MS D M WELLS v NORTH EAST LINCOLNSHIRE COUNCIL [2001] UKEAT 839_00_0510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 839_00_0510Case No Appeal No. EAT/839/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D M WELLSAPPELLANTNORTH EAST LINCOLNSHIRE COUNCILRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 5 October 2001
[1]APPEARANCES For the Appellant NICHOLAS RANDALL (of Counsel) Instructed by: Miss N Hunter Messrs Bridge McFarland Solicitors 19 South Saint Mary's Gate Grimsby N E Lincolnshire DN31 I I F For the Respondent PETER OLDHAM (of Counsel) Instructed by: Mr R Wilson North East Lincolnshire Council Legal Services Dept Municipal Offices Town Hall Square Grimsby North East Lincolnshire DN31 IHU MR JUSTICE LINDSAY (PRESIDENT) We have before us the full hearing of the appeal of Diane Mary Wells in the matter Wells v North East Lincolnshire County Council . Today Mr Randall has appeared for Ms Wells and Mr Oldham for the Council.[2]On 12 October 1999 Ms Wells lodged an IT1 for unlawful deduction from wages, under Section 13 of the Employment Rights Act 1996 . As a care worker, Ms Wells had been working shifts and she claimed that she should have received shift pay for working as she had done, but had never been so paid.[3]It was what one might call a homemade IT1, but later, as will appear, solicitors began to appear for her. Dealing with the original IT1, on 29 October 1999 it was met with an IT3 lodged by the Lincolnshire Council as to the case of Ms Wells, and others - because other cases were proceeding of a similar nature - and they denied that she had any entitlement to shift payments.[4]On 22 March 2000, there was a comprehensively amended IT1 served by the solicitors who had begun to act for Ms Wells and they set out the details of her complaint as it was by then framed:
"11. Details of Complaint 11.1 The Applicant has been employed as a Care Officer since 1993. Since April 1996 she has been working shifts as a Care Officer on the Community Support Team based at Heneage Road and subsequently (from 18.10.99) Hereford Avenue in Grimsby. 11.2 The Applicant works on a shift rota which has no discernible shift pattern. The shifts that the Applicant works are 7-2, 4-9, 3-10, 9-5, 2-10, 6-10. Care Officers are given a week's notice of the shifts that they will be expected to work. 11.3 The Applicant has a Contract of Employment which is expressly subject to the National Joint Council for Local Authorities' Administrative, Professional, Technical and Clerical Services Schemes of Conditions of Service (NJC) and Local Schemes of Conditions of Service. Under the NJC Part 38, employees of the Local Authority are entitled to allowances for: 1. Weekend working; 2. Night work; 3. Shift work; and 4. Irregular hours working. 11.4 These entitlements apply to those employees receiving salaries of point 28 or below on the Local Authority Salary scale. The Applicant falls into this category. The NJC also provides at Para 38 (3) (a) that an employee can have a simultaneous entitlement to the allowances, except for the specific combination of Night Work, Shift Work and Irregular Hours Working. 11.5 The Applicant in all the circumstances contends: (a) That she works weekends from time to time as part of her normal working week as defined in Para 38 (a) (a) of the NJC and that therefore she has a contractual right to be paid Weekend Working Allowance. (b) Further or in the alternative, the Applicant contends that she also falls under the definition of night work as defined in Para 38 (4) (b) of the NJC in that she may work part of her normal working week in the hours between 8.00pm and 6.00 am. (c) Further or in the alternative the Applicant contends that she is entitled to a shift work allowance under Para 38 (4) (c ) of the NJC. (d) Further or in the alternative the Applicant contends that she is entitled to the Irregular Hours Working Allowance under Para 38 (4) (d) of the NJC which applies where part of the normal working week falls outside the period I½, hours before and/or I½ hours after normal office hours. (e) That the Respondent, in failing to pay any of these allowances since September1996 has made Unlawful Deductions from her Wages contrary to Section 13 of the Employment Rights Act 1996"
So that is how the case, as it eventually went forward, was framed.[5]On 11 April 2000 there was a hearing at Hull; both sides were represented by solicitors and the hearing dealt not just with Ms Wells' case but with other cases as well. On 15 May 2000 the Decision was sent to the parties with Extended Reasons. The relevant part of the Decision itself was:
"That the Applicants' terms of employment does not [sic]include a contractual right to a shift allowance"
The course that had been taken at the hearing was explained by the Tribunal. In their paragraph 4 they said:
"4 During the course of the hearing the Applicant confirmed through her solicitor that her claim, although originally for four items being weekend working allowance, night time allowance, irregular hours allowance and shift allowance, was in fact ultimately limited to a finding as to the terms of employment post 1 April 1999 ie at the date of the Originating Application in October 1999, only in respect as to whether or not she was entitled to a shift allowance. It was conceded that she was not entitled to weekend working allowance or night work allowance and it was further conceded that the irregular hours allowance had ceased to be effective by 1 April 1999. 5 It was agreed by the parties that any findings as to the contractual terms prior to 1 April 1999 carried through as to entitlements after 1 April 1999 and had not been varied subsequent to that date."
[6]On 23 June of last year there was a Notice of Appeal received from Ms Wells and on 6 June of this year there was a Respondent's answer that said, by way of intended cross-appeal, this:
"The collective agreement known as RASC (Residential and Allied Staff Committee agreement) or the relevant part of it was, contrary to the Tribunal's finding, incorporated into the Appellant's contract of employment, the terms of which disentitled her from the allowance in respect of which her complaint was made."
The argument in the appeal requires a close look at some parts of the contractual documents and the first document to look at is one headed "Statement of Main Terms of Employment", a document as between Ms Wells on the one side and Humberside County Council, the predecessors of the Respondent, on the other; it was made on 20 August 1993.[7]The most important provisions that we need to bear in mind are first of all at clause 12, a box headed "Terms of Employment":
"Your appointment is subject to the Scheme of Conditions of Service as determined by the National Joint (NJC) for Local Authorities' Administrative, Professional, Technical and Clerical Services (APT & C) supplemented by the Local Scheme of Conditions of Service for APT & C Staff as agreed by the County Council and as amended from time to time. In accepting this appointment, you will be subject to the rules and regulations of the Authority. The National, Provincial and Local Conditions of Service, appropriate Departmental Procedures, explanatory Pension Booklet, Grievance and Disciplinary procedures, Statement of Maternity Rights and list of recognised Trade Unions are available for your inspection at: Your work base. Your contract of employment is governed by the terms of the above documents and you will be deemed to have a knowledge of and must act in accordance with them. Special Provisions: N/A"
Going on to the next box, 13, which in big print is headed "Allowances", it then says:
"This post carries the following allowance(s) at present: 5 days cycle allowance The County Council will from time to time review the allowance(s) which attach to this post. You should be aware that there is no guarantee that the allowance(s) will continue to be made throughout the period you are in post. The County Council will, after proper notice, withdraw allowance(s) in accordance with the current resolution where it is established that the allowance(s) is no longer appropriate."
[8]As for "Working Hours" which begins at box 14, it says:
"Your normal working week is one of 39 hours."
It continues:
"The circumstances in which extra hours of work may qualify for overtime payments are described in the NJC and Local Schemes of Conditions of Service. Your daily hours of work are: To be available to care for clients needs on any five days out of seven days per week including weekends and bank holidays/statutory/concessionary days. The hours of work will be variable and will normally be between the hours of 7.00 am and 11.00 pm but these times may vary to meet clients needs. Special Provisions: N/A"
I think that is probably all we need from those main terms of employment, and they were signed by Ms Wells on 20 August 1993. It is to be noted that box 13 says (with our emphasis):
"This post carries the following allowance(s) …"
It does not say:
"save for such, if any, allowances as are applicable to it by reason of the NJC Conditions or other conditions referred to in 12 above, this post carries the following further allowances" or anything of that nature. It does not even say, in simpler form, "this post carries the following further allowances"
. The definite article in Clause 13, in point of language, unless qualified elsewhere, purports, as it seems to us, to describe all allowances which the post carried - that is a first point.[9]The second point is that the Council is entitled to review:
" the allowances which attach to this post"
That would seem to make all allowances carried by the post reviewable, even those - if any - which attach by way of NJC Conditions, and, indeed, Mr Randall concedes that that is the case.[10]Thirdly, the absence of any guarantee that " the allowances" would continue, would seem to apply to all allowances, whether arising by way of direct main terms of contract such as, for example, the five day cycle allowance, or under the NJC Conditions. Again, Mr Randall concedes that that is the case. I would add, before we leave box 13, that the reference to "the current resolution" cannot be taken further; no one can identify what it was, or at any rate, cannot identify it at the moment.[11]Lastly, as a matter of general comment, as a broad principle of construction, if there is a conflict otherwise unresolvable between a general and a specific provision, there is an inclination, no more than that, in courts to regard the specific express provision as more likely to have represented the contractual intention of the parties than the general provision.[12]With those points in mind one therefore has to next turn to the NJC Conditions to ask whether they confer on Ms Wells an entitlement to shift allowances, and, if they do, looking at the contract as a whole, whether they confer the right to an allowance in terms such as, in point of construction, would seem to be intended to take effect, displacing the ordinary consequence of the definite article in the first line of Clause 13, which we have seen. We have not been given a complete copy of the NJC Conditions and we have not seen any provisions, if there are any, in the NJC provisions that deal with conflict between particular contracts arrived at by the parties and the NJC Conditions taken as a whole.[13]Of the terms of the NJC provisions which we have seen, the relevant terms begin at paragraph 38, headed "Allowances for Working Arrangements Other than Normal Office Hours". (1) GENERAL (a) Wherever possible the employing authority should discourage the use of working arrangements which involve the attendance of officers at their place of work outside the authority's usual working hours. However, where such working arrangements are unavoidable the officer shall be entitled to the appropriate allowances subject to, and in accordance with the following provisions of this Paragraph." We have already seen that Ms Wells' working arrangements do include hours that are outside, one would think, the authority's usual working hours, and that they are variable, and so therefore she, under the unqualified NJC terms, would seem, at first blush, to be entitled to allowances because the provision is that the officer shall be entitled to the appropriate allowances, but one then has to notice:
"subject to, and in accordance with the following provisions of this Paragraph"
That was 38(1) and so the first of the following provisions is 38(2) and that provides as follows: 38(2)…. (a) Normal Working Week. Where the arrangement is part of the normal working week and is required by the employing authority, then, subject to the terms of sub-paragraphs 2(c) and(d) and Note 2 below: (i) officers in receipt of a basic salary of spinal column point 28 or less shall have an entitlement to the allowances set out at sub-paragraph (4) (ii) in the case of other officers, the employing authority shall have discretion to pay the allowances at sub-paragraph (4) or to apply an inclusive salary to take all features of the job into account."[14]At this point a number of factual doubts begin to arise. The Note 2 which was referred to says:
"It is possible that some local authorities may employ a limited number of officers on work which requires attendance at the job on a variable basis. In such cases there should be determined a method of calculating payment which takes account of the terms of their working arrangements."
And 2 (c) says:
"(c) Application to Social Workers and Education Welfare Officers. Social workers and education welfare officers are excluded from the scope of this Paragraph, with the exception of the provision relating to "
Planned Overtime" payments as set out at sub-paragraph (2)(b)(v).[15]The doubts are as follows: social workers are altogether excluded from entitlement, as we have seen. Whether, as a care worker, Ms Wells is thus excluded, depends on the definition of "social worker" and we have not seen the NJC definition of "social worker". So far as we can establish (I should add that neither Mr Randall or Mr Oldham appeared below), the question was not investigated below; that is one doubt.[16]A second is that it could be, we say no more than that, that Ms Wells' salary is now on SCP 29, namely a higher than SCP28. There was a reference in the Employment Tribunal, in the evidence by a colleague of Ms Wells to, it would seem, her being paid at a maximum scale point of29. If Ms Wells was, in fact, paid point 29 or higher then she would have had no fixed entitlement, as we have seen, because in such a case the employer has a discretion whether or not to pay an inclusive salary, and again, this was a question that was not investigated below. We have already referred to note 2. We have seen also that Ms Wells is required to attend for work on a variable basis and note 2 suggests that there may in such cases be no fixed entitlement but rather that the matter is left for direct negotiation of the inclusive salary, something on those lines. But that, again, was not investigated below.[17]Thus we cannot conclude, on the facts as found , whether the NJC conditions confer on Ms Wells a clear or, indeed, any entitlement to a shift allowance and it is for that reason that Mr Randall asks us to look at the question simply as a matter of construction.[18]Before we do that, we would add that it is also unclear what shift payment would be payable, even if any was. Under the NJC provisions there are quite difficult-looking provisions for alternating shifts and for rotating shifts. They do not obviously apply to Ms Wells and the irregular working hours allowance depends on a number of factors which were not gone into and seems also to exclude regard to working at the weekend.[19]However, looking at the matter simply as a point of construction, the Tribunal said the Applicant was not entitled to shift allowance at any time during the course of her contract. That had been the practice in the way her remuneration had been paid throughout, i.e. she had never received a payment for shift allowance or any other allowance referred to in paragraph 38 of the NJC. The Tribunal came to that view because they took that view that in item 13, which we have earlier been calling clause 13, there was a reference to allowances, and they said:
"The Tribunal interpreted that as exclusive of any other allowances. It does not say that it was an additional allowance, it does not refer to any other allowance, it makes no references to any allowance under the NJC"
[20]Mr Randall argues that it is notable that the five day cycle allowance in clause 13 is not an NJC allowance and so had to be mentioned in the contract if it was to be payable at all. We entirely agree, but one cannot jump from the fact that there is one allowance that would not have been payable had it not been expressly mentioned to a conclusion that there are therefore other allowances payable despite their not being expressly mentioned.[21]He also argues that the Employment Tribunal's construction renders clause 12 of the basic contract as surplusage. We cannot accept that. The Employment Tribunal was dealing only with allowances; there are plainly very many areas where the NJC terms prima facie apply. Clauses 14, 15, 20 and 23 of the basic contract make reference to some of them. Where there is nothing whatsoever in the express basic contract to disapply the NJC terms in issue, then the NJC terms will apply by reason of clause 12. Clause 12 was not surplusage, it has an important function. Mr Randall, in his written argument, mentioned the contra preferentem rule, but as Mr Oldham argues and as Mr Randall concedes, it is a last ditch solution when no other ordinary principle of construction has furnished an answer; we do not see this to be such a case.[22]Mr Randall concedes that if clause 13 had said "This post carries only the following allowances", then the Employment Tribunal's construction would have been correct. For our part, we see the provision of clause 13 as clear enough, even without the word "only". It sets out to say what allowances are carried by the post, it was not left blank.[23]The parties, in other words, turned their minds to what were the allowances to be carried, and they specify only the five day cycle allowance. Even if, on the facts (were they to be established) some shift allowance under the NJC provisions would otherwise have been payable, we regard clause 13 as sufficient to exclude that allowance. It is not a question, as Mr Randall argues, of clause 12 bringing in an entitlement which is then thereafter to stand, unless clearly contradicted by some other provision. Rather the contract has to be looked at as a whole; what is the contractual intent properly to be derived from the contract as a whole? For the reasons we have given, that totality, in our judgment, specifies as the allowance payable, the five day cycle allowance and no other is specified and therefore the appeal is to be dismissed.[24]We mention that there was a cross-appeal. We have not yet heard argument upon it. Mr Oldham in his Skeleton argues that if he succeeds on the appeal, as he has done, then there is no need for us to deal with the cross-appeal. Accordingly, unless Mr Randall disagrees with that analysis by Mr Oldham, we propose to say nothing as to the cross-appeal.