achieved permanent status or how long they needed to carry out Grade C duties to acquire that status. The respondent argued that the claimants could not suffer a demotion when they had no contractual entitlement to a permanent Grade C post, as they were clearly promoted on a temporary basis only. The letters and memos sent to the claimants regarding their acting up and temporary promotion to Grade C always made reference to the temporary nature of the arrangement: this was not disputed by the claimants at any time until late 2006. None of the correspondence suggested that the claimants had been appointed to a permanent Grade C post. If the claimants had indeed achieved Grade C, it must have been by an implied, rather than an express, contract term. We have set out the law in relation to implied contract terms above at para 3.9. Applying these authorities to this case, we believe that it is not possible to imply a term of permanent appointment at Grade C into the claimants' contracts of employment. First of all, such a term is not necessary to give efficacy to the contract that was done by the temporary promotions. Secondly, it is not at all evident that requirement of permanent Grade C status represents the obvious but unexpressed intention of the parties : the authorities make it clear that a term will not be implied if it would be inconsistent with the express wording of the contract. In the case of both claimants, the express wording of their contracts was to the effect that they were, at various times, deputising, acting up or temporarily promoted. At no time did the wording indicate a permanent promotion. Since the claimants had no contractual entitlement to a permanent post at Curatorial Grade C, they could not be demoted from that Grade. Accordingly, there is no breach of contract in that regard and so no unlawful deduction of wages.

10 In summary, we believe that the respondent has been unforthcoming with the claimants in providing information, both about the JEGS system, it processes and outcomes and also about the existence of NICS circular 16/88 and it application to the claimants' circumstances. Had accurate information been made available much sooner, it may have given clarity to the claimants and they may then have pursued the issue of their permanent upgrading sooner. As it was, against a background of a structural review which ground on over a period of about seven years, we are left with an impression of an employer which was content to leave two senior and longstanding members of staff temporarily promoted, without any indication of what the long term position might be. While this is not unlawful, for the reasons set out above, we do believe it constitutes an abuse of the goodwill and confidence of senior staff such as the claimants and we can fully appreciate their feelings of frustration and demoralisation, particularly in the case of Miss Foley, who was not ultimately successful in being appointed to a Grade C post.

11 For the reasons set out above, we dismiss the claims.

Chairman

Place and dates of hearing: Belfast, 5, 6, 16-18 June 2008.

Date decision entered in the register and issued to the parties: