Briggs & Ors v Nottingham University Hospitals NHS Trust

This appeal raises a short point on the construction of a collective agreement, Agenda for Change (AfC), as set out in the NHS terms and conditions handbook. A new NHS pay system was negotiated at national level. The terms and conditions, which came into effect on 1 October 2004, are incorporated into individual contracts of employment. The construction point relates to premium payments. It matters to NHS employers generally and, in particular, where there are potential equal pay claims in which there may be an issue whether a premium, bonus or other addition to the basic pay of a predominantly male section of the workforce is objectively justified.

With limited exceptions, which are not relevant to the case, the AfC terms and conditions are standardised and apply to all staff directly employed by NHS organisations. The version applicable in this case is “Version 2, August 2007” as updated in October 2007.

The dispute is about the meaning of guidance in an implementation annex (Annex R) to the AfC. The guidance is “on the application of nationally agreed recruitment and retention premia.” The AfC explains that the Recruitment and Retention Premia (RRP) are additions to the basic pay of a post, or a group of similar posts, “where market pressures would otherwise prevent the employer from being able to recruit staff to and retain staff in sufficient numbers for the posts concerned at the normal salary for a job of that weight” (paragraph 5.1 of Part 2 Section 5 AfC). RRP is designed to deal with candidates who are in short supply and are difficult to recruit and retain in NHS jobs. An agreed Table 19 in Annex R lists 15 entries under the heading “Type of post.” According to the AfC, those posts attract RRP, because there is prima facie evidence that “a premium is necessary to ensure that the position of the NHS is maintained during the transitional period” (paragraph 46.47 Part 7 of AfC ). (It was held that nothing turns on the fact that they are said to be “transitional” arrangements: paragraph 4.3 of the judgment of the employment tribunal.)

The issue in the case is whether the type of post filled by the claimants attracts RRP. The claimants say that it does. The claim is that their posts fall within the meaning of “Qualified maintenance craftspersons” (QMC) who are 11^th in the list in Table 19. The claimants are “Maintenance Supervisors”: they supervise QMC. They say that their type of post is QMC. They are qualified as maintenance craftspersons and their responsibilities for supervision do not prevent them from being QMC. (A similar point arises on the inclusion in the Table 19 list of “Qualified maintenance technicians” (QMT). There is no distinction between the cases of QMC and QMT for present purposes, both being groups of craftworkers. To keep the judgment simple I will refer only to the case of QMC).

The supervisors’ claims are disputed by their employer, the Nottingham University Hospitals NHS Trust (the Trust). It denies that the claimants are QMC for the purposes of the AfC, pointing out that the post of “supervisor” is not among the types of post listed in Table 19. It says that the claimants are not QMC. They are supervisors.

The claimants brought proceedings in the employment tribunal (ET) for a declaration as to the terms and conditions of their employment. They claimed that they were not being paid what they were entitled to as RRP. That was an unlawful deduction from wages by the Trust contrary to the Employment Rights Act 1996 (the 1996 Act). The ET dismissed the claims in a judgment sent to the parties on 22 July 2008. The ET were divided on the result. The two lay members concluded that supervisors do not qualify as QMC within Table 19, as the job of supervisor is “fundamentally and qualitatively different” to that of QMC. They described the post of a supervisor as “a managerial post of a type that takes the holders outside the definition in Table 19.” (paragraph 6.1)

The Employment Judge disagreed. In a dissenting judgment he said that the ordinary meaning of QMC is “perfectly apt to include all professionally qualified maintenance workers, at whatever level, where that qualification is a requirement of the post” (paragraph 7.1). That ordinary meaning was not altered by any express contractual limitation in the AfC, or by the circumstances surrounding it.

On 29 July 2009 the EAT upheld the majority decision, pointing out that the lay members “invoked their own knowledge of the labour market.” (paragraph 16). In refusing permission to appeal, the EAT stated that the appeal had no real prospect of success and that there was no compelling reason for the Court of Appeal “to abandon the caution and modesty of its approach to a second appeal from specialist tribunals at first instance and appeal, the parties expressly relying on such specialist experience: Cooke v. Secretary of State [2002] 3 All ER 279.”

This appeal is brought with the permission of this court. The scope for reasonable differences of view on construction emerged again at the permission stage. Permission was refused on the papers on the ground that there was no reasonable prospect of persuading the Court of Appeal that supervisors, who were not listed in Table 19, fell within the category of QMC in the Table. On a renewed application permission was granted on the ground that the claimants had a real prospect of showing that they are entitled to RRP as QMC within Table 19.

The AfC involved a job evaluation study under which national job profiles were developed. Each profile was placed within the appropriate pay bands. Local employers then sought to match local jobs against a national job profile, which would place the local job in the relevant national pay band. There is no direct correlation between QMC and the labels used for national job profiles used under AfC.

In setting out terms relating to pay, the AfC dealt with the award of RRP on a national basis and at a specified level of payment where it was necessary for a particular group, because of “national recruitment pressures.” The negotiators of AfC agreed a list of jobs for which there was prima facie evidence that a premium was necessary “to ensure the position of the NHS is maintained during the transitional period.” In the case of QMC it was agreed that it was appropriate “to specify a single level of premium for staff who require full electrical, plumbing or mechanical crafts qualifications of £3,016 a year (from April 2007) rising to £3,406 from November 2007.” (paragraph 13 of Annex R).

The claimants’ local job title is that of “Maintenance Supervisor-Team Leader.” Each has responsibility for a particular designated area of expertise, such as “Mechanical”, or “Electrical”, for which they are required to have full qualifications. They were matched to the AfC job profile for “Estate Maintenance Worker team leader.” They supervise a team of employees with the local job title of “Maintenance Worker.” They were matched to the AfC job profile for “Estate Maintenance Worker.” The supervisors are in Band 5 of the AfC payscale. The supervised maintenance workers are in Band 3.

As well as supervising Maintenance Workers, the claimants deal with contractors, invoicing, ordering materials, organising jobs, going out on jobs, assessing them, doing those jobs and covering for absent Maintenance Workers and other supervisors. For example, the work sheets of one of the claimants, Mr Briggs, showed a pattern of frequently carrying out maintenance tasks personally (amounting to about 10% of his time) in his normal working time, though not every day and not as a major proportion of his working day. For 90% of his time Mr Briggs is engaged on administrative, managerial or supervisory tasks. The majority described it as a “managerial type post.”

The lay majority held that nothing turned on the reference to “Qualified” in QMC. They thought that the reference to “Qualified” served to define a sub-category of craft worker. They found no specific reference in the AfC to “Maintenance Supervisory staff” or supervisors of QMC being entitled to RRP. “If the negotiators had wanted to include supervisors they could easily have done so.” (paragraph 6.3)

The majority also took account of the purpose of RRP in dealing with concerns as to recruitment and retention rather than imbalance in pay and grade structures. They recognised that there might be a future problem if maintenance crafts persons are not prepared to accept promotion to supervisor if this in effect results in a drop in salary, but said that that was not an issue contemplated by the original RRP agreement and the remedy for the erosion of differentials was by internal dispute mechanisms or by an application for a separate RRP at local level.

The employment judge, on the other hand, concluded that the phrase QMC in its ordinary meaning is apt to include all professionally qualified maintenance workers where that qualification is a requirement of the post. There was no express provision in the AfC limiting the ordinary meaning such as was found in other parts of Table 19 in, for example, the reference to a midwife who is a “new entrant.” It would not have been within the contemplation of the parties that supervisors would be potentially worse off in pay than those they supervised.

The EAT agreed with the majority in the ET and found no error of law in their conclusion. Table 19 was a complete catalogue of the types of post that would attract RRP. There was no entry for supervisors of craftspersons. The result was not affected by the phrase in paragraphs 7 and 13 of Annex R referring to staff who require full crafts qualifications. The work done by the claimants was significantly different from the work done by those they supervised.

The EAT also held that the construction reached by the lay majority was in accordance with the background facts known to the negotiators, including the importance of the equal pay legislation.

The claimants’ submissions concentrate on the requirement in the AfC of necessary qualifications. Mr Short, who appears for them, submits that the absence of an express reference to the post of “Supervisor” in Table 19 does not rule them out for RRP. That approach wrongly assumes that the claimants are not QMC within the proper meaning of that term and it by-passes the necessary first step of determining what the type of post called QMC includes.

What does QMC, as used in the AfC, mean? In the absence of any express definition of QMC, reliance is placed on the ordinary meaning of QMC as including workers skilled in a particular craft and having the relevant qualifications. That, Mr Short says, is wide enough to bring within its scope all professionally qualified maintenance workers at whatever level. It does not exclude those with supervisory duties. An employee may be a qualified craftsperson, whether or not that employee has supervisory responsibilities. The claimants meet the description QMC. Their supervisory duties do not take them out of that description.

No express reference is made to seniority of QMC. The expression is not defined elsewhere, either in the AfC National Job Profiles, which were used in the national job evaluation exercise, or in job titles used locally, which are unlikely to define or determine the meaning of a term intended to be standardised nationally .

Mr Short contends that the AfC should be read as a whole. On that approach he relies particularly on the description of QMC in paragraphs 7 and 13 of Annex R as those “who require full electrical, plumbing and mechanical crafts qualifications.” He says that the claimants satisfy those professional qualifications. They are required to hold, and do hold, those qualifications. Further they were required, as an essential part of their supervisory role, to carry out “hands on work” on a regular basis. Falling within the definition of QMC is consistent with the purpose of RRP: to allow the NHS to attract and retain workers required to have particular skills and qualifications when there is a substantial market for such skills and qualifications outside the NHS.

Mr Short submits that there is no room for doubt that the claimants are QMC within the meaning of that term. There is nothing in the AfC to suggest that an employee who requires a full qualification is excluded from the definition of QMC because that employee also has supervisory responsibilities. Although their work is different, the claimants all require the full professional qualifications in their particular trades (City & Guilds and service of a recognised apprenticeship or equivalent). This is not simply a formality. The claimants are required to supervise other qualified staff and to carry out hands on work themselves. Though the level of that sort of work varies with individual claimants, it is an essential and not insignificant part of the claimants’ work for which they needed the skills and qualifications of those supervised by them.

The background to the negotiations of the equal pay legislation does not justify a construction that excludes the claimants from being QMC. There was no evidence in the ET that RRP can be objectively justified in the case of those who were supervised but not in the case of those who did the supervising. The equal pay point does not warrant disregarding the clear language of the AfC.

The arguments are finely balanced. The verbal description of the type of post in Table 19 as QMC is reasonably capable of being understood in either of the ways proposed by the parties.

On the one hand, it is reasonably capable of being understood in a natural and ordinary sense, as proposed by the claimants and accepted by the employment judge. In that sense a qualified craftsperson in the post of QMC supervisor is also QMC. The claimants who qualify as QMC do not cease to be qualified craftspersons on promotion to the post of a QMC Maintenance Supervisor.

On the other hand, the QMC entry in the Table is also reasonably capable of a narrower meaning and in a sense that does not describe a qualified craftsperson holding the post of a QMC supervisor. Being a supervisor is a different type of post, as indicated by its managerial responsibilities and by its different pay band, as well as by its absence from the list of 15 types of post in the Table. That meaning would be fatal to the claimants’ case that a QMC supervisor is QMC as well as supervisor.

Good points have been made in support of each side’s construction of the AfC. Which is to be preferred?

If the document is construed solely according to its language I would come down in favour of the construction adopted by the employment judge in his dissenting judgment. On its ordinary meaning, uninformed by context, the expression “QMC” includes craftspersons in posts with the required qualifications and would not exclude craftspersons with the required qualifications simply because they also have supervisory responsibilities. Employees with supervisory responsibilities over QMC still fit the description of QMC.

Another point for that construction is that the alternative construction produces a result that prima facie is unlikely to have been contemplated by those who negotiated the wording of the AfC: that a supervisor would, on promotion, lose the benefit of the RRP attracted by QMC and to that extent be worse off.

However, everyone is agreed that the expression “QMC” must be construed in context. What colour does context give to QMC? In my judgment the surrounding circumstances lend more support to a construction that the type of post called QMC does not include QMC supervisors such as the claimants.

The lay majority relied on various circumstances as indicating that the expression QMC has a narrower meaning than that of an employee with the required qualifications. The combination of circumstances surrounding the AfC have led me to the same conclusion as the lay majority in the ET. Although the lay members would not lay claim to special expertise in the construction of documents generally, they are well qualified by experience to identify and evaluate the circumstances that provide the context for a document such as AfC and affect its construction. I would be slow to differ from their informed assessment of the relevance and weight of the particular circumstances on which they relied in construing Table 19 in its context. Let us look at those circumstances.

First, the lay majority rightly looked to see whether “Maintenance supervisor” is the “type of post” included in Table 19. It is a list of “Type of posts.” Qualifications may be required for a post, but Table 19 is not a list of qualifications, or of qualified persons as such.

Secondly, the finding was that the post of supervisor was “fundamentally and qualitatively different to that of craftsperson.” It is a managerial post enjoying a different pay band and a different job description. The basic pay and the RRP are payments for a post, not for having a particular qualification as such. As supervisor is not the same post as QMC, nothing turned upon the use of the word “qualified.”

Thirdly, they concluded that, if the negotiators had “wanted to include supervisors they could easily have done so” by adding them as a separate category. There is support for this in other entries in the Table. Some other categories in the list of posts, such as “payroll team leaders” and “midwives (new entrants)”, make an express distinction as to seniority and do so because they readily equate with a known need to recruit and retain staff at a particular level. Supervisors were not singled out for inclusion in Table 19 in this way.

Fourthly, there is the context of the stated purpose of RRP, i.e. to address recruitment and retention needs. It appears that there was an absence of evidence of a national shortage of persons to fill the post of supervisors, though there was evidence of a local shortage of QMC which meant that supervisors had to do some of that QMC work. It would have been in the interests of the claimants to adduce evidence of a shortage of supervisors, if there was any, to bolster their contention that their post was intended to attract RRP.

Finally, there is the finding of the equal pay background to the negotiations. In the case of a challenge, the payment of RRP to a predominantly male work force would have to be justified. A premium paid to a work force that is predominantly male is liable to an equal pay challenge and may have to be objectively justified. The recipients of the premium would wish to see it justified. One possible justification is that the premium is required by non-discriminatory market forces (the need to recruit and retain qualified staff). It would have been in the interests of the claimants to bring forward evidence, if there was any, of the short supply of supervisors at the national level in order to explain the purpose of supervisors’ posts attracting RRP and the equal pay background to the negotiations for RRP. The only evidence mentioned in the ET judgment is some local covering of QMC work by supervisors.

In my judgment there was no error of law in the majority’s conclusion that, read in context, the QMC in Table 19 did not include the claimants as Maintenance Supervisors. It is a construction reasonably available on the wording of that entry and is supported by the surrounding circumstances.

I would dismiss this appeal on the ground that it has not been established that the ET decision was legally wrong. There was no error of law in the ET decision holding that a supervisor did not hold the post of QMC as entered in Table 19.

I agree.

I also agree.