Collective Agreements and the Contract of Employment: Determining the Intention of the Parties or Denying Legitimate Employee Expectations?

By Barrow, Charles | Nottingham Law Journal, Annual 2014 | Go to article overview

Collective Agreements and the Contract of Employment: Determining the Intention of the Parties or Denying Legitimate Employee Expectations?


Barrow, Charles, Nottingham Law Journal


George v. Ministry of Justice [2013] EWCA 324 (Lord Justice Maurice Kay, Lord Justice Rimer, Lord Justice Jackson)

INTRODUCTION

A distinguishing feature of industrial relations in the United Kingdom is that, prima facie, collective agreements between trade unions and employers are not legally binding as it is presumed the parties do not intend the agreement to be legally enforceable. This principle was confirmed by the Court of Appeal in Ford Motor Co Ltd v AEUW1 and later put into statutory form by s.179(1) Trade Union and Labour Relations (Consolidation) Act 1992. Although collective agreements are not ordinarily of any legal significance between employer and union, if they are translated into a contractual relationship between employer and employee, then they can have legal force at the individual level as a term of the contract of employment. To assume contractual validity the relevant clauses of the agreement must be incorporated into the contract of employment expressly or impliedly and must be of an individual nature; capable of being legally binding between the employer and the employee as an individual term. George v Ministry of Justice (George) is the latest case where the Court of Appeal has examined the factors that should be taken into account in determining when the terms of a collective agreement are incorporated into a contract of employment and when such a term is "apt" for incorporation.

THE FACTS

The crux of this case was a dispute between the trade union (the Prison Officers Association) and the employer (now the Ministry of Justice, previously the HM Prison Service) over the incorporation of a term of a collective agreement in prison officers' contracts relating to overtime provisions. With a view to amending a number of working practices lengthy negotiations had taken place between HM Prison Service and the Prison Officers' Association over a number of years in the 1980's resulting in a detailed agreement (known as Bulletin 8) between the parties in 1987. The particular provision in dispute, paragraph 23 of Annex A to Bulletin 8, replaced paid overtime with "Time Off In Lieu" (TOIL)--prison officers who worked over their normal 39 hour week would be entitled to TOIL for the excess hours worked. The relevant part of paragraph 23 in dispute stated: "Group managers should ensure that individual members of staff do not work high levels of additional hours without being compensated by TOIL. The aim should be for no more than five additional hours to be accumulated in any one week. Accumulated TOIL will be granted as soon as operationally possible and within a maximum period of five weeks."

The claimant appealed against the dismissal of his claim for breach of contract when, after working the additional overtime, the employer had failed to offer him TOIL within the 5 weeks' time period outlined in paragraph 23. Judge Wood QC in the county court had held that the failure of the employer to comply with this requirement was not legally significant as there was insufficient documentation adduced in evidence to conclude that paragraph 23 had been expressly incorporated into the claimant's contract of employment. Wood J, nevertheless, did determine that a general obligation to grant TOIL was arguably incorporated by implication as a custom and practice; as payment for overtime was a recognised practice for a number of years and so clearly understood by both parties to be contractually binding. However, as there was no continuous provision of TOIL within 5 weeks as required by paragraph 23, this specific time frame was not legally inferred.

THE DECISION IN THE COURT OF APPEAL

The Court of Appeal dismissed the appeal. Rimer LJ (who gave the only reasoned judgment) found that paragraph 23 had not been incorporated by express reference as the claimant was unable to produce his original letter of appointment or written particulars of employment or any other documentation addressed to him that expressly introduced Bulletin 8 (and therefore paragraph 23) into his terms and conditions. …

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