United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES KEEGAN (Trade Union Representative) Union North West Region Regional Centre Arena Point 1 Hunts Bank Manchester M3 1UN
For the Respondent	MR JOHN CAVANAGH (of Counsel) Instructed By: Mr J W M Lewis Deputy Legal Director Town Hall Lord Street Southport PR8 1DA


 


MR RECORDER UNDERHILL QC:

1. The Appellant started work for the Respondents, Sefton Metropolitan Borough Council, in September 1994. She was a Special Needs Nursery Nurse. She provided individual care to a pupil (to whom we need refer only as Jonathan) at St Peter's Church of England Primary School in Formby. She was initially employed on a series of temporary contracts running for a single school year. Her first letter of appointment reads, so far as relevant, as follows:

"I am writing to confirm your appointment to the above post at St Peter's CE Primary School to provide Nursery Nurse Care for [Jonathan] with effect from 12 September 1994 until 31 August 1995 or until Jonathan no longer needs Nursery Nurse Provision, whichever is the earlier.

The post is graded Nursery Nurse Class 1, in accordance with the Scheme of Conditions of Services for APT and C Staff. Your commencing salary will be £8,838 per annum plus £750 per annum Special Educational Needs Allowance. Your working week is 32.5 hours. ...

The terms and conditions of your appointment are in accordance with the Agreement made by the National Joint Council Local Authorities for APT and C Services. The Employment is terminable by notice of 1 week on either side. ... "

In respect of the following year she received simply a short letter (dated 5 July 1995) in the following terms:

"I am writing to confirm that your temporary appointment as Nursery Nurse at St Peter's Primary School to provide Nursery Nurse Care for [Jonathan] has been extended with effect from 1 September 1995 until 31 July 1996 or until [Jonathan] no longer needs Nursery Nurse Provision or his statement of support changes, whichever is the earlier.

Your terms and conditions of service will remain the same.

I should be obliged if you would confirm in writing your acceptance of this extended temporary appointment for the period and on the terms stated above."

Similar letters were written for 1996 and 1997.

2. The relevant trade union, UNISON, was not satisfied with this impermanent arrangement and in September 1998 it reached an agreement with the Council that all School Support Assistants - a term which covered both Learning Support Assistants ("LSAs") (as the Appellant's job was now known) and Care Assistants - should be taken into permanent employment on terms prescribed in a Memorandum of Understanding between them. In accordance with that agreement, the Appellant was on 11 September 1998 sent a letter in the following terms:

"In the light of the agreement reached with UNISON in respect of Learning Support Assistants/Care Assistants, I am now able to formally offer you permanent employment as a Learning Support Assistant/Care Assistant in accordance with the conditions set out in the attached Memorandum of Understanding with the Trade Union.

If you wish to accept this offer of permanent employment, please sign and return the enclosed acceptance slip in the pre-paid envelope, by Wednesday, 30 September 1998 at latest.

I wish to take this opportunity to mention that a review of Special Needs provision is currently being conducted, in consultation with the trade unions, which has arisen from Government proposals. You will be advised of any employment issues resulting from the review as and when proposals are developed ... "

A copy of the Memorandum of Understanding was enclosed. On 6 October 1998 the Appellant was sent a formal statutory statement of terms and on 21 October 1998 she signed a form accepting an offer of permanent employment on the terms and conditions set out in the statement. The statement consisted of a printed standard form with various blanks completed in manuscript with particulars specific to the Appellant's employment. The parts relevant to the issues in this appeal are as follows (with the manuscript entries indicated by italics):

"1. [(a)] You will work at St Peter's CE to provide support for [Jonathan] until he no longer needs provision, or his Statement of Support changes, whichever is the earlier.

[(b)] The employment contract provides for a guaranteed minimum of 12 hours employment per week (term time only for Care Assistants) with a requirement to work additional hours up to a maximum of 32¹/₂ hours per week.

[(c)] You will be required to work in any location as may reasonably be determined. Variation in hours/location will be the subject of prior consultation with you.

2. ...

3. [(a)] Your terms and conditions of employment, including certain provisions relating to working conditions, are covered by collective agreements negotiated with specific Trade Unions ... recognised by this Authority for collective bargaining purposes. These agreements are embodied in the following Scheme of Conditions of Service relating to your group:

NJC for Local Government Services

And in other documents available for inspection on application to your Headteacher or the Personnel Section in the Education Department.

[(b)] Variations in terms and conditions of employment results from negotiations with the specified Unions and these will be notified to you or incorporated in the documents to which you have access. The Authority undertakes to ensure that changes will be entered in these documents or otherwise recorded for you to refer to, within 28 days of the change. The above documents contain the authoritative statement of your terms of employment: a general description of the principal conditions at the time of issue of this statement is set out below.

4. ...

5. Pay and Hours

(i) ...

(ii) Your working week is 32½ hours.

* You will be required to work 32½ hours per week for which you will receive [ ].

* This includes the details of any overtime/irregular hours/shift work/night work/weekend working etc, as well as the pay rates applicable.

... ."

(We have added letters to the sub-paragraphs within paragraphs 1 and 3 for ease of reference.) It was common ground before us that the two asterisked sentences in paragraph 5(ii) should have been deleted and that the partial completion of the first was, strictly, inappropriate. It was also common ground that the Appellant's signature to the offer letter referring to the statement meant that it did duty also as the contract of employment.

3. Jonathan had originally required support throughout the whole of the school day, i.e. 32½ hours per week; and it was on this basis that both the Appellant's original temporary contracts and the permanent contract entered into in 1998 stated her working hours as 32½. But shortly after her change to permanent status Jonathan's needs were reviewed, and it was determined that he only required support for 24 hours per week. On 3 November 1998 the Council wrote to the Appellant in the following terms:

"In accordance with the conditions set out in the Statement of Written Particulars (Employment Rights Act 1996) I am writing to confirm that the Statement of Support for [Jonathan] has been reduced.

With effect from the 01/01/1999, your appointment will be to provide 24 hours Nursery Nurse Care for [Jonathan] until he no longer needs provision or his Statement of Support changes, whichever is the earlier. I regret having to reduce your hours, but the circumstances are out of my control, however, I will do my utmost to assist in increasing your hours.

Your terms and conditions otherwise remain unchanged. I should be obliged if you would confirm in writing your acceptance of these changes ... ."

4. The Appellant did not believe that the Respondent was entitled to reduce her hours in this way. After it proved impossible to reach any agreement with the Council, she brought proceedings under Part II of the Employment Rights Act 1996 claiming that her non-payment in relation to the balance of 8½ hours constituted an unlawful deduction from her wages. She also initially claimed sex discrimination, but that claim was subsequently abandoned. By Extended Reasons sent to the parties on 17 November 1999 a Tribunal in Liverpool, consisting of Mr Lloyd Parry as a Chairman sitting alone, dismissed her complaint. The Chairman held - see paragraphs 4(b) and (c) and 5 of his Reasons - that on the correct construction of the contract the Appellant was not entitled to be offered more than 12 hours work per week but could be required to work up to 32½ hours per week (see paragraph 1(b) of the statutory statement of terms); that the reference to 32½ hours in paragraph 5 of the statutory statement merely identified the hours that she was required to work at the time that the statement was issued; that that total could be effectively varied downwards provided that the total weekly hours did not fall below 12; and that there were proper consultations as required by paragraph 1(c) of the statement.
5. On this appeal Mr Cavanagh for the Council seeks to uphold the Chairman's decision and reasoning. He contends that it reflects the natural reading of the statutory statement of terms. He also says that this would have been in accordance with the understanding of the parties. It is in the nature of work as a learning support assistant assigned to a particular child that the hours of work required may vary in accordance with the reassessments which occur from time to time of the child's needs. He also says that this construction is in accordance with the terms of the Memorandum of Understanding between the Council and UNISON (of which the Appellant has received a copy). Paragraph 8 of the Memorandum reads:

"The permanent contracts will provide for a guaranteed minimum of 12 hours employment per week (term time only for Care Assistants) with a requirement to work additional hours up to a maximum of 32.5 hours per week."

6. Mr Keegan, for the Appellant, contends that the Chairman was wrong, for two reasons:

(a) Even if attention is confined to paragraphs 1 and 5 of the statutory statement it is wrong to read paragraph 1 as qualifying the clear terms of paragraph 5, which states in terms that the Appellant's working hours were 32½ per week, with that figure having been specifically inserted as appropriate to her case. Paragraph 1, which forms part of the "standard" provisions of the statement, merely states the range of possible hours, with the particular employee's position within that range being identified in paragraph 5. Any ordinary employee, he submits, reading the contract would regard the statement in paragraph 5 as definitive. He suggests that paragraphs 1(b) and (c) are in fact no more than a (somewhat inappropriate) transposition of the provisions of paragraph 8 of the Memorandum of Understanding.

(b) He refers to paragraph 3(b) of the statutory statement, which declares that the authoritative statement of the employee's terms are to be found in the collective agreements negotiated through the NJC for Local Government Services. He refers us to what appears to be an extract from a collective agreement negotiated in the NJC headed "Part 3 Appendix 2: Retained Employees and Nursery Employees in Educational Establishments". Paragraph 2 within this extract is headed "Nursery Employees" and reads as follows:

"Nursery employees working directly with children in classrooms up to the age of seven or working with children attending a special school or with children with statements of special educational needs.

(a) Nursery employees are to be regarded as full-time employees if regularly employed for ten sessions or more per week (including lunch breaks where worked) during the school term or, where a sessional basis is inappropriate, for 32.5 hours (including lunch breaks where worked). The right of the employer to require further work outside normal school hours is subject to payment at the plain time rate (based on 1/32.5 of weekly pay) or at the overtime rate of 1.5/32.5 for hours worked beyond a standard working week.

(b) There will be no abatement of pay in respect of days not required to be worked during school holidays.

(c) Nursery employees employed full-time should be available to work for 195 days in any year, of which 190 days will be days on which pupil contact is required. "

He contends that the effect of this provision is that - whatever might otherwise appear in the statutory statement of terms - the Appellant was entitled to be paid as a full-time employee. This aspect of Mr Keegan's submissions is not dealt with in the Chairman's Reasons, although it is common ground that it was raised before the Tribunal. Plainly it should have been dealt with; but since the point is one of pure law Mr Keegan invited us to decide it ourselves if we felt able to do so, rather than to remit it.

7. The case was very well argued on both sides and we did not find it easy. Nevertheless we have concluded that the Chairman's decision was right and that the appeal should be dismissed. Our reasons are as follows.
8. So far as Mr Keegan's first point is concerned, we accept that paragraphs 1 and 5 of the statutory statement appear, if read in isolation from each other, to point in opposite directions. But the document has to be read as a whole, and in a way which so far as possible reconciles any apparent contradictions. If paragraph 5 is treated as creating an absolute and unalterable contractual entitlement/obligation to work 32 ½ hours per week, that gives no meaning or content to paragraph 1 (b) and (c): the concept of a "minimum" obligation on the Council would be meaningless, as would the reference to "variation in hours". On the other hand, the reference to 32 ½ hours is entirely reconcilable with paragraph 1 if it is regarded as simply stating what the current position was, i.e. as at the date of the statutory statement. The employee would need to know her current hours, even if they were subject to a power of variation. It is true that, as Mr Keegan pointed out, paragraph 1 is a standard term (deriving from the Memorandum of Understanding); but that is not a reason for giving it no effect. This is not a case where the "standard" clause can be explained as intended only to cover other types of case - in practice, cases where the hours figure was less than 32 ½. There is no reason why the Council should be entitled to vary (downwards or upwards) the stated hours of employees working 12 or 24 hours but not those working 32 ½.
9. As to Mr Keegan's second point:

(1) The provision of the collective agreement on which he relies applies to nursery nurses employed "for ten sessions or more per week". The effect of the reduction in the Appellant's hours to 24 was that she continued to work in ten units of time throughout the week - morning and afternoon - but they were shorter units because they excluded breaks and meal-times. Mr Keegan contended that those units were "sessions" within the meaning of the provision. Mr Cavanagh contended that a "session" was a term of art in the world of education law denoting in effect, a full half-day: he referred us in particular to reg. 10 of the Education (Schools and Further Education) Regulations 1981, and para 4 of DES Circular 7/90, which were not apparently produced to the Tribunal. We are not confident that we have sufficient material to make a definitive finding, and, as will appear, the point is not one which needs to be decided.

(2) Even if Mr Keegan is right about the meaning of the term "session", the provision on which he relies does not say that nursery nurses working ten sessions shall be paid for 32 ½ hours: it says simply that they will be "regarded as full-time employees". It is not clear what the consequences of being a "full-time employee" are, though they include being available to work for 195 days a year (see (c)). But what matters is that Mr Keegan was unable to show us any provision to the effect that such employees are entitled to be paid for hours which they have not in fact worked.

(3) Even if we regarded the provision in question as ambiguous, i.e. as at least possibly having the meaning for which Mr Keegan contends, we would not be prepared to hold that a provision which is so obscurely expressed, and incorporated only by reference to a national collective agreement, could prevail over the express terms of the individual contract (which itself incorporated the terms of an express agreement between Council and Union at local level). On ordinary rules of construction, the clearer and more specific terms should prevail.

We do not therefore believe that the provision relied on by Mr Keegan can alter the position as otherwise stated in the statutory statement of terms.

10. In some circumstances it would be very surprising that an employer should have a unilateral right dramatically to alter the working hours of an employee. But it is less surprising in the particular circumstances of the Appellant's employment. The permanent contract under which she claims was entered into in substitution for a series of temporary contracts under which the Council had in practice very considerable flexibility: it would appear that the Council wished to retain that flexibility to at least some extent. It is also the case, as Mr Cavanagh emphasised, that the contract was specifically to care for a particular child, whose needs were - as the Appellant would have known and was reminded in the letter of 11^th September 1998 - liable to be reviewed: it was inherent in the job that the working hours would fall to be reduced if Jonathan's needs were re-assessed downwards. The changes made in October 1998, following the agreement with UNISON, reflected that while improving the employees' position by including a minimum hours guarantee and according the advantages of 'permanent status'.
11. We accordingly dismiss the appeal.