MR C A LOVETT v WIGAN METROPOLITAN BOROUGH COUNCIL [1999] UKEAT 571_98_0902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 571_98_0902Case No Appeal No. EAT/571/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C A LOVETTAPPELLANTWIGAN METROPOLITAN BOROUGH COUNCILRESPONDENT
Before
His Honour Judge C SmithDate 9 February 1999
[1]APPEARANCES For the Appellant MR C A LOVETT (In Person) For the Respondents MR P GILROY (Of Counsel) The Borough Solicitor Wigan Metropolitan Borough Council New Town Hall Library Street Wigan WN1 1YN JUDGE C SMITH : This is an Appeal by the Appellant before the Industrial Tribunal, Mr Christopher Lovett, against the decision of an Industrial Tribunal, held at Manchester in December 1997 and January 1998, where the Industrial Tribunal held that the Respondents, Wigan Metropolitan Borough Council (the employers), were not in breach of the Appellant's contract of employment in failing to pay the Appellant on a scale higher than point 28 of their relevant salary scales. Extended reasons for the decision were sent to the parties on 1 February 1998. As appears from the decision, the Industrial Tribunal also decided that the Appellant had not been unfairly dismissed by the Respondents on 17 July 1997 and leave was refused by the Employment Appeal Tribunal (the EAT) to appeal against that decision. Accordingly this appeal is limited to the ground of appeal defined in the penultimate paragraph of the judgment of the EAT dated 15 October 1998. As the EAT made clear on that occasion, the sole point of appeal relates to the proper construction of the Appellant's contract of employment with the Respondent council. The following appeared to be common ground before the Tribunal: That the Respondents had advertised in late 1989 for Assistant Engineers (Mechanical & Electrical) and that the Appellant responded to the advertisement.[2]That the Appellant was interviewed and was made a verbal offer of employment for the post of Assistant Mechanical Engineer (Design) which he accepted, thus an oral contract came into existence.[3]That the terms of the oral contract were set out in the letter to the Appellant dated 29 January 1990, which reads as follows:
"Dear Mr Lovett Assistant Mechanical Engineer (Design) I am writing to confirm your appointment to the above mentioned post subject to a satisfactory medical history. The terms and conditions of the appointment are those agreed by the National Joint Council for local Authorities Administrative, Professional, Technical and Clerical Services. Your commencing salary will be £12,462 per annum within Salary Scale 4/S01 (£8,967-£13,824). This is a career graded post in which progression beyond Scale 6 is dependant upon your gaining the appropriate qualifications and experience. A commencement date will be arranged on the receipt of satisfactory results of your medical history. Yours sincerely R Harrison Borough Personnel Officer."
[4]That the salary scale 4/S01 referred to in that letter in fact embraced scales 4,5,6 and scale S01. That each of the scales included a number of increments described as 'points'. The Appellant's commencement salary of £12,462 per annum was at point 28 on scale 6, i.e. the highest increment point on scale 6 thus, in order to be at point 29 or any higher point, the Appellant would have to progress to salary scale S01.[5]That at the time of his appointment as Assistant Mechanical Engineer (Design) the Appellant held an HND in Mechanical Engineering.[6]That the Appellant commenced his employment on 1 March 90, (approximately), and was promoted to Engineer Mechanical with effect from 1 April 1996 (approximately) the post he occupied until his dismissal in July 1997.[7]That on 11 June 1990 the Respondents sent to the Appellant the statutory statement of terms, apparently dated 10 May 1990, which the Appellant signed by way of acknowledgement of receipt of the same on 12 June 1990. Annexed to that document, and incorporated by express reference into it, was a document headed 'Proposed Career Grade Structure'. It is important to note that, by the terms of the proposed grade structure document, it was provided as follows:
"Progression through a bar in a career grade will be subject to: a) Achieving level of qualifications indicated below or equivalent b) Achieving level of experience indicated below c) Annual performance appraisal d) Needs of the department Qualification and Experience requirements. (e) Scale S.0.1 (i) HNC/HND plus 10 years relevant pre or post qualification experience."
Those are the relevant extracts from that document which we regard as of significance.[8]That in about January 1991 and again in 1992 the Appellant complained that he had remained on point 28 rather than being uplifted to point 29 on scale S.0.1 and, on both occasions, Mr Fairclough of the Respondents refused to upgrade him to point 29. All of the above findings can be seen, in our judgment, directly or indirectly from the Tribunal's decision between paragraphs 2 and 8 of the decision, as there set out in detail. By paragraph 8 of the decision the Tribunal found that the contractual term in the letter dated 29 January 1990 as follows:
"This is a career graded post in which progression beyond Scale 6 is dependant upon your gaining the appropriate qualifications and experience" referred to criteria which the Tribunal defined as follows: "
In order to achieve SO1 grade the employee had to have ten years' experience of being an assistant mechanical engineer or mechanical engineer and had to achieve the qualification (which the applicant actually had) and appointment to the higher scale was subject to the needs of the department." The Tribunal held that this is what the Respondents and their employees understood when they referred to "bar at scale 6" or "bar at point 28 (career grade)". This expression was contained in the statutory statement of particulars dated 10 May 1990 received by the Appellant on or about 11 June 1990 and signed by him, by way of receipt, on 12 June 1990. It appears from further comments made by the Chairman, at page 26 of the bundle before us, that, in holding that appointment to the higher scale, i.e. scale SO1, was "subject to the needs of the department" the Tribunal were finding that the document at pages 35 and 36 of the bundle, to which we have already referred, headed "Proposed Career Grade Structure", which contained these words (as we have already recited) had formed part of the Appellant's contract of employment. In our judgment, whether the Tribunal was correct in so deciding is a matter of law - namely the proper construction of the documents in this case - rather than a question of fact. There was no evidence before the Tribunal that the document headed "Proposed Career Grade Structure" had been brought to the notice of the Appellant at the time of interview but it did form part of the statutory statement of particulars, as incorporated by reference in those particulars, which were not received by the Appellant until 11 June 1990. In our judgment, properly construed, parts of the proposed career grade structure document conflict with the condition in the letter of 29 January 1990 which provides that progression beyond scale 6 is dependant upon two factors only, namely, 1) appropriate qualifications and, 2) appropriate experience. In our judgment, to add a third condition, namely, "subject to the needs of the department" is inconsistent with the letter of 29 January 1990 and would have the effect that the promotion of the Appellant beyond scale 6 was entirely at the discretion of the Respondents, in that it was subject to the needs of their department. Such a contract is, no doubt, perfectly commonplace and, indeed, may be usual and sensible. But in our judgment, where there is an appointment to a post on a salary fixed by reference to a succession of scales and points within those scales, increasing automatically year upon year, it is for the employer to set out clearly the contractual conditions to which progression through the points and scales is to be subject by way of qualification of the otherwise automatic progression through the scales and the points within those scales. Thus, in our judgment, it was necessary for the Respondents clearly to demonstrate that they had brought to the attention of the Appellant that his progress beyond point 28 and into scale SO1 was dependant upon the needs of the department so as to make that condition of contractual effect, In our judgment, even assuming - as we do - that the document (at pages 35 and 36) was incorporated into the statutory particulars, we nevertheless find that the requirement that progression to scale SO1 would be subject to the needs of the department did not have a contractual effect and, in this respect, we find that the decision of the Tribunal was, with respect, in error. In our judgment this additional condition upon which progression through the scales was dependant did not correspond with what had already been agreed at interview and confirmed in the letter of appointment for the reasons we have already given. Thus, applying Robertson & Jackson v British Gas Corporation [1983] ICR 351 CA, we hold - on a difficult matter that - the Tribunal should have found that the Appellant had successfully refuted that part of the statutory statement dealing with the needs of the department by his reliance upon what had been said at interview and the letter of 29 January 1990 which, together, in our judgment, formed the contractual documents. So on that ground alone we find we cannot support the decision of the Tribunal. However, the matter does not end there. In our judgment it is quite clear from the letter of 29 January 1990 itself that progression beyond scale 6 was expressly dependant upon the Appellant gaining both the appropriate qualifications and experience. There was no difficulty in his case with regard to qualifications since he had the qualification, but it is a different matter with regard to experience. In our judgment, applying normal contractual principles, evidence can be received as to the meaning of the words, "gaining appropriate experience". In our judgment the meaning of 'appropriate experience' necessary for SO1 was properly and contractually established by the terms of the proposed career grades structure served as part of the statutory particulars namely, as follows:
"HNC/HND plus 10 years relevant pre or post qualification experience"
In our judgment it is legitimate to look at the proposed career grade structure document in order to amplify and explain the meaning of the term 'appropriate experience' which had already been contractually agreed, as opposed to looking at the document, for the purpose of seeking to impose an additional requirement on top of what had already been agreed. In our judgment, the expression "HNC/HND plus 10 years relevant pre or post qualification experience" must mean experience in carrying out the principal duties and responsibilities of an Assistant Mechanical Engineer (Design) or Mechanical Engineer (Design) or equivalent post either before or after qualification and either with the Respondents or with an employer of equivalent status in the public or private sector. The Tribunal did not, need to make findings in relation to this key issue because they held that progression beyond point 28 was subject to the 'needs of the department'. We have already given our reasons on this difficult matter for respectfully disagreeing on that particular point. Therefore, in our judgment, unfortunately this case will have to be remitted to the same Tribunal in order for that Tribunal to decide, on evidence to be placed before them, whether or not Mr Lovett ever gained the requisite experience, prior to his dismissal, as we have defined it above in accordance with the contractual requirements and, if so, when he gained such appropriate experience. We make clear that if he did not gain such experience his contractual claim fails. If he did gain such experience, on the other hand, as we have defined it, then, in our judgment, subject to any point on limitation - which, will be open to the Respondents to take - he would be entitled to have progressed to point 29 and beyond on scale SO1 and to be paid accordingly. Thus we find that we have to allow the appeal to that extent and remit the case to the Industrial Tribunal.