“This document sets out your principal terms and conditions of employment. It incorporates the written particulars required by theEmployment Rights Act 1996 and, together with the staff handbook 1 [or departmental equivalent] as amended from time to time, constitutes your contract of employment with the Crown.”
“1 All references to "staff handbook" in this model contract are references to the departmental/agency document(s) which in compliance with the Civil Service Management Code set out the terms and conditions of service of the civil servants in each Department/Agency with amendment made by agreement with the Trade Unions.”
“80 There are facilities for the deduction from pay, at the request of staff, of periodic payments to organisations with which the Agency as arrangements for the collection and remittance of such payments. … Trade Unions 84. Under an arrangement known as ‘check-off’, members of staff can arrange for trade union subscriptions to be paid directly from their salaries, free of charge. In the past, authorisation for such payments was only required when staff first joined a trade union. Now, under theTrade Union Reform and Employee Rights (TURER) Act 1992 , all union members have to sign new authorisations every three years. 85. Staff are notified in advance of any increase in subscriptions, and can withdraw from the check-off arrangements on publication of such a noticed, or at any time, although a reasonable period should be allowed between an instruction to stop and cessation of deductions. 86. Currently a number of staff contribute to the following: FDA Administrative grades IPMS Scientific and Technical grades PCS Executive, Clerical, Secretarial and Support grades 87. In the event of official industrial action by civil servants, and for the duration of such action, the Treasury may require the facility to be withdrawn in whole or in part in respect of deductions payable to any unions with members officially involved in the industrial action….”
“You may arrange for your trade union subscriptions to be debited directly from your pay. Contact your local trade union representative for details.”
“3.4.1. You may authorise deductions from your salary for direct payment to organisations such as trade unions, the Civil Service Sports Council, the Civil Service Benevolent Fund, the Civil Service Retirement Fellowship or charitable organisations via “Give As You Earn”
“Would Defra consider retaining the facility if the unions offered to meet the cost of it? Bearing in mind that you have accepted that there is a contractual right for a small group of staff and the cost of continuing these arrangements for all staff is the same, PCS would be grateful if you could answer this question.”
“I appreciate that the CSMC does not of itself set out terms and conditions of service. Its significance, however, is that in a context where legislation permits terms to be imposed on civil servants, it sets out, in areas where departments and agencies are given discretion to determine terms and conditions, ‘the rules and principles which must be followed in the exercise of those discretions’. Paragraph 7.3.3 of the CSMC supports the view that what Departments are being authorised to do in relation to check-off, where they offer it, is to continue the historic position. I say that because of the continuing presence of the express permission to withdraw check-off when there is industrial action. I agree with Popplewell J’s analysis of the significance of that express permission. I also note that departments must get the approval of the Cabinet Office if check-off is withdrawn, and the general warning in paragraph 6 of the CSMC that departments should remember that existing rights cannot be altered arbitrarily’.”
“You state that you have sought legal advice; our understanding is that somestaff have a contractual right for (sic) have their union subscriptions collected by check off.” (Emphasis added)
“62. The principles are, once again, very well-established, the test being whether a term as to notice is "necessary to give the contract business efficacy" or is "so obvious that it went without saying": Marks and Spencer plc v BNP Paribas[2016] AC 742 . The Defendant submits that if check-off is contractual then the need for notice is so obvious as to go without saying. The argument was not developed in any detail in oral submissions. I consider the argument to have no real merit. Business efficacy does not demand that there be a notice provision. Check-off can operate perfectly well without it and for so long as the authorisation is maintained. The Defendant identified no reason, whether administrative, financial or otherwise, that would render it necessary for her to be able to terminate check-off on notice. Insofar as deductions are made in respect of other organisations, business efficacy does not demand notice in respect of such deductions either. The prior approval given by the department in respect of deductions to be paid to such organisations confers sufficient control on the Defendant over the process. As stated by Laing J in Cavanagh , "Such a term [as to reasonable notice] is very far, in the employment context, from being a term which is so obvious as to go without saying: see [72].”
“85. However, to take the position that to continue to work following a contractual pay cut could never constitute acceptance would be contrary to the dicta of both Browne-Wilkinson J in Jones v Associated Tunnelling Co Ltd[1981] IRLR 477 and Elias J in Solectron Scotland Ltd v Roper[2004] IRLR 4 , in an area where the specialist expertise of the Employment Appeal Tribunal must be accorded particular respect 8 ; and I do not believe that it would be right in principle. A contractual offer can of course be accepted by conduct, and that must include the offer of a variation. Under a contract of employment the parties are in a complex relationship in which they are both required to perform their mutual obligations on a continuous basis, and those obligations are frequently modified by their conduct towards each other. I can see no reason why an employee's conduct in continuing to perform the contract, in circumstances where the employer has made clear that he wishes to modify it, may not—in principle—be reasonably understood as indicating acceptance of the change. As for the Khatri case[2010] IRLR 715 , the general language of para 46 of Jacob LJ's judgment must be read in the context of his overall reasoning. He did not rely on the simple proposition that silence can never indicate consent: rather, he went on to give particular reasons why it was not proper in the circumstances of that case to infer the employee's acceptance of the new terms which the employers sought to impose—namely that those terms had not yet bitten, and also that the employers had expressly sought the employee's acceptance in writing but he had not given it. *1452 86. However, to say that in some circumstances continuing to work following a contractual pay cut may be treated as acceptance does not mean that it will always do so. On the contrary, what inferences can be drawn must depend on the particular circumstances of the case. Neither Browne-Wilkinson J in the Jones case nor Elias J in the Solectron case went further than saying that continuing to work following a contractual pay cut might constitute acceptance: the language used was “may well be taken to have … agreed” and “it may be possible to infer”
“16 I was aware that PCS had strenuously protested against the withdrawal of check-off on behalf of its members at the time that it was withdrawn. I am aware that PCS took the government to court over the removal of check-off in what we in PCS believed was the ‘test case’ of my fellow member, Mr. Cavanagh, against the DWP. I am aware that this was settled weeks before the final hearing on loss in late 2018. The union and its members have always regarded that case as testing the water for mine and other cases; and I expected that, if Mr. Cavanagh and the union was successful in that litigation, then DEFRA would no longer contest the claims of myself and my colleagues. However, that has not happened.”
“44. It appears that given the PCS’s change of focus to making arrangements for the setting up of direct debits, and in the absence of any communication on the lawfulness of the removal of check off, the employees (including the Individual Claimants) and the PCS had accepted the change. By contrast, I note that the PCS initiated the proceedings in Hickey and Cavanagh shortly after this, but did not raise any issues with DEFRA at all (including after Hickey and Cavanagh litigation: the latter case was decided in May 2016) until sending a pre-action letter for this litigation. The PCS did not, for instance, communicate to DEFRA that they (or any of their members) would be pursuing a similar claim against DEFRA.”
“69 … Mr Parr seeks to infer from the absence of any indication that a Cavanagh-type claim would be pursued against the Defendant that the Defendant's employees and PCS had accepted the change within the Defendant's department. However, in view of the fact that an objection had been raised by the PCS and had not been withdrawn, and that PCS was pursuing litigation based on check-off against other departments which shared common historical documents relating to check- off, it is not clear on what basis Mr Parr could treat the position as unequivocally in favour of implied acceptance. There is certainly nothing to suggest that the department sought to clarify the position with the PCS. Once again, there was equivocality on both sides.”
“71. Fourth, the fact that there was a substantial gap between the objection and the letter before action does not alter the analysis. Once PCS had made its objection clear (as I find it did in this case), nothing was done or said that would have unequivocally indicated to the Defendant that the objection was being withdrawn. The mere passage of time thereafter does not, in the circumstances of this case, lead to the inference that the objection was withdrawn and/or that the employees had accepted the change. That is all the more so where the Defendant is aware that ongoing litigation relating to check-off was being pursued elsewhere. Once again, it might be said that more might have been done by PCS to keep the Defendant apprised of the position in that litigation, or to re-state its objection as various milestones were reached in that litigation to remove any doubt that PCS was not conceding the position vis-à-vis the Defendant's department. However, the failure to take such steps means no more than that the position remained equivocal.”
“110. It may be said that the employee should never be held to have accepted a variation simply by working without protest under the new terms without more. After all, a party can bring a claim for breach of contract within the limitation period without having to notify the other party that he objects to the breach, and why should this be different? I think that the answer lies in the fact that the employment relationship is typically a continuing relationship based on good faith, and exceptionally in that context it might be appropriate to infer that a failure to complain about a proposed variation of the contract for the future may be taken as agreement to that variation which prevents it constituting a breach. It might also be said that an employer can always put the position beyond doubt by lawfully terminating the contract on notice and introducing the varied contract which includes the new disadvantageous term or terms. No doubt the employer's reluctance to do that is in part motivated by a desire to avoid potential unfair dismissal claims. But there are also less selfish reasons. In the context of a continuing relationship based on good faith, dismissing and re-employing might appear to be an unnecessarily hostile stance, only to be adopted as a last resort. Attempts to secure agreement should not be discouraged and exceptionally the circumstances may justify the inference that the employee has agreed to the new terms even where he has been reluctant to do so formally.”
“70. Third, the setting up of direct debit arrangements to ensure continued payment of subscriptions cannot be seen as an unequivocal act implying acceptance. The employees were faced with a situation where their union subscriptions would cease to be paid (leaving them without the benefits of union membership) unless they made alternative arrangements. The union faced a substantial loss of income unless it secured an alternative means of collecting those subscriptions. It seems clear to me that, their union having registered its objection to the removal of check off at collective level, the direct debit arrangements entered into were nothing more than reasonable mitigating steps that the employees could be expected to take when faced with a breach; the alternative would have been to risk losing the benefit of union protection and potentially incur further loss. The setting up of direct debits is another act that cannot be said, in these circumstances, to be only referable to an acceptance of the removal of check-off: it is equally consistent with the taking of reasonable mitigating steps.”
“If you are willing to accept downgrading on the basis of the terms and conditions referred to in this letter and the attached summary, will you please sign the summary and return it to me as soon as possible.”
“The following paragraphs summarise or refer to your main terms of employment…You are also subject to Civil Servants’ conditions of service published in the Civil Service Management Code which can be found on the HR Intranet.”
“52. The same point applies to waiver of any breach: by agreeing to the removal of check-off, and with both parties (employer and employee) moving forward with and maintaining an on-going employment relationship, both parties were acting on a mutual understanding (viewed objectively) that there was no material dispute between them which might affect that relationship. In other words, the Defendant was entitled to rely on the conduct of the Individual Claimants to assume that there was no dispute between them which might affect their on-going working relationship including the possibility of promotion or redeployment. The right to claim for a breach of contract has therefore been lost, whether by variation and/or waiver.”
“1. — Right of third party to enforce contractual term. (1) Subject to the provisions of this Act , a person who is not a party to a contract (a "third party") may in his own right enforce a term of the contract if— (a) the contract expressly provides that he may, or (b) subject to subsection (2), the term purports to confer a benefit on him. (2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party…”
“80. There are several difficulties with that argument: 80.1. First, it presumes that the intentions at collective level are relevant to construing the intentions of the parties (which are different from those at collective level) to the individual contracts. That is not correct, as is made clear in Hooper [Hooper v BRB[1988] IRLR 517 , CA]. 80.2. Second, it presumes that any intention that PCS had at collective level must necessarily be consistent with the intentions (of different parties) to be construed at the individual contract level. However, there does not appear to be any reason why that should be so. A collective agreement may contain many provisions, few of which might confer any direct benefit on the union itself. Whilst the union may be content with the non-enforceable status of that agreement generally, it does not follow that individual employees, into whose contracts collectively agreed terms have been incorporated, must have intended PCS not to be able to enforce those terms which did confer a benefit on the union. It is advantageous to the employees that PCS can directly enforce those arrangements since the employees then have the security of knowing that their union subscriptions will continue to be paid uninterrupted. 80.3. This analysis is reinforced by the further principle that the terms of a collective agreement incorporated into individual contracts continue to have force even where the collective agreement ceases to have force: see Morris v Bailey [1969] 2 Lloyd's LR 215. In such circumstances, the union may retain an ongoing interest in enforcing, as a third party, those terms in the individual contracts which benefit them even though the collective agreement from whence they derived has been terminated. 80.4. The suggestion in the Defendant's skeleton argument that PCS had an alternative direct route to enforcement against the Defendant, thereby rendering it unlikely that the employees and the Defendant would have intended that there be an indirect route to enforcement as a third party, appears to be at odds with the Defendant's primary position that there was no enforceable agreement at all between PCS and the Defendant. Unsurprisingly, this was not an argument developed in oral submissions and I need not consider it further. 80.5. The fact that other organisations might also have third party rights of enforceability under the 1999 Act does not undermine the Claimants' argument that PCS has such rights. The Defendant invokes the inherent implausibility of such organizations 2 having third party rights as a reason to find that none exist in respect of PCS. However, s.1(2) of the 1999 Act establishes a rebuttable presumption in favour of enforceability by a third party where the relevant term purports to confer a benefit on that third party. The starting point is therefore simply whether or not the term confers a benefit on the third party. The fact that an organisation is an unlikely candidate for third party rights might be one factor to be taken into account in construing the intentions of the parties to the contract in relation to that organisation, but it would be far from determinative. Accordingly, the Defendant's plea as to the implausibility of the position of other parties does not advance matters as far as the PCS is concerned. 80.6. As a matter of construction, the Defendant has not been able to point to any part of the check-off provisions that could be construed as negating the presumption of enforceability by PCS as a third party. The provisions are, at worst (as far as the Claimants are concerned) neutral. In those circumstances, the presumption applies: Nisshin at [23] [Nisshin Shipping Co Ltd v Cleaves and Co Ltd[2003] EWHC 2602 (Comm) ]. 81. For these reasons, I find that the answer to this issue is that the check-off provisions are enforceable by PCS pursuant to s1(2) of the 1999 Act.”
“3.— Defences etc. available to promisor. (1) Subsections (2) to (5) apply where, in reliance on section 1, proceedings for the enforcement of a term of a contract are brought by a third party. (2) The promisor shall have available to him by way of defence or set-off any matter that— (a) arises from or in connection with the contract and is relevant to the term, and (b) would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee. (3) The promisor shall also have available to him by way of defence or set-off any matter if— (a) an express term of the contract provides for it to be available to him in proceedings brought by the third party, and (b) it would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee. …”
“2.— Variation and rescission of contract. (1) Subject to the provisions of this section, where a third party has a right under section 1 to enforce a term of the contract, the parties to the contract may not, by agreement, rescind the contract, or vary it in such a way as to extinguish or alter his entitlement under that right, without his consent if— (a) the third party has communicated his assent to the term to the promisor, (b) the promisor is aware that the third party has relied on the term, or (c) the promisor can reasonably be expected to have foreseen that the third party would rely on the term and the third party has in fact relied on it. (2) The assent referred to in subsection (1)(a)— (a) may be by words or conduct, and (b) if sent to the promisor by post or other means, shall not be regarded as communicated to the promisor until received by him.