APPEARANCES
| For the Appellant |
MS HELEN STEEL
(The Appellant in Person) |
| For the Respondent |
MR JAKE DAVIES
(of Counsel)
Instructed by:
London Borough of Haringey
Corporate Legal Services
9th Floor, Alexandra House
10 Station Road
London
N22 7TR |
SUMMARY
UNLAWFUL DEDUCTION FROM WAGES
The Claimant brought a claim under Part II ERA. She relied on a job evaluation which she said entitled her to a certain level of pay. The Employment Judge ruled that the claim was in effect a claim for damages and so outside the jurisdiction given by Part II. Although the basis of her claim was ambiguous, a sufficiently clear basis of claim to an existing entitlement had been advanced so as to bring it within the jurisdiction (at least on that basis) and the appeal succeeded to that extent.
HIS HONOUR JUDGE SHANKS
- This is an appeal by the Claimant, Ms Steel, against two rulings of Employment Judge Pettigrew made in a judgment sent to her on 31 May 2011. The first ruling was that a claim made by Ms Steel against her employer, Haringey, was outside the jurisdiction given to the Employment Tribunal by Part II of the Employment Rights Act 1996; the second ruling related to the proper interpretation of a collective agreement made between Haringey and local government unions in September 2008 which was incorporated into her employment contract. It is necessary to describe the factual background and the course of the proceedings before the Employment Tribunal in a little detail in order to understand the appeal.
Factual background
- Ms Steel was appointed by Haringey as a gardener/groundsperson with effect from 22 May 2006. Her terms of employment were recorded in a letter dated 10 April 2006 which stated that she was grade 3 (for which the basic salary was £13,902) and that she was also entitled to a £2,200 productivity bonus and a £1,236 performance bonus, giving a total starting salary of £17,338. It was also recorded that her contract was subject to amendments negotiated through national or local collective bargaining.
- In 2004 the local authority associations and recognised trade unions had agreed to introduce "single status" salary schemes involving the harmonization of pay scales for administrative and manual staff. This process was continued at local level and over a period of more than two years Haringey negotiated with local union representatives on an equal pay and conditions package covering grade structure, job evaluations, reviews and appeals, pay protection and other contractual provisions.
- According to the evidence in her witness statement at paras 9 to 11 Ms Steel became shop steward for the Parks East Area in 2006 and in that capacity attended regular meetings with management at which the progress of "single status" in Haringey was discussed and at which the impression was given that gardeners would receive more money on implementation. Her evidence was that on 22 February 2008 she attended a briefing for Parks and Garden staff on the "single status" proposals and how they would affect staff at which Steve Davies, Haringey's Head of HR, and the Head of Parks both spoke and that in the course of the briefing the staff were told that the grade 3 gardener jobs "
had been evaluated as scale 4, which would result in an increase in pay". This evidence is not referred to in the judgment but at para 4.4 the Judge made a finding of fact, presumably on the basis of evidence in Mr Davies's statement, that a "benchmark" evaluation process had been carried out for a number of jobs including the gardener's post which had been evaluated at scale 4 under the proposed "single status" scheme and that this exercise was done "
in order to test and exemplify the potential outcomes of the harmonization exercise."
- In June 2008 Mr Davies wrote to union members in these terms:
"Vote YES for new Haringey council pay and conditions
We briefed you recently about discussions that have taken place over the last two years with your union representatives on changes to harmonise the pay and conditions of former manual and officer staff. This is in line with the national agreement on "Single Status".
Following lengthy discussions with your union officers at both local and national level we have reached agreement on a package and your union is now sending you a ballot to vote in favour of the package.
Outlined below is more information about how your terms and conditions will be affected.
Job evaluation and re-grading
We have agreed to use the Greater London Provincial Council [GLPC] job evaluation scheme to evaluate all jobs. We will evaluate your job descriptions to determine the grade you should be on. We have already jointly evaluated many jobs with your union representatives and this shows that:
- All manual graded workers [this included Ms Steel] get a pay grade increase. This will be backdated to 1 April 2007
- Other staff such as Care Managers
will be evaluated soon
- Of the remaining staff other staff on PO2 grades will be evaluated during this year
"
- Ms Steel in her capacity as a shop steward emailed Mr Davies on 19 June 2008 asking for clarification on behalf of certain workers of future grades when single status was implemented. His reply of 25 June 2008 stated:
"Benchmark job evaluations were undertaken on Gr2 and Gr3 gardeners. This put
GR3 gardeners on Sc4 spine pt 18 from 1/4/07 and sp 19 on 1/4/08.
Grade 5 gardeners were not evaluated but it is likely they will also be on Sc 4 the same as GR3 gardeners. This is not definite so I don't state this as a final position. Even if Grade 5 gardeners are put on Sc4 and not anything higher they would still be better off than at present."
- No doubt following a positive vote by union members, final agreement was reached between Haringey and the unions. The terms of the collective agreement are recorded in a document headed "Final Pay & Conditions offer agreed with unions" which is dated September 2008. The following are relevant terms:
"1. Package arrangements
.... The implementation date of this Agreement is 1 April 2007 unless otherwise stated.
2. Pay Structure
A proposed pay structure is attached at Appendix A
[Appendix A was headed "Pay rates with effect from 1 April 2006" and included under the heading "Current Main Grade Structure" Ms Steel's GR3 basic salary of £13,902 and under the heading "Proposed Pay Structure" a new scale 3 ranging from spinal point 14 (at £16,440) to spinal point 17 (at £17,475) and a new scale 4 ranging from spinal point 18 (at £17,787) to spinal point 21 (at £19,632)]
4. Job Evaluation Proposals
The new GLPC job evaluation scheme will be used to evaluate all jobs evaluated after the date of this agreement.
HR advisors will conduct the evaluations [my emphasis] but we will send the results to the unions in advance of releasing the result to staff. This will give the unions the opportunity to query any job evaluations that might arise
It will also help to reduce the number of job evaluation appeals
Following the initial job evaluation on the GLPC job evaluation scheme the practice that will apply is that the HR advisors will conduct the evaluations and then notify the manger of the result
Phase 1
Phase 1 will evaluate all Manual graded jobs [these included Ms Steel's]
The effective date of these regrades will be 1 April 2007.
Phase 2 and 3
the Council intends to deal with the job evaluation of the following staff groups on a different timetable to those staff identified above.
The proposed timetable and groups of jobs are identified below.
[The timetable includes "Remaining Sc1-6 jobs" and states that they will be evaluated "During financial year April 2008 to March 2009" and PO3-PO8 jobs which will be evaluated during the financial year 2009/10]
Where job evaluations are undertaken earlier than the scheduled timetable the effective date of regrade will be dependant upon when the evaluation date falls. For example, if a PO3 job is evaluated in June 2008 it will be effective from June 2008 [my emphasis]
6. Job Evaluation Appeals
Appeals should be submitted within 10 working days of the grade notification to employees
7. Assimilation Arrangements
[1] It is proposed that where jobs are evaluated using the GLPC scheme and the Haringey price tag that they be put onto a minimum point on the new grade in the pay structure that is at least equal to their previous pay grade increment.
[2] Where the new basic pay exceeds the old total pay-basic pay plus allowances (but excluding overtime)-those allowances that have been agreed to go
will cease to be paid.
[3] Where an evaluation results in a loss of pay the individual will be put on the top spine point of the grade
[4] Where the new basic pay does not exceed the old total pay, the allowances that have been agreed to go will still cease but appropriate compensation/transition arrangements will apply
"
- In October 2008 Mr Davies wrote to Haringey staff notifying them of the changes to their terms of employment following the agreement with the unions and outlining information as to how their terms and conditions had changed. Under the heading "Job evaluation and re-grading" the letter stated:
"We have agreed to use the GLPC job evaluation scheme to evaluate all jobs. We will evaluate your job descriptions to determine the grade you should be on. We have already jointly evaluated many jobs with your union representatives and this shows that
- All manual graded workers get a pay grade increase. This will be backdated to 1 April 2007. We aim to make these grade adjustments to your pay in December 2008
"
- On 12 August 2009 Ayse Isiktan (a Haringey HR consultant) emailed Nicola Mathieson (a member of the HR Employment and Strategy Team) stating:
"Nicola
Have updated the spreadsheet/separated the mgmnt suggested grade from HR evaluated grades [The attached spreadsheet lists Ms Steel among others and shows her under a column headed "HR Evaluated Grades & Sp pt as at Apr 09" as "SC4/20" and under a column headed "Management Estimated Grades" as "SC3/17"]
Those that I have highlighted
show that there is inconsistency between the Gardener grades that mgmnt have changed ie HR evaluations resulted in
Gr 3 & Gr 5 Gardeners being a Sc4
[w]here as majority of Gr1, 2, 3, 5 Gardeners here on the spreadsheet have been changed to Sc3; mgmnt need to be clear what they want and how they wish to differentiate the levels/hierarchy of each group of Gardeners?"
On 2 September 2009 Ms Mathieson emailed Lewis Taylor (who I was told was Head of Parks) stating:
"As requested, below is a summary of our discussion today regarding the possible way forward with the Parks Single Status implementation:
1. That all gardeners/ground persons who are on manual grades 1-4
will be placed on one job description which is estimated to be evaluated on scale 3 (you will provide me with this Job Description for evaluation)
"
- I interpose some observations about these two emails. As I describe further below, they were disclosed to Ms Steel for the first time in the course of the proceedings on 21 April 2011. Although they were in the bundle of documents prepared for the Employment Tribunal and were referred to at the hearing by Ms Steel there is no mention of them in the judgment. However, as I indicated during the hearing of the appeal, they cause me some disquiet as they not only appear to confirm Ms Steel's case that she had been evaluated by HR at scale 4 but also to show that the management at Haringey may have been seeking to manipulate the process in order to avoid the consequences of HR's evaluation (though I stress that Haringey have not had a proper opportunity to answer any such allegation).
- According to Ms Steel's witness statement at paras 19 to 23 she attended a committee meeting on 4 September 2009 which caused her to email Mr Taylor later that day stating: "We have always been told that our wages would increase with single status
Gr 3 gardeners should be/were (my emphasis) evaluated to be on scale 4 rather than the scale 3 set out in the briefing paper this morning". She received no answer to that email but on 18 September 2009 she and other staff were handed the results of job evaluations said to have been carried out on 9 September 2009 along with new job descriptions; it seems that Ms Steel's job was shown as scale 3 and this position was confirmed following a series of appeals and grievances. The Judge does not address this evidence at all save to state at para 4.13 that her "
job was evaluated at Scale 3, and confirmed at that grade after appeal."
- On 15 October 2010 Haringey provided Ms Steel with a payslip which, as I understand the position, recorded her as being on the new scale 3 for the first time, recalculated her pay from 1 April 2007 accordingly and provided for a balancing payment taking into account the compensation/transition arrangements referred to in clause 7[4] of the collective agreement set out at para 7 above.
The course of the proceedings
- Ms Steel brought the claim which gives rise to this appeal on 31 December 2010. In her ET1 she referred to the payslip dated 15 October 2010, complained that it lacked a proper breakdown [this was taken as a complaint under sections 8 and 11 of ERA which was left over by the Judge] and then stated:
"I have been underpaid for the following reasons:
[1] Prior to voting for the Pay and Conditions Package in 2008 I had been informed by email dated 25 Jun 2008 from the Head of Human Resources that Gardener Gr3 (my job) had been evaluated as Spinal Point 18
from 1/4/07 and Spinal Point 19 from 1/4/08 Scale 4. This information was repeated in other documents and at meetings.
[2] The Single Status/Equal Pay and Conditions Package agreement dated Sept 2008 states that "Where an evaluation results in a loss of pay the individual will be put on the top spine point of the grade." The subsequent evaluation of my job as Scale 3 resulted in a loss of pay from April 2007 to April 2010 while I was on SP 14, 15 and 16, yet I was not put on the top spine point of that grade (SP 17) in line with the agreement.
[3] [relates to specific figures; also left over by the Judge]."
I will refer to [1] and [2] as the first and second claims respectively. It is clear (and part of Ms Steel's case) that if she were to succeed on the first claim, the second claim would become irrelevant. Attached to her ET1 was a Schedule of Loss which compared the wages she was in fact paid after 1 April 2007 with what she would have received had she been placed on scale 4 spinal points 18 to 21 (on the basis of the first claim) or on scale 3 spinal point 17 (on the basis of the second claim). The detailed figures in the Schedule have not been investigated at all and although Mr Davies sought to demonstrate that in fact no loss had resulted either way he recognised that it would not be possible for this Tribunal to reach any concluded view to that effect.
- Haringey's grounds of resistance ran to 36 paragraphs setting out the history from 2006 to October 2010. Of significance for present purposes are the following points:
(1) Para 13 of the grounds referred to the email of 25 June 2008 which I mention above at para 6; it was accepted that Ms Steel had been informed that benchmarking evaluations had been carried out which put grade 3 gardeners on scale 4 spinal point 18 from 1 April 2007 and spine 19 from 1 April 2008 but the paragraph went on to say that Mr Davies had advised her that "this is not definite so I don't state this as a final position". The clear impression given by the grounds of resistance here is that those words related to Ms Steel's grading; as the quotation set out in para 6 above shows, this is not an accurate reading of the email at all: the words in question are clearly referring to the evaluation or re-grading of grade 5 (not grade 3) gardeners. In para 14 of the grounds of resistance Haringey continued "
the Respondent submits that this was intended to be an indicative grade only following the benchmarking job evaluation exercise, the purpose of which was to provide an initial point of reference at which grades were likely to be assessed at."
(2) In relation to the second claim, para 19 of the grounds of resistance raised a point to the effect that the provision relied on by Ms Steel (see clause 7[3] of the agreement set out in para 7 above) did not apply to her because she was not "assimilated"; in further and better particulars served in reply to a request by Ms Steel this statement was said to be an error.
(3) At para 21 of the grounds of resistance (following para 20 which dealt with October 2008) there was reference to a letter dated 16 February 2010 (which I have not seen) advising Ms Steel that "
she would be placed on Scale 3 Grade 3 (sic)
"; there is no reference to any of the events in 2009.
(4) No point on jurisdiction was taken in the grounds of resistance (or at any stage up to the hearing).
- There was no form of directions hearing. On 18 February 2011 the parties were notified that the claim had been listed for a three hour hearing on 13 May 2011 and the Tribunal gave certain directions of its own initiative including that the parties give disclosure of documents relevant to any issue in the case by 18 March 2011. Haringey gave some disclosure on 21 March 2011. On 5 April 2011 Ms Steel requested a large number of further identified documents which she said were relevant to the issues in the case. On 17 April 2011 she wrote to the Tribunal requesting an order for disclosure of specific documents. It seems that that request was never really considered by the Tribunal but on 21 April 2011 Haringey did make disclosure of about 1,000 additional pages of documents including the emails from August and September 2009 to which I refer in paras 9 and 10 above. Ms Steel maintained at the hearing before me that Haringey's disclosure was still inadequate and I think that may well be the case.
- Although they were not ordered witness statements were produced on both sides in advance of the hearing. Haringey provided a witness statement dated 9 May 2011 from Mr Davies. At para 13 he referred to a benchmark evaluation being carried out in respect of Ms Steel's job in February 2007; he said this was purely an indicative grade and that the final grade would only be determined after the "actual job evaluation". In para 20 he stated that the process following the agreement of September 2008 "
allowed for amendment of the job descriptions by management and further evaluation before notification of the final result"; as far as I can see, there is no reference to this evidence in the judgment and it is not reflected anywhere in the collective agreement. Mr Davies also stated that he was not involved in the carrying out of the job evaluations and stated they were carried out by Ms Mathieson and Ms Isiktan (the two HR staff whose names feature on the emails I refer to at paras 9 and 10 above). At para 22 and 23 he baldly stated that Ms Steel's job was first evaluated on 9 September 2009, that the evaluation was finalized on 20 January 2010 and that the result was that she was evaluated at scale 3.
- Ms Steel's witness statement was dated 13 May 2011. I have already referred to most of the relevant parts. At the end of her statement Ms Steel stated:
"[53] In summary my case is that if the single status agreement or grievance procedures had been followed correctly, I and other gardeners would have been put on scale 4.
[54] If I am wrong on this, Gardeners should still have been put on the top spinal point of the grade in accordance with the agreement."
- The hearing took place on 13 May 2011. Ms Steel represented herself, as she did before me. It was apparent to me that Ms Steel is intelligent and capable of making cogent representations both orally and in writing; nevertheless I accept that the proceedings as a whole and the hearing before the Employment Tribunal in particular would have been confusing and rather daunting for her. The parties and Judge Pettigrew have each given accounts of what happened at the hearing; apart from differences of emphasis which no doubt result from the different perspectives of the participants it does not seem to me that there is much dispute about it. It is common ground that it was the Judge who raised the question of jurisdiction and the Delaney and Coors cases to which I refer below at the outset of the hearing of his own motion; I accept Ms Steel's assertions that she had no opportunity to consider those cases and that, when it came to submissions, she did not feel able to deal with the point at such short notice. Mr Davies gave evidence first and it seems clear that the Judge, having reached a certain view of the case in the light of the jurisdiction point, was somewhat impatient with Ms Steel's cross-examination of him and that (in the Judge's own words) when she started asking Mr Davies about the August 2009 email referred to at para 9 above he "
indicated that [he] would not intervene further to assist the Claimant to pursue a relevant line of cross-examination, but that she was in danger of wasting the time she had available." It is common ground between Haringey and Ms Steel that the Judge indicated that unless she could show him a document sent to her after the collective agreement came into effect stating that her job had been evaluated at scale 4 he was not willing to open up the question of whether it had been evaluated at scale 3 or scale 4. I accept that from Ms Steel's point of view the Judge's approach was unhelpful and rather intimidating and that she did not feel that she was able to present her case fully.
- Following the hearing the Judge ruled that he could not entertain the first claim and ruled against Ms Steel on the interpretation point raised by her second claim in the reserved judgment sent to her, as I have said, on 31 May 2011. She appealed against the judgment on 12 July 2011 and on 5 January 2012 Judge Birtles allowed in part an application under rule 3(10) so that the appeal has proceeded to a full hearing on both those rulings. I turn to the appeal in relation to the first claim.
The first claim
- Having set out various findings of fact and the relevant sections in Part II the Employment Rights Act 1996 the Judge described his understanding of the basis of Ms Steel's first claim in his judgment as follows:
"[6.1.1] The [September 2008] Agreement did not reflect information and assurances given
during the course of negotiations that led to the making of the agreement between Haringey and the recognised trade unions.
[6.1.2] Her job had been evaluated as part of the benchmarking process and it was the outcome of this process which prescribed what a new scale should be."
He then referred to the Delaney and Coors cases and ruled in para 6.4 that neither basis of claim could be entertained. At para 6.5 he set out an additional reason for rejecting the [6.1.2] basis of claim based on his interpretation of the collective agreement. I consider the jurisdiction issue first.
- The starting point in relation to jurisdiction must be the relevant provisions of Part II of the Employment Rights Act 1996:
"13. (1) An employer shall not make a deduction from wages of a worker employed by him
(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion
the amount of the deficiency shall be treated
as a deduction made
on that occasion
23. (1) A worker may present a complaint to an employment tribunal -
(a) that his employer has made a deduction from his wages in contravention of section 13
"
- As the Judge rightly said the relevant case law on jurisdiction is to be found in Delaney v Staples [1991] IRLR 112 and Coors Brewers Ltd v Adcock [2007] IRLR 440 (I have been provided with the reports in IRLR because those are the ones cited by the Judge, who presumably had them available at the Tribunal). I was also referred by Ms Steel to an apparently unreported case in the High Court called Paul Smith v Chelsea Football Club plc which itself quoted from a case in this Tribunal called Lucy v British Airways. It seems to me that the law is clear and that recitation of passages from these decisions is unnecessary. A claim is within the jurisdiction provided by Part II if it is for an identifiable sum of money properly payable in connection with a worker's employment on a particular occasion. It is not within that jurisdiction if it is properly categorised as a claim for damages for breach of contract or some other obligation, even if the claim clearly arises in connection with a worker's employment (eg a claim for damages for personal injury suffered at work or for wrongful dismissal or other breach of an employment contract). Although Part II is essentially designed to provide a swift and summary procedure for straightforward claims where the employee can point to a quantified loss, a claim within the jurisdiction may nevertheless throw up substantial issues of fact (including as to quantification) which the Employment Tribunal must, if necessary, resolve.
- It is quite clear that the basis of claim described by the Judge in his para [6.1.1] would not have been within the Part II jurisdiction: if anything it would be a claim for damages for some kind of misrepresentation. But Ms Steel's position is that that was not the claim that she was making; her claim, she says, is and always was that her job was in fact evaluated by HR at scale 4 and that, in accordance with her contract of employment as amended by the collective agreement made in September 2008, that entitled her to be paid accordingly as from 1 April 2007. I would add (although this has not really been articulated I think) that, since the adjustments following the evaluation exercise were in fact made under the payslip dated 15 October 2010, she was able to point to that date as the date of the relevant deduction. It seems to me that such a claim, whatever factual and other legal issues it might raise, is within the jurisdiction of Part II.
- Mr Davies, counsel for Haringey (but no relation to the Head of HR), argued strongly that that was not the claim that Ms Steel was making; he said that in reality she was complaining that assurances she was given about the outcome of the evaluation were not honoured and/or that the process had reached the wrong result in putting her on scale 3 rather than scale 4, rather than saying that she had been evaluated at scale 4; it seems to me that if he is right in that respect then her claim would be categorized as a claim for damages for misrepresentation or some kind of breach of contract and that, notwithstanding that the point was not taken by Haringey until raised by the Judge, there would indeed have been no jurisdiction to entertain the claim under Part II.
- It is therefore necessary to consider what claim she was in fact making. Looking at the whole picture (and in particular the email of 4 September 2009 to which I refer at para 11 above, the wording of para [1] of her ET1 to which I refer at para 13, and the contents of her witness statement, including para [53] to which I refer at para 17 above), it seems to me that the position was undoubtedly somewhat ambiguous but that nevertheless, Ms Steel had made it sufficiently clear to the Judge that she was saying that there had been an effective evaluation at scale 4 which entitled her to be paid accordingly (even if she was also making an alternative claim based on the proposition that there ought to have been such an evaluation, the latter claim being outside the Tribunal's jurisdiction). Indeed, it seems from his para [6.1.2] that the Judge himself understood that that was what she was saying (although she would not, as I understand her position, have put the claim in the terms he did at para [6.1.2], in particular with his reference to "benchmarking"). I therefore consider that the Judge was wrong to find that the first claim could not be entertained for lack of jurisdiction. I turn to consider the reasoning in the Judge's para 6.5 and the arguments put forward by Mr Davies dedicated in effect to showing that a claim based on the notion that there was an existing and effective evaluation at scale 4 was unsustainable.
- As I understand the Judge's reasoning at para 6.5 he is saying that a claim based on an existing evaluation at scale 4 was bound to fail because the only candidate for such an evaluation pre-dated the making of the collective agreement and was part of a "benchmarking exercise". That proposition is based on a series of factual findings by the Judge (relating among other things to the meaning and significance of the phrase "benchmarking exercise") which in my judgment cannot stand given (a) the course of events I have described in para 18 above (b) the Judge's failure to take account of (or at least to address) evidence and documents produced by Ms Steel as I have described in paras 4, 10 and 11 above and (c) that the Judge took the course (wrongly in my judgment) of dismissing the first claim in limine on jurisdictional grounds. But in any event I think the Judge was wrong as a matter of law to conclude that an evaluation made before the collective agreement was finalized could not be binding following its adoption. Although the words from the collective agreement quoted by the Judge ("Phase 1 will evaluate all manual graded jobs" (my emphasis)) certainly indicate that an effective evaluation could only take place after the agreement had come into force, consideration of the agreement as a whole against the factual background makes it quite possible (indeed likely in my view) that the contractual intention was that evaluations already carried out as at September 2008 would be effective for the purposes of the agreement: there is obviously no reason in principle why this should not be so; it would be entirely consistent with what Ms Steel and her colleagues were told at the time; and, most tellingly, the provisions in the agreement dealing with Phases 2 and 3 which I have quoted at para 7 above make it clear that the agreement contemplated that there would be job evaluations which would be effective for the purposes of the agreement which were expected to have been carried out before September 2008; as for the Judge's point about rights of appeal, there is nothing in the agreement that I can see to stop an appeal being made against an evaluation made before but notified after the agreement had been finalized.
- Before leaving the first claim I should mention that Mr Davies also referred a number of times in his submissions to the fact that Ms Steel had appealed and raised grievances against the scale 3 evaluation as an indication, I think, that she must be taken as accepting that evaluation as being the effective evaluation for the purposes of the agreement. I have not seen any of the papers in relation to the appeals and grievances but in any event it seems to me that whatever she argued in those processes cannot stop her arguing a claim before the Tribunal on the basis I have identified; nor do I think she can be legitimately criticised in all the circumstances for seeking to make alternative cases both that she had been evaluated as scale 4 and that she ought to have been so evaluated.
- In my judgment, then, Ms Steel had an arguable claim that her job had been evaluated at scale 4 and that she was entitled to be paid accordingly with effect from 1 April 2007, that claim was within the jurisdiction of the Employment Tribunal and she ought to have been allowed to present it properly. There may well be a number of factual and legal issues arising from it which, if the parties so require, will need to be considered by the Tribunal on their merits.
The second claim
- As I have indicated this claim is contingent on Ms Steel failing on the first claim. It depends on the proper construction of clause 7[3] of the collective agreement which I have set out in para 7 above.
- Ms Steel's position is quite simple: evaluation at scale 3 (if that is what happened) resulted in a "loss of pay" because her existing contractual salary (£17,696 in 2007) was greater than the salary at the relevant spinal point in scale 3. Under clause 7[3] she should therefore have been put on the top spinal point of scale 3, namely spinal point 17.
- The Judge interpreted clause 7[3] in effect as if the word "basic" appeared in front of the word "pay." He interpreted the clause in this way, he said, not by reference to any factual background to the agreement but simply by reference to the words of the agreement, because he considered that Ms Steel's interpretation of clause 7[3] would present an apparent anomaly in the light of clause 7[4] and because "evaluation" is a process that determines the scale on which a job is placed which itself determines "basic" pay.
- I do not think the Judge's reasoning can be supported. Without some factual context there is no reason to consider clause 7[3] anomalous at all. It is possible to imagine cases where clause 7[3] as construed by Ms Steel would give a better financial result for the employee (as in her case) and others where clause 7[4] would give him or her a better financial result; this may well have been the intention of those making the agreement. In any event, for all we know, the particular spine point assigned may have consequences other than purely immediate financial ones so that clause 7[3] as construed by Ms Steel would have a purpose even if clause 7[4] did inevitably give a better immediate financial result to the employee. As to the Judge's point that "evaluation" is a process which impacts on "basic" pay only, that assumes that there was any process of evaluation at all before the new arrangements came into force which is not an assumption I would be inclined to make. It seems to me personally that Ms Steel's favoured construction is more consistent with the "ordinary meaning" of the words of clause 7[3] than Haringey's is.
- I therefore allow the appeal in relation to the second claim. Although it would be open to me to substitute a ruling of my own as to the proper interpretation of clause 7[3], I have decided, particularly in view of the fact that the first claim is to be remitted to the Employment Tribunal, that it would be better if this issue too was remitted and the parties allowed to put before the Tribunal any evidence of background circumstances or new arguments they wish before the point is decided one way or the other.
Disposal
- I therefore allow the appeal in relation to both rulings and order that the case be remitted to the Employment Tribunal to consider the arguable claims that I have identified at paras 28 and 30 above. Ms Steel asked that if her appeal succeeded the case should be remitted to a different Tribunal Judge and Mr Davies (albeit somewhat reluctantly) accepted that that would be the sensible course and I will so order. It would also be a good idea I think if there was a case management discussion to consider any further directions (in particular in relation to further disclosure and witness statements) and if the outstanding matters from the hearing on 13 May 2011 were dealt with at the same substantive hearing as the remitted matters.
