MR T A PIDCOCK v ST MATTHIAS SCHOOL [1999] UKEAT 80_99_1111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 80_99_1111Case No Appeal No. EAT/80/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T A PIDCOCKAPPELLANTST MATTHIAS SCHOOLRESPONDENT
Before
His Honour Judge A WilkieDate 11 November 1999
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR S REID (of Counsel) Instructed by: Mr C Hind Borough Secretary and Solicitor London Borough of Hackney 183-187 Stoke Newington High Street London N16 0LH JUDGE WILKIE QC : This is an appeal by Mr Pidcock against a decision of a Chairman of the Employment Tribunal after a hearing which took place on 22nd December 1997, sent to the parties on 17th February 1998, in which Mr Pidcock claimed that the respondents, the Governors of St Matthias School, had breached s.13 of the Employment Rights Act 1996 by not continuing to pay him an annual compensatory grant, a living allowance and the rent and rate payments since 1991, to which he said he was entitled, he not being a resident school keeper. Mr Pidcock has addressed us with admirable clarity and brevity this morning from a statement which he has read and he has also responded, if we may say so, sensibly and realistically to the questions that we have posed.[2]The background to this matter is that Mr Pidcock commenced his employment as a school keeper at the school on 17th October 1982. The school is a voluntary aided school. Prior to 1991 it was within the ILEA maintained sector. When ILEA was abolished the school, together with Mr Pidcock's employment, was statutorily transferred to the London Borough of Hackney. At that time there were extensive consultations between the relevant unions and a collective agreement was reached between Hackney and the unions concerning the transfer. Mr Pidcock both before the tribunal Chairman and us accepted that he was bound by that agreement.[3]That collective agreement is set out at pages 22 to 26 of our bundle. It covers a whole range of issues from job description, role of school keepers, security, hours of work, compensatory leave, overtime and so on. One section of that agreement, section 3.6 is headed "Assimilation on to APT & C grades". 3.6.1 refers to other provisions in the agreement to the effect that the actual grade of each post would be determined under the Council's job evaluation procedure. 3.6.2, however, provides as follows:
"Irrespective of the outcome of this procedure all Schoolkeeping staff statutorily transferred to the London Borough of Hackney with effect from the 1st April 1990 will be assimilated onto the grades determined by the ILEA committee report ST 9063B appended to this agreement."
[4]The issue in this appeal is whether 3.6.2 upon its true construction involves incorporation of the entirety of that ILEA report together with both Appendices A and B, or simply part of that report which deals with assimilation on to APT & C grades and Appendix A which sets out the detail of such assimilation.[5]The importance, in Mr Pidcock's point of view, is that in Appendix B to that report, which deals with a whole range of matters, paragraph 5 provides that:
"Existing emolumental arrangements will remain unchanged."
Effectively therefore, if he were right and Appendix B are incorporated into his collective agreement by 3.6.2, he would be entitled to the full range of payments which he had been receiving from the ILEA, including the payments the subject of his claim.[6]The report before the ILEA contained a recommendation:
"That subject to the considerations set out in this report and in the main report (ST 9063) Sub-Committees decide if the Authority's schoolkeeping staff should be assimilated onto NJC (APT+C) terms and conditions on the basis proposed."
[7]Paragraph 4 of that report sets out the basis of the proposed agreement. To the effect that:
"a. Schoolkeeping staff will receive a 3.5% pay increase. b. Each grade of schoolkeeping staff will be assimilated onto the NJC (APT & C) scale at the cover point which gives a basis rate of pay equivalent to their current weekday earnings including Monday to Friday overtime, adjusted for the 3.5% increase. c. Other conditions will apply as set in Appendix B."
Paragraph 5 of that report says that:
"Details of the assimilation arrangement, the APT+C grades and ranges onto which the staff will be assimilated, and the costs by grades are set out in Appendix A."
[8]It seems to us that as a matter of construction of the collective agreement, the only part of the ILEA report and the appendices which was incorporated into that collective agreement is paragraph 4(b) and Appendix A. It is those particular paragraphs in that report which deal with the question of assimilation of the then ILEA staff on to specific APT & C grades. It is clear to us and, indeed, Mr Reid in his skeleton argument has very helpfully detailed point by point this matter, that Appendix B in its subject matter deals essentially with the like issues which the collective agreement in its turn dealt. Within that collective agreement there is a separate and specific section dealing with assimilation on to APT & C grades. It is to that specific and limited section only that reference is made to the ILEA Committee Report, by reference to assimilation on to the grades determined by Appendix A to that report. The only part of that report which deals with the specific grades and assimilation on to grades are paragraphs 4(b), 5 and Appendix A which identifies the relevant grades. Therefore, we conclude that the tribunal Chairman decided correctly, as a matter of construing these various documents, that Appendix B to the earlier report was not a part of the subsequent collective agreement and, therefore, did not become part of Mr Pidcock's contract of employment. In particular, there is no term of his contract of employment that his existing emolumental arrangements with the ILEA remained unchanged.[9]It therefore follows that there is no error of law in the decision of the Chairman, when, on that basis, he dismissed Mr Pidcock's application. Accordingly, for those reasons, we dismiss this appeal. [ Mr Reid applies for costs against the appellant for the respondents. In his submissions this appeal was not an appeal that was not properly brought. He submitted that the Appeal Tribunal were satisfied that Mr Pidcock had not, as it were, made out a prima facie case and in the circumstances, he asked for the costs of the respondents who responded to the appeal to be paid by Mr Pidcock. ][10]Thank you for that submission. This is a matter which was dealt with through preliminary hearing process. It was decided that Mr Pidcock did have a reasonably arguable case. He was entitled to act consistently with that decision and argue it before us. We do not think that this is an appropriate case for awarding costs against him.