MR C A LOVETT v WIGAN BOROUGH COUNCIL [2002] UKEAT 1208_01_1608

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1208_01_1608

Case No Appeal No. EAT/1208/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C A LOVETTAPPELLANT

WIGAN BOROUGH COUNCILRESPONDENT

Before

His Honour Judge J R Reid

Date 16 August 2002

[1]APPEARANCES For the Appellant MR C A LOVETT The Appellant in Person JUDGE J R REID QC This is the Preliminary Hearing of an appeal by Mr Lovett who has presented his own case with great vigour and persistence against the decision of an Employment Tribunal held in Manchester in March, April and July 2001. The decision was eventually sent to the parties and entered in the register on 30 August 2001.

[2]This is a case which has had a fairly chequered past. It has been through the Employment Tribunal on a previous occasion, thence it came to the Employment Appeal Tribunal and went on the Court of Appeal. Following an Order of the Court of Appeal, which was made on 12 January 2001, the case went back for the re-hearing. It is against the decision of that re-hearing that Mr Lovett now comes to this Tribunal.

[3]The issue that Mr Lovett wants resolved turns out to be an extremely short one. The background history is this. In 1984 Mr Lovett obtained an HND in Chemical Engineering (there is a copy of the certificate at page 50 of our bundle). In fact, shortly after that the HND qualification was replaced by a BTEC qualification.

[4]At the end of 1989, or the beginning of 1990, the Respondent borough was in need of an Assistant Mechanical Engineer (Design). It advertised the post and on 29 January Mr Harrison, the borough Personnel Officer, wrote to Mr Lovett in these terms:

"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/SO1 (£8,967 - £13,824). This is a career graded post in which progression beyond Scale 6 is dependent upon your gaining the appropriate qualifications and experience. A commencement date will be arranged on the receipt of satisfactory results of your medical history."

[5]I should say that in the advertisement it had specified that:

"Applicants must have or be studying for a minimum qualification of an appropriate ONC or B Tech equivalent. Membership of an appropriate Institution would be desirable."

And then went on to deal with commencement salary.

[6]Mr Lovett's HND was the appropriate qualification for the purposes of application. The salary scale which Mr Lovett entered on had a bar on it which was dependent upon qualification. The point that arose in this case is whether or not he had a qualification to satisfy the salary scale bar.

[7]He asserted he was and has relied on paragraph 28 of the National Joint Council terms, which is set out at page 36 in our bundle. The relevant part of that paragraph, which is headed " Grading of Special Classes of Officers " is in these terms: 28 (a) "Posts for which the authority require officers who have passed the appropriate final examination (as accepted by the National Council and set out in Appendix A of this Scheme) who are either in the early stages of their careers since qualifying or being fully qualified are undertaking duties and responsibilities of the level envisaged by paragraph 26 (a) of this Scheme are to be graded by the employing authority either on Scales 5 or 6 or S.O.1 or on a combination of these grades (and progression therein) which can be justified in individual cases in relation to the work performed."

[8]The Appendix which we have, I think, at two places in the bundle, is Appendix A headed " LIST OF EXAMINATIONS RECOGNISED FOR PROMOTION AND APPOINTMENT PURPOSES " and in the table which follows it there are three columns:

" Awarding Body/Title of Examination " column 1; "

Stages of Examination " column 2 and; " Notes " column 3.

[9]The opening line of the appropriate box begins in column 1 "Engineering Institutions, Council of; Aeronautical Society, Royal Engineers, Institution of Civil Engineers…" and so on. The HND which Mr Lovett had obtained was awarded by Royal Aeronautical Society, the Institution of Mechanical Engineers, Production Engineers in conjunction with the Department of Education & Science, so it fell within that column.

[10]The " Stages of Examination " were identified as being "Parts I, II or appropriate Degree" and the " Notes " column reads as follows:

"The CEI awards the title of Chartered Engineer on completion of Part II (Professional Practice). Other constituent bodies in the CEI are: Engineers, Institution of Chemical Engineers, Institution of Gas Engineers, Institution of Mining Engineers, Institution of Production Mining and Metallurgy, Institution of Naval Architects, Royal Institution of The bodies listed in the left column were separately approved for qualification purposes before the formation of CEI."

[11]It is in this case common ground that the HND which Mr Lovett had was a qualification which exempted him from stage I of the examination. It did not exempt him from stage II. So he had got an exemption from Part I. He did not have an exemption from Part II because his HND did not give him that exemption. He could have passed Part II or he could have obtained exemption from Part II by having the appropriate degree and an appropriate degree for these purposes was an Honours Degree in the relevant subject. This, Mr Lovett, did not have.

[12]His argument is that, nonetheless, he was to be treated as qualified for the purposes of paragraph 28 because his qualification was one which was treated as qualifying and that was so because it was a qualification which had been approved before the time when the current Council came into existence.

[13]It may well be, it seems to us, that that was a qualification back in those days. The trouble is that, by the time he was appointed, the requirement for paragraph 28 was not simply to have something which would be recognised as a qualification. The requirement, as had been identified, was that he should have passed the appropriate final examination, as accepted by the National Council and set out at Appendix A of this Scheme and then that he should either be at the early stage of his career since qualifying, or being qualified, be undertaking of various duties.

[14]What he had not done was pass the appropriate examination. He had got a qualification which exempted him from the need to take Part I and, as such, he had a qualification which was awarded by a body listed in the left column, which was separately approved for qualification purposes before the formation of CEI. But, the problem is this: what the qualification gave him was exemption from Part I; it did not, as far as we can see, give him any qualification which got him out of Part II. It was not the appropriate qualification, as referred to in the appointment letter, nor could it be said to be a qualification which amounted to the passing of the appropriate final examination, as accepted by the National Council and set out at Appendix A of this Scheme.

[15]Mr Lovett has argued strenuously that when one looks at schedule at Appendix A what it says under the heading " Stage of Examination " is "Part I, II or appropriate Degree" and that any one of those is adequate and he stresses the word "or". He says one should read it as indicating that it is sufficient to have passed(a) Part I or

(b) Part II or

[16]We regret that we cannot read it in that way. What the column is doing is setting out the stages of the examination. It is not saying any one of these will do. It is requiring the passing of, first of all, Part I (which can be done either by taking an exam and passing or by obtaining exemption) and in addition, either the passing of Part II or the obtaining of exemption from it by the possession of the appropriate degree, which would be an Honours Degree (which I think these days might, for example, be represented by a B Eng (Hons.) or a variety of B Sc type Honours Degrees).

[17]We draw comfort for that by looking further down on the list where in other boxes " Stages of Examination " are set out. For example, "Environmental Health Officers Education Board Diploma: Intermediate, Final" and "Institution of Geologists: Associate, Member".

[18]It seems to us that what is being set out there in each case is the different stages of the examination and that the "or" between "II or appropriate Degree" shows a way of satisfying the need for Part II. No doubt an "appropriate Degree" also satisfies the "Part I". It is not providing 3 different ways in which one can satisfy the need for a qualification; by getting Part I or by getting Part II or by getting an appropriate Degree.

[19]This, we think, is the entirety of the dispute in this case. What it boils down to is whether the borough Council's interpretation of what the column mean is correct or whether Mr Lovett's interpretation of what the column means is correct.

[20]A great deal of time and effort has been put into this case, in particular by Mr Lovett, who has come from Saudi Arabia to be present here this morning. We have come clearly to the conclusion that, whether or not he would have been treated as qualified under whatever the equivalent of paragraph 28 was, back in the mid-1970's for example, by the time that he received his appointment the requirement was that he should have got, or be exempt from both Part I and Part II and/or had the appropriate degree, in order to be treated as qualified.

[21]That, in our judgment, not only is the meaning of the words in the Schedule. This ties in with the words used in his letter of appointment "upon your gaining the appropriate qualifications and experience" and with the use of the words in paragraph 28 "appropriate final examination since qualifying or being fully qualified".

[22]We are not in any sense decrying the valuable qualification of an HND but it was a qualification which qualified only in the sense that it qualified a person to avoid taking Part I and to be able to go only on to Part II. We appreciate that that decision, which Mr Lovett no doubt thinks is entirely wrong, will be a considerable disappointment to him but, it seems to us, that given the nature of this appeal and the short point of issue, it would be wrong to allow this matter to go further and it should be dismissed at this stage.