Relf v Nottinghamshire County Council [1996] UKEAT 686_96_1311

EAT

Relf v Nottinghamshire County Council

[1996] UKEAT 686_96_1311 · 1996-11-13

JUDGE PUGSLEY:

This is an appeal from the Industrial Tribunal sitting at Nottingham on 3 May 1996. The decision itself is extremely short. The Tribunal found that there had been no unlawful deduction from the Applicant's wages.

It is so short that it can be read without imposing any great burden:

"1 This is a full Decision.

2 This was an allegation of unlawful deductions from the applicant's wages. The respondents disputed the claim.

3 The facts are not in dispute and are set out in the applicant's witness statement. To put it simply, there was a restructuring of the Education Department in which the applicant worked. He accepted a new role which involved him in a reduction in wages. It was up to that point that the respondents had protected earnings and the respondents made it clear to the applicant in a letter dated 8 March that this protection of pay was under review. Whatever the applicant says now he clearly understood that to be the position and in fact he wrote a letter to the respondents (A10) in which he was submitting that he had a special case for protection of earnings. He now says that there was an agreement for his wages to be protected.

4 We are satisfied, and find, that the applicant has been paid according to the terms and conditions of his employment, as evidenced by the letter to the applicant confirmed by the letter from the applicant to the respondents. All this was done after negotiation with the recognised Union.

5 There has been no unlawful deduction from the applicant's wages and his claim is therefore dismissed."

It is true as Mrs Andrew has pointed out that paragraph 3 starts by saying "the facts are not in dispute and are set out in the Applicant's witness statement." By the end of that paragraph it is clear that the Tribunal did not accept parts of the Applicant's evidence. Although with considerable advantage the decision could have been amplified, we have had the advantage of having submissions by Ms Grewal, who appears now for the Respondent, and she has with her one of the witnesses who gave evidence at the Tribunal. We accept that before the Tribunal was in evidence the fact that there were negotiations with the recognised trade union.

We turn now to consider the grounds of appeal and the careful Skeleton Argument that has been put before us by both parties. Mr Relf commenced employment with Nottinghamshire County Council on 1 April 1989 as a County TVE1 Extension Co-ordinator. The letter of appointment is to be found and is set out at page 16 of the bundle of documents. In effect he was told that his position would be permanent; his current appointment is offered on a 7¼ year engagement until July 1996. Shortly thereafter, we infer that the particulars of employment which we have relates to this, there was some form of restructuring, as is mentioned in Mr Relf's statement, with the result that his post was re-graded to that of Head Teacher Group 5, as opposed to having been on the Head Teacher Group 10. The result of that grading was that there was a substantial salary increase in April 1991.

In March 1993 there was a restructuring in that department. Mr Relf was appointed to a lesser paid job. In his statement at paragraph 6, he says this:

"... At that time I was on a higher salary than point 18 of the Soulbury Scale and I was given protected earnings. This meant that I would remain on my current salary until such time as point 18 of the Sudbury Scale caught up with my then salary. This is clarified in the letter to me dated 8th March 1993. My salary at the time was £36,489 per annum."

We now come to the letter of 8 March. That letter, Mrs Andrew submits to us, is confused and ambiguous and therefore she says (using a well-known Latin tag) should be construed against the party, namely the local authority, seeking to rely on it. The material paragraph of the letter reads as follows:

"... This post is graded on Soulbury (points 15-18). The County Council's policy to protect staff grading where staff are redeployed to a post of a lower grade than their existing post is to be reviewed by the Resources and Education Committees and may be amended following consultation/negotiation with the recognised Trade Unions. Initially your salary will be protected at its current monetary value (i.e. £36,489 per annum) until such time as the salary attached to the grade of the post has caught up with your protected salary. It is intended to apply the results of this review to posts affected in this restructuring. All other terms and conditions of service remain unchanged."

Thereafter in the letter, Mr Relf was invited to sign and return a copy indicating that he accepted its terms and he duly did so by a signature dated 10 March 1993.

Mrs Andrew has realistically said, and made the wholly proper concession, that if we were to construe that letter as conferring a contractual power on the local authority to review the policy of protecting incomes and to apply it to Mr Relf, then it could not be said that there had been an unlawful deduction. Indeed it could not be said that there had been any deduction. We accept that is a wholly proper concession.

We turn now to the question of the letter. Each Member of this Tribunal, before conferring about this case, read that letter. Each of us came to the view that it was a letter which was clear in its terms. We have listened to what Mrs Andrew has said and elegant and ingenious though her arguments have been, in our view this letter is totally clear as to its meaning. On any objective analysis it means this: that Mr Relf was told(a) that there was an existing policy to protect earnings;

(b) that that policy was subject to review;

(d) that he would nevertheless initially have the benefit of the policy as it existed, until such time as his salary caught up with his old post or, in the context of the paragraph as a whole, there was a review which altered the position. We cannot accept that the word "initially" is a word that has no significance.

We are quite satisfied that construing the whole of the paragraph, it was objectively clear to anyone reading that letter, that there was going to be a protection; that there was no guarantee that policy would continue because it was under review: the review would be conducted in consultation and negotiation with the union,

We have been told and we accept that there was evidence before the Tribunal there was such a consultation with the trade union and indeed, it is right to say, that it is made very clear in the letter which Mr Relf was sent in November 1994, that there was in fact a degree of negotiation. Under the letter of 8 March, Mr Relf only had a protection as to a salary of his existing monetary value £36,489. As a result of the change in the review, he was given a back-dated payment from 1 April 1993 to the enhanced salary on the scale he would have been on had he still been in the old post, and he was warned that from April 1995 the protection would cease and it would revert to a salary of some £33, 381.

As a matter of history, in view of representations made by Mr Relf, the Local Authority have not exacted that reduction in its entirety. We cannot consider this case without saying how grateful we are to both Advocates with the way in which they put their case both in writing and orally. But at the end of the day we can see no error of law in this decision.

Mrs Andrew has made the point that the decision could have been fuller. She has not been able to point to any matter, such as a promise that the letter would have no effect, or something of that nature, which might in any way be admissible, as an aid to construction of the letter, or alternatively, as a ground for saying that the letter was not binding upon the Appellant. Although the decision could have been fuller in our view there is no error of law and we dismiss the appeal.

Ms Grewal has urged that we should make an order against the Appellant for costs. She states that the argument as to the construction of the letter of 8 March was unarguable and that there is no proper basis for the appeal. She submits the case comes within the ambit of Rule 34(1) of the Employment Appeal Tribunal Rules which states:

"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

First, we do not consider that anything improper has happened here. In fact, if we may say so, Mrs Andrew's arguments were optimistic and at one point, as she readily conceded, overstated, does not mean it was improper. We do consider that the issue and construction was as near to unarguable as it could be, but Mrs Andrew did argue it, without repetition. We are, however, not going to make an order for costs, for the simple reason that we consider that this decision needed amplification to allow our adjudication on the appeal. Mrs Andrew has not objected to this Tribunal being told what the issues were. In the exercise of our discretion it would not be appropriate to order the Appellant to pay costs. We do not say it in any minatory way that if the matter is taken further it might be an application for costs would be more likely to be successful. That would be a matter for the Court of Appeal and not us.