George v The Ministry of Justice

This appeal is by the claimant, Thomas George. The defendant/respondent is the Ministry of Justice (‘the Ministry’). Mr George appeals against the order made by His Honour Judge Graham Wood QC in the Liverpool County Court on 3 February 2012 dismissing his claim for breach of contract. The claim failed because the judge concluded that the term for the breach of which Mr George sued was not part of his contract of employment. The relevant term was contained in a collective agreement of 1987 that was directed at introducing reforms to the Prison Service. Mr George’s assertion, advanced by Mr John Hendy QC and Mr Deshpal Panesar, is that the judge was wrong to find that such term had not been incorporated into his employment contract. Mr John Cavanagh QC and Mr Alexander Williams, for the Ministry, submitted that the judge’s decision was correct.

In the 1980s, the running of prisons in England and Wales was the responsibility of the Home Office. It is now the responsibility of the Ministry. During that decade it became apparent that the deployment of prison officers was managed inefficiently and with insufficient regard to the proper allocation of resources. For example, the officers were contracted to work basic set hours for a modest salary but invariably, for operational reasons, would be called upon to work overtime, for which the payment was at rates exceeding the basic rate of pay and which made up a very significant proportion of their salaries. With a view to improving the working practices, negotiations took place between HM Prison Service and the Prison Officers Association (‘POA’) under the umbrella of an initiative called ‘Fresh Start’. A package was ultimately agreed in 1987 which resulted in a collective agreement on working practices, including the abolition of overtime and the introduction of ‘time off in lieu’ (‘TOIL’), which was designed to compensate officers who were required to work extra hours at the behest of the prison governor. The terms of the collective agreement were contained in what was called Bulletin 8.

The negotiations leading up to Bulletin 8 can be traced through the preceding bulletins, but it is neither necessary nor helpful to do so. The judge started by referring to Bulletin 7, as shall I. The Prison Service sent this on 9 March 1987 to Mr Evans, the General Secretary of the POA. It referred to there having been several prior meetings, culminating in one on 12 February 1987 at which it was agreed that the Prison Service would send out its ‘revised offer’ as soon as possible. Bulletin 7 was that offer, which was to remain on the table until 13 April 1987 and was described as ‘for Discussion with the Prison Service Trade Unions.’

Appendix 1 set out a ‘Statement of Agreed Principles for Fresh Start Proposals’ under 20 paragraphs. Paragraphs 1 to 3 set out the policy aims of the proposals, with paragraph 1 stating that:

Subsequent paragraphs, under the heading ‘Extent of Application’, set out new working arrangements, explained the categories of prison officers to whom they would apply and that the need to change the existing arrangements was dominated by their inflexibility. Paragraph 9 provided that:

Paragraph 10 dealt with working hours per week and provided:

Paragraphs 12 to 20 set out the proposed working arrangements. Paragraph 12 described the ‘Working Week’, including the number of hours that a prison officer could be required to work, and paragraph 13 was headed ‘Time Off In Lieu’. Paragraphs 12 and 13 provided, so far as material:

Bulletin 7 was not, in the event, the Prison Service’s final offer. Further negotiations resulted in its letter to Mr Evans of 26 March 1987. This was Bulletin 8, upon which Mr George’s claim turns. I must quote from it quite extensively. The letter enclosing it opened by saying:

Appendix 1 of Bulletin 8 set out the ‘Statement of Agreed Principles for Fresh Start Proposals’ in the same terms as in Bulletin 7. It then added the new Annex A referred to in the letter just quoted, which was headed ‘Application of Agreed Principles for Fresh Start Proposals’. Annex A contains 30 paragraphs, of which paragraphs 1 to 4 provide, so far as material:

Paragraphs 5 to 7 are headed ‘Minimum Staffing Levels’. They describe how staffing levels ‘should’ be set, as to how staffing levels will ‘normally be met’ and as to the keeping of records at local level. Paragraphs 8 to 11 are headed ‘Working Week’. They are expressed in terms of what ‘should’ or ‘should normally’ happen, for example that each weekly period ‘should’ contain no more than five duty days; that rescheduling of rest days ‘should normally’ be with the agreement of the officer concerned; and they provide for the permissive exchanges of duty ‘at the discretion of the Group Manager and subject to the needs of the work.’ Paragraphs 12 and 13 are headed ‘Shifts’. They provide that shift times ‘will always be specified’ and that ‘precise timings of shifts will be determined to meet the special needs of each local working group.’ Paragraph 13 provides that ‘In the case of long shifts, the aim should be for the working day to be no longer than 12.5 hours net of meal breaks.’ Meal breaks are dealt with in paragraphs 14 to 16, the provisions relating to them being in five instances qualified by the word ‘normally’. Paragraphs 17 to 19 are headed ‘Additional Hours’, paragraphs 20 to 21 ‘Shift Conversion’ and paragraphs 22 to 25 (the key provisions for present purposes) ‘Time Off In Lieu’.

I must set out the provisions of paragraphs 17 to 25 that are directly material to the appeal:

Paragraph 26 of Annex A, headed ‘Banked Hours’, provides:

Paragraph 27 is headed ‘Official Absences From Duty’, paragraph 28 ‘Annual Leave’ and paragraphs 29 and 30 ‘Training’.

Bulletin 8 was the subject of a nationwide ballot of POA members and was accepted by a majority on the advice of the union leaders. Fresh Start was phased in over the following two years. A concept of ‘additional contracted hours’ applied, but in most cases prison officers were paid on the basis of a 39-hour working week, although they could be required to work extra hours if operational reasons required it. In such a case, they would be entitled to TOIL.

The central question for the judge was whether and to what extent Bulletin 8, in particular the paragraph 23 sentence, was incorporated into Mr George’s contract of employment as a prison officer. Before explaining how the judge answered that question, I shall summarise the relevant legal principles relating to the status of collective agreements.

At common law, the terms of collective agreements negotiated between employers and unions were not ordinarily regarded as legally enforceable. As Geoffrey Lane J said in Ford Motor Co. Ltd v. Amalgamated Union of Engineering and Foundry Workers and Others [1969] 2 QB 303, at 330-331:

The legal status of collective agreements is now explained in the Trade Union and Labour Relations (Consolidation) Act 1992. Section 178 defines a ‘collective agreement’ as meaning ‘any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations’ and relating to one or more of seven matters specified in section 178(2). The first of such matters is ‘terms and conditions of employment, or the physical conditions in which any workers are required to work’. Section 179(1) provides that a collective agreement shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement (a) is in writing, and (b) contains a provision which, however expressed, states that the parties intend that the agreement shall be a legally enforceable contract. Section 179(2) provides that an agreement satisfying those conditions shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract. Section 179(3) provides that, subject to compliance with its requirements, the parties to such an agreement can validly provide for part of a written collective agreement to be a legally enforceable contract, in which event the remainder shall be presumed not to have been intended to be such a contract. Section 179(4) provides that the latter part of such a collective agreement may be referred to for the purpose of interpreting the part of it that is such a legally enforceable contract.

In modern industrial relations, it is unusual to find provisions in a collective agreement expressing an intention that all or any part of it is intended to be a legally enforceable contract. There is no such expression of intention in Bulletin 8. In any event, any such expression of intention could only achieve a legally binding contract as between both sides to the collective agreement. The question which more regularly arises is whether, accepting that a collective agreement will not itself usually constitute a legally enforceable contract, its terms (or any of them) have become incorporated into a contract of employment between employer and employee so as to be legally enforceable between them. There is no dispute that such terms can become so incorporated. In many cases, the critical question will, however, be whether they have been. In the most straightforward case, the employment contract may expressly provide that one or more of such terms is or are incorporated (National Coal Board v. Galley [1958] 1 WLR 16 is an example). In other, less straightforward, cases it may be possible to infer an intention on the part of the employer/employee to incorporate one or more of the terms of a collective agreement. It is, however, always the intention of the parties to the employment contract that has to be ascertained: a mere consideration of the collective agreement itself, being a non-binding arrangement between different parties, cannot by itself provide help as to this.

The approach to the question whether the employment contract incorporated any of the terms of a collective agreement was considered by Hobhouse J in Alexander and others v. Standard Telephones & Cables Ltd [1991] IRLR 286. I shall cite from two paragraphs of his judgment:

Hobhouse J’s statement of principle in paragraph 31 of Alexander was cited by this court with approval in Kaur v. MG Rover Group Ltd [2005] ICR 625, at paragraph 9 of the judgment delivered by Keene LJ with which Jonathan Parker and Brooke LJJ agreed. Keene LJ continued, in paragraph 10, by endorsing Hobhouse J’s statement that even in a case of the express incorporation of another document, it is also necessary to consider whether any part of that document is ‘apt’ to be a term of the employment contract. He pointed out that this is because there may well be provisions in a collective agreement ‘which are clearly not intended to give rise to legally-enforceable contractual rights between the employer and the individual employee’ and that one ‘must therefore look at the contents and character of the relevant parts of the collective agreement to determine whether they are apt to be a term of the individual contract of employment.’ Keene LJ’s conclusion, at paragraphs 31 to 34, was that the provisions of the collective agreement claimed to have been incorporated were in words ‘expressing an aspiration rather than a binding contractual term’ and so were inapt for incorporation into the employment contract.

In Malone and others v. British Airways plc [2011] ICR 125, this court had to consider whether the express incorporation into contracts of employment of the terms of a collective agreement resulted in a particular such term that impacted upon working conditions being individually enforceable by the employee. The conclusion was that it was not. Smith LJ, at paragraph 62 of a judgment with which Jackson and Ward LJJ agreed, explained that any such right of individual enforcement carried the potential for such disastrous consequences for the employer that it could not have been the intention of the parties to the collective agreement that it was to be so enforceable. It was therefore a term intended to be binding in honour only and so not ‘apt’ to become a term of the employment contract in which it had been expressly incorporated.

Mr George is a prison officer who has been employed since July 1980 at Stoke Heath Young Offenders Institution. By his claim form, issued on 18 August 2010, and his accompanying Particulars of Claim he sought a declaration that by failing to offer him TOIL within five weeks of 30 July 2009, alternatively 13 August 2009, the Ministry had breached his contract of employment. His pleaded case was that Bulletin 8 (including paragraph 23 of Annex A, the source of his ‘five weeks’ point) was ‘expressly incorporated into [his] contract of employment with the [Ministry’s] predecessors.’ The Ministry’s position was that Bulletin 8 was not incorporated into his contract but that it had in fact offered Mr George TOIL within the five week period.

The judge considered first whether Bulletin 8 had been expressly incorporated into the employment contracts of prison officers such as Mr George. His conclusion, for reasons summarised in paragraphs 53 to 56, was that none of the provisions of Bulletin 8 had been so incorporated. He considered that ‘one of the hallmarks of express incorporation must be clarity and unequivocality’ whereas he regarded ‘the identification of the contractual terms on the basis of written documentation for prison officers [as] anything but clear with numerous cross-references, ambiguous documentation, and misunderstanding on the part of employees.’ He said that Mr George’s main submission appeared to be based on the point that paragraph 23 was contained in a collective agreement intended to achieve changes in the working conditions of prison officers, yet the judge could not find ‘any wording in that or any other document to the effect that the Prison Service and individual prison officers are to have any specific terms incorporated into individual contracts of employment.’

The judge turned to what he called the ‘far more difficult’ question, namely whether there was a basis for inferring an intention to incorporate the relevant text of Bulletin 8 into the employment contracts of prison officers such as Mr George. He found, in paragraph 59, that the parties to such contracts had been working for years on the basis of an entitlement on the part of the Prison Service to require prison officers to work additional hours above those for which they had contracted to work. This had been one of the significant changes brought about by the Fresh Start proposals. The judge then said that:

The judge thus made a clear finding that the entitlement to require prison officers to work additional hours and a corresponding obligation upon the employer to repay such hours by TOIL were, by inference, terms incorporated into the employment contracts of prison officers such as Mr George. What, however, he specifically stopped short of also finding was that the TOIL term so incorporated required the TOIL to be provided within the maximum period of five weeks referred to in the paragraph 23 sentence. He said:

I interpret that conclusion as based on two considerations: first, on the judge’s finding in the second sentence of paragraph 63 that there was insufficient evidence to support the view that a five-week long-stop provision was operated in practice, or that in practice a five-week long-stop was anything other than a target; second, that, as matter of interpretation, paragraph 23 anyway did not point unambiguously to the five-week period being a true long-stop as opposed to guidance as to what should be achieved if practicable, which the judge invoked as perhaps providing an explanation of why, in practice, a five-week longstop provision had not been operated.

That conclusion marked the end of Mr George’s claim, but the judge also considered whether if (contrary to his finding) the third sentence of paragraph 23 could, by reference to custom and practice, be regarded as incorporated into Mr George’s employment contract, it was a provision that was apt to be a term of such contract. That was a relevant inquiry having regard to the principle explained by Hobhouse J in paragraph 31 of Alexander and subsequently approved and applied by this court in Kaur and Malone.

In this connection, the judge had earlier, at paragraph 7, made it clear that he ‘would not be resolving any issue about the practicality of providing TOIL … within a given period of time’ which he said would involve an in-depth investigation of operational factors, an exercise wholly inappropriate for a county court. However, he did not regard the ‘aptness’ question as requiring an investigation of operational factors. He regarded it as turning on a more discrete point, namely the efficacyof a provision relating to setting a long-stop for the provision of TOIL. His reasoning and conclusion in paragraphs 70 to 75 were that if paragraph 23 did provide for a five-week longstop for the provision of TOIL, it was not apt to become a contractual term: he could not see how it could be workable. He said:

The judge developed those considerations in the following paragraphs, and concluded by saying:

Mr George’s claim therefore failed. The judge also found, as a fact, that contrary to the Ministry’s case, Mr George had not been offered his TOIL within any applicable five-week period. Success on that point alone did not, however, help him.

Was the paragraph 23 sentence incorporated into Mr George’s contract of employment?

Mr George’s grounds of appeal and written skeleton argument challenge the judge’s findings that the paragraph 23 sentence was neither expressly nor impliedly incorporated into his employment contract. Their main focus was, however, on Bulletin 8 itself and its genesis, whereas nothing in Bulletin 8 can, without more, demonstrate its incorporation into Mr George’s contract. No challenge in the grounds or written argument was directed at the judge’s finding in the second sentence of paragraph 63 that there was inadequate evidence to justify an inference that paragraph 23 had been incorporated into Mr George’s contract. Ground 4 and the written argument did, however, rely on documentation, to which I shall come, in support of the assertion that the judge was wrong to reject the case that there had been an express incorporation of Bulletin 8 into the contract, and Mr Hendy, in his oral argument, challenged the judge’s conclusion in that respect. He submitted that Bulletin 8, or at least the paragraph 23 sentence, had been expressly incorporated. I shall deal first with that issue.

The parties have been unable to find Mr George’s original letter of appointment or his written contract of employment (if any) and so the terms upon which he was originally employed are unknown. Mr Hendy referred us to a standard form of letter used by the Prison Service when appointing a prison officer. The date it came into use is unknown, but its contents show that it was in or after 1998. We were referred to two features of it. First, clause 5, headed ‘Hours’, stated that:

Secondly, the letter stated, under the heading ‘Summary of the Principal Terms and Conditions of Appointment’, that ‘details of the conditions of service’ are given in the Staff Handbook and various other defined documents. We were not shown the latter documents, but we were shown the October 2005 edition of the Handbook (the judge also referred to the existence of an online 2010 Handbook). Paragraph 1.3 stated that prison service staff were civil servants employed on ‘Civil Service terms and conditions that may be varied’. Paragraph 1.4 said that the Handbook provided ‘guidance for all Prison Service staff on their rights and duties.’ Paragraph 7.15, headed ‘Arrangement of the Working Week’, provides:

We were also shown a later form of standard letter of appointment, dating from 2010 (referred to by the judge in paragraphs 59 and 64). It was relevantly different from the prior form of letter. Under the like heading ‘Prison Officer – Summary of the Principal Terms and Conditions of Appointment’ it provided:

If therefore (which I would regard as unclear) the first standard letter justified any inference that the 2005 Handbook included terms forming part of the appointee’s contract of employment and (which I would regard as equally unclear) that paragraph 7.15 of that Handbook could be said to incorporate any of the parts of Bulletin 8 relating to TOIL, the 2010 standard letter made it clear that what was in the Handbook did not (or at least did not ‘generally’) form part of the appointee’s contract. What, if anything, Mr George’s long lost letter of appointment said about the Handbook is unknown. In these circumstances, I can see no basis for any inference that his contract of employment incorporated the Handbook as part of his terms and, therefore, no basis for any inference that, via any version of the Handbook from time to time, his contract incorporated all or any of the relevant parts of Bulletin 8.

The 2010 standard letter of appointment, unlike its processor, said more about TOIL. Section 7, headed ‘Working Hours’, provided:

I shall not take time discussing the sense or legal effect of that. At its lowest, however, it can arguably be said to be directed at incorporating provisions deriving from the relevant parts of Bulletin 8. The issuing of such letters of appointment in and after 2010 does not, however, help Mr George. He has produced no similar letter addressed to him explaining how his extra hours and TOIL entitlements were to be dealt with, and there is no basis for inferring that any such letter was ever sent to him; and, as I have said, appointees under the prior standard form of letter were given a different, shorter explanation of their rights to TOIL.

That was not the full extent of the written documentation to which we were referred relating to express incorporation. The Prison Service wrote to all members on 18 May 1987 explaining that it was now going to concentrate of making ‘the new system work’, and that it was going to need real commitment from all staff ‘to translate the Fresh Start guidelines into working practices that provide a more satisfactory way of working for you …’. Mr Cavanagh referred us to the Prison Service’s later document 35/87, sent out on 2 July 1987, notifying staff of various changes of their existing conditions. None of the changes, however, related to the working of extra hours or TOIL. Mr Hendy submitted to us that it ‘must’ have been the case that other like documents were also sent out to staff, including documents relating to the new extra hours and TOIL arrangements derived from Bulletin 8, and that therefore Mr George’s employment conditions would thereby have been changed so as to incorporate those terms expressly.

I respectfully disagree with, and reject, that submission. There is no ‘must’ about it at all. There is simply no evidence supporting the provision to staff, or therefore to Mr George, of any such letter. The judge had the benefit of the exposition of all the oral and documentary evidence available to the parties said to be relevant to the question of express incorporation, and roundly rejected the claim as unproved. In my judgment, he was entitled to do so. Mr George chose to bring the claim and had the burden of proving it. He adduced, however, no evidence that Bulletin 8, in particular the paragraph 23 sentence, had been expressly incorporated into his employment contract. Of course, his original employment contract pre-dated Bulletin 8 and so a consideration of that document (if such ever existed) or of his original terms of engagement would be unlikely to have been of much help to him. What he had to show was that, following the adoption of Bulletin 8, its material terms became part of his conditions of service by way of an express variation of his existing contract. He failed to impress the judge to that effect because he had no evidence to support it. There is no suggestion that the Ministry did not properly discharge their disclosure obligations in relation to documents that might have assisted Mr George, but their researches yielded nothing.

Having rejected Mr George’s case based on express incorporation, the judge then also rejected his alternative case that custom and practice in the Prison Service over the prior 23 years justified the inference that the relevant provisions of Bulletin 8 had been incorporated into his and other prison officers’ contracts. Whilst the judge found that such custom and practice showed that the requirements to work extra hours and their repayment by TOIL (which derived from Bulletin 8) had been incorporated, he declined to find that the evidence as to custom and practice showed that the granting of TOIL within a five-week period was an absolute right, or that such a period was anything other than a target for guidance.

The finding fatal to Mr George’s case in that respect is in the second sentence of paragraph 63 of the judge’s judgment. Mr Hendy advanced no argument in challenge to that finding, indeed at no point in his submissions did he even refer to that sentence. There is obviously no basis upon which this court can take any different view as to the soundness of that finding by the judge.

But for Mr Cavanagh’s stance on behalf of the Ministry, I would have regarded that as marking the end of Mr George’s appeal: because unless this court could be satisfied that the paragraph 23 sentence was incorporated into Mr George’s contract of employment, he can have no case for asserting a breach of the obligation which, had there been such incorporation, he claimed that sentence would have created.

Mr Cavanagh was, however, seemingly unwilling to subject Mr George’s case to such a summary execution. He appeared to consider that there was still some basis upon which it might be said that the relevant provisions of Bulletin 8 were impliedly incorporated into Mr George’s contract. If so, his answer, to which he devoted most of his energy in argument, was that, on a proper consideration of Bulletin 8, none of the provisions upon which Mr George claimed to rely to make good his breach of contract claim were ‘apt’ for such implied incorporation and so, even if purportedly so incorporated, they provided Mr George with no basis for his breach of contract claim.

I do not understand upon what basis it was suggested that the relevant provisions of Bulletin 8 might have been impliedly incorporated into Mr George’s contract of employment. The judge made no such finding. He of course considered the ‘aptness for incorporation’ question, but only on the basis that, contrary to his findings, paragraph 23 had been incorporated into Mr George’s contract by custom and practice (see paragraph 68).

Given, however, the nature of the debate that Mr Cavanagh appeared anxious for this court to consider, namely that as to ‘aptness’, I shall deal with it and shall do so on the basis, contrary to my conclusions, that the relevant provisions of Bulletin 8, including the paragraph 23 sentence, were impliedly incorporated into Mr George’s contract of employment.

‘Aptness’ for incorporation

In support of the claimed ‘aptness’ of the paragraph 23 sentence for incorporation purposes (see paragraphs 11 and 12 above for a citation from paragraphs 17 to 26 of Annex A), Mr Hendy advanced a forceful argument based on the genesis of Bulletin 8. The thrust was that it introduced a fundamentally new package for prison officers. Under the prior regime, prison officers could not be required to work beyond their normal hours save in the case of an emergency; and if they did so work, they did so at enhanced overtime rates. Bulletin 8 introduced a new ‘Fresh Start’ world under which the right to refuse to work beyond normal hours was surrendered, and with it the right to receive enhanced pay for extra hours worked; and, in its place, and in exchange for an obligation to work additional hours upon request, prison officers would be given TOIL. Annex A, a key part of Bulletin 8, included new provisions that were added in consequence of the negotiations that followed Bulletin 7. It was plainly directed at offering prison officers more than had previously been offered and paragraph 23 was part of it. The paragraph 23 sentence was, Mr Hendy submitted, plainly intended to be legally binding. It required TOIL to be provided as soon as operationally possible, but in any event within a maximum of five weeks – and even if at no point during such period it became operationally possible to provide the TOIL. The sentence does not of course include the words ‘in any event’, or any like words making that intention clear (compare paragraph 26 of Annex A, where the very phrase ‘in any event’ was used) although Mr Hendy said that that was the correct interpretation of a sentence that he expressly acknowledged was not drafted as ‘any competent lawyer’ would have written it. His main point about that was, however, that the likelihood that it would be operationally impossible to grant the TOIL within the five-week period was remote, because he said it was a necessary inference that, in formulating the terms of paragraph 23, the Prison Service must be taken to have calculated that in the Fresh Start new world it would always be operationally possible to do so. His submission was to the effect that the Prison Service could be taken to have considered and rejected the ‘never say never’ dictum.

If one starts from the premise that Bulletin 8, like most collective agreements, does not create legally binding obligations, I admit to a personal conceptual difficulty in dealing with arguments as to whether provisions in it were intended to be ‘legally binding’. I would, but for the guidance in the authorities, have been disposed to consider that a more logical approach would be (a) to ascertain what, if any, provisions in it were, one way or another, incorporated into the relevant employment contract, and then (b) to interpret those provisions, as part of that contract, with a view to ascertaining their legal force and effect (if any). That said, the authorities appear to require a different inquiry, namely (i) to carry out the exercise identified in (a); and then (ii) to consider the collective agreement, being the source for the incorporated provisions, to ascertain whether they were ‘apt’ for incorporation, a central consideration in such inquiry being whether they were intended to be legally enforceable by an individual employee against his employer. I shall so approach the present case.

We had extensive argument on the latter question from counsel, who took us on a detailed trawl through Bulletin 8. Mr Hendy conceded that there were many provisions in it that were merely ‘aspirational’ (in the sense explained in Kaur: paragraph 20 above) and so not intended to be individually enforceable by an employee. He also asserted that other provisions plainly were intended to be so enforceable, and he instanced the paragraph 23 sentence. Mr Cavanagh’s position was that the section of Bulletin 8 of which paragraph 23 formed part was manifestly also of a merely aspirational nature, and so was not intended to be legally enforceable. He submitted further that, if the paragraph 23 sentence was to be read as meaning that TOIL was required to be provided within five weeks even if was not operationally possible to do so within that period, that would have the potential for catastrophic consequences for the Prison Service, which he illustrated by reference to the types of crises that could be foreseen as likely to affect the running of prisons from time to time. If that was the right construction of the paragraph 23 sentence, he said that the parties to Bulletin 8 could not have intended it to be individually enforceable by a prison officer, and he invoked the support of Malone: see paragraph 21 above.

In my judgment, it is clear that nothing in Bulletin 8 shows that it was the intention of the parties that the paragraph 23 sentence was intended to be individually enforceable by a prison officer. It was simply part of a package of provisions whose purpose was to do no more than provide non-binding guidance as to the practice to be adopted in the Prison Service in relation to the granting of TOIL.

I of course accept Mr Hendy’s point that Annex A was an addition to the Prison Service’s prior offer to staff. Its intended sense and effect must, however, be assessed in context. It was an ‘add on’ to Appendix 1, which remained a core part of Bulletin 8. Appendix 1 contained a ‘Statement of Agreed Principles’ which were expressly described in paragraph 1 as providing ‘a framework from which new working arrangements … are to be developed’ (see paragraph 4 above). The same paragraph said that the ‘new arrangements … will be drawn specifically to meet the individual needs of establishments …’. The principles were, therefore, apparently intended to provide no more than an outline of detailed arrangements to be drawn in the future. Appendix 1 then explains the ‘Aim’ of the new arrangements, and the ‘Approach’ to them. More concrete ‘arrangements’ are set out under ‘Extent of Application’, but paragraph 8 refers to what follows as amounting only to ‘general guidance [which] should help inform the process of putting these arrangements in place in each establishment on a broadly common basis.’ That, therefore, relates also to paragraphs 10 and 12 (which explain the length of the working week) and paragraph 13 (which deals with TOIL). I have cited paragraph 13 (see paragraph 7 above), and Mr Hendy conceded that it was merely aspirational: he disclaimed that it was intended to be individually enforceable.

I consider, therefore, that it is difficult to extract from Appendix 1 any intention that anything in it was intended to be individually enforceable by employees. It was in my view intended to provide no more than general guidance as to the local arrangements that should be made. Annex A was Bulletin 8’s annex to Appendix 1. The letter introducing it (see paragraph 8 above) explained that it had been produced with a view to ‘meeting anxieties … about how [Appendix 1] might be applied in practice.’ The letter said Annex A accepted that ‘local arrangements should be enshrined in written agreements and that there should be a mechanism for modifying agreements, where necessary.’ It also referred to the objective of producing in due course ‘a single agreed code of principles on working practice.’ That indicated again that Bulletin 8 was intended to be no more than a stepping stone towards the creation of such a code. That description of the nature and purpose of Annex A points away from any inference that its architects intended any of its provisions to be individually enforceable.

I have cited paragraph 1 of Annex A (see paragraph 9 above). Consistently with the explanatory letter, it described Annex A as in the nature of ‘advice’ as to how Appendix 1 should be applied, the ‘advice’ being said to be in the nature of ‘guidelines and practice’. The provision of ‘guidelines and practice’ as to the practical working out of ‘general guidance’ in relation to the making of proposed local arrangements again points against any intention that such ‘guidelines and practice’ were themselves to be individually enforceable by an employee. Paragraphs 2, 3 and 4, in line with Appendix 1, show that the idea was that there were to be local agreements between governors and local POA branches; and the purpose of Appendix 1 and Annex A was to give a steer as to the nature they should take. Paragraph 4 says that those local agreements ‘should be honoured by both parties’ but also explains when staff might be asked to act contrary to the terms of such an agreement, in particular in the case of a ‘clear operational emergency’. If Mr Hendy is right that the paragraph 23 sentence requires TOIL to be given even when it turns out not to be operationally possible to do so (for example, because of a ‘clear operational emergency’), it fits uncomfortably with the considerations articulated in paragraph 4. As compared with what paragraph 4 says about the proposed local agreements, there is no statement in Appendix 1 or Annex A as to staff being expected to ‘honour’ their provisions. That is because they are not purporting to lay down anything intended to be individually enforceable. Consistently with that, I have referred to how, in the paragraphs in Annex A that follow paragraph 4, the language employed is redolent of the aspirational rather than the mandatory (‘normally’ is, for example, used six times in paragraphs 14 to 17, so flagging up that these paragraphs are no more than general guidance). I come now to the key paragraphs 18 to 25.

Mr Hendy focussed his argument almost exclusively on the paragraph 23 sentence, its third sentence. That is not surprising, since everything around it appears to make it clear that it has no contractual intent: in particular, Mr Hendy expressly conceded that the first two sentences of paragraph 23 were merely aspirational. The critical question, as poetically posed by Mr Cavanagh, is therefore whether the third sentence of paragraph 23 is an island of certainty in a sea of aspiration. In my judgment, it is obvious that it is not.

The starting point is paragraph 18, which says that additional hours worked ‘will be repaid as soon as possible as described in paragraphs 22-25 below.’ It does not say ‘as described in the third sentence of paragraph 23 below’. It instead specifically provides that all of paragraphs 22 to 25 are relevant to the regime for the repayment of extra hours worked. Paragraph 22 is, therefore, the first relevant port of call and it provides for the giving of ‘priority if possible’ to those asked to work extra hours as against those who volunteered to work them. The language of paragraph 22 – ‘should if possible’ - obviously points away from any intention that it was to be individually enforceable by an employee, and I did not understand Mr Hendy to suggest otherwise.

Paragraph 22 is, however, relevant to the interpretation of the paragraph 23 sentence, since it recognises that questions of priority will arise in relation to the grant of TOIL. It reflects the expectation that time will become available to be granted to those who have earned a right to TOIL, but that such time will or may not be enough to meet all their accrued rights at once. Paragraph 22 does no more than to touch on such a question. It does not, for example, deal with the case in which, say, five prison officers are each asked to do five involuntary extra hours in week 1, and in which, at the beginning of week 2 it is operationally possible to repay a maximum of five hours of TOIL.

Those five hours will not of course satisfy the full 25 hours earned by the five officers in the previous week. According, however, to Mr George’s interpretation of the paragraph 23 sentence, accumulated TOIL is required to be granted ‘as soon as operationally possible’, which means there is a contractual obligation so to grant it. In the example given, how is the five hours of available TOIL to be allocated? To just one of the five employees? Equally, as to one hour each, between all five? Or in some other and, if so, what way? That question is answered neither by the paragraph 23 sentence nor by anything else in Bulletin 8. It would appear to follow from the logic of Mr George’s argument that if the employer were to grant the available five hours to just one of the five employees, each of the others would have a claim for breach of contract. Each could say that it was ‘operationally possible’ to grant him five hours of TOIL in week 2, and that there is nothing in the paragraph 23 sentence providing that available TOIL is to be shared between competing claimants, or how it is to be shared. Of course, the notion that in such a case each of the unlucky four would have a claim for breach of contract against his employer might, to put it at its lowest, be regarded as surprising; and probably an answer to it would be the reading into the paragraph 23 sentence various implied terms directed at giving it some sort of business efficacy. The example does, however, highlight the improbability that the paragraph 23 sentence was intended to be individually enforceable: it leaves unanswered too many obvious questions.

This is just one feature of the difficulty of Mr George’s case on the paragraph 23 sentence. A further, formal difficulty is the idea that the third sentence of paragraph 23 was intended to be individually enforceable when, as Mr Hendy accepted, the first two sentences of paragraph 23 were plainly of a merely aspirational nature. I do not myself understand the first sentence, since I understand the intention to be that all extra hours will be compensated by TOIL. It may, however, simply be saying that Group Managers should ensure that prison officers do not build up too large an unmet entitlement to TOIL. Whatever it means, it plainly needs some working out to make its intention clear. The second sentence then sets out what may be a related ‘aim’. Again, whatever its precise intention, it obviously needs some working out.

Given the status of paragraph 22, and the first two sentences of paragraph 23, can the architects of Bulletin 8 fairly have attributed to them the selective intention that the third sentence of paragraph 23 was nevertheless intended to be individually enforceable? In my view, that question, posed in the context of what I have already said about Annex A, answers itself. Another obvious difficulty in Mr George’s path to a contrary conclusion is that, by elevating the paragraph 23 sentence to an unqualified contractual obligation on the part of the employer to grant TOIL to a prison officer ‘as soon as operationally possible’, he is necessarily rejecting the notion that the timing of the grant of TOIL is something to be agreed between employer and employee. In this connection, it is to be noted that Annex A does not, as it were, repeal the provisions of Appendix 1: it is there merely to provide guidance as to how Appendix 1 (including paragraph 13) should be applied. Paragraph 13 of Appendix 1 therefore remained alive and well even after the introduction of Annex A, and it provides that ‘In granting TOIL the officer’s preference should be sought and whenever possible complied with providing the needs of the work are met.’

I find it impossible to believe that there was any intention in paragraphs 18, and 22 to 25, of Annex A to depart from that obviously common sense approach to the grant of TOIL. Mr George’s stance is that, at least in legal theory, the consensual grant of TOIL as regards timing was abolished by the paragraph 23 sentence. He is logically arguing for a world in which the employer is entitled to say to the employee that he willand must take his TOIL earned on Friday ‘as soon as operationally possible’, which might be the following Monday. The employee might well wish, in practice, to add his TOIL earned on Friday to what he has already got in the bank, and, if and when operationally possible, to take a full day off at some time convenient to him, perhaps to coincide with his children’s half term. In Mr George’s world it would still be possible for employee and employer to agree to that. But the critical point is that the employer would have no right so to defer the employee’s TOIL except on the basis of mutual consent; and such an arrangement, if made, could only be rationalised as a consensual variation of a binding bilateral contractual obligation which, but for such variation, would be required to be operated in the way I have said. In Mr George’s world, if TOIL earned on Friday is operationally repayable on Monday, the employer will be in breach of contract if he does not promptly grant such TOIL to the employee: if he leaves until Tuesday a discussion as to when the employee might like to take it, the employer will already be in breach of contract.

I write temperately in saying that I regard it as improbable that the architects of paragraph 23 had any intention of creating such a regime, and as thereby abolishing the common sense provision in paragraph 13 of Appendix 1 as to the timing of the grant of TOIL being, so far as possible, intended to be a consensual matter. There appears to me to be much to be said for the view that all that paragraph 23 of Annex A was directed at clarifying was that TOIL would be granted when operationally possible and ordinarily within a five week period, but was obviously not thereby intending to provide for anything that was intended to be individually enforceable. I would in particular reject any notion that paragraph 23 contemplated that TOIL would be granted within a five-week period even if it was not operationally possible to do so. That is to attribute to its architects an intention that (a) they did not explain expressly, (b) is inconsistent with their likely intention, as shown by paragraph 4 of Annex A, and (c) could legitimately be regarded as absurd.

In my view it is obvious that paragraph 23 was as aspirational as the provisions surrounding it. Paragraph 24 (one of the paragraphs referred to in paragraph 18) contemplates the making of local agreements covering TOIL ‘within these principles and subject to the needs of the work’. Therein lies the answer to Mr George’s case. Annex A is merely spelling out general guidelines which it recognised required further detailed working out. It is not directed at explaining anything that was intended, without more, to be contractually enforceable between employer and employee. It was directed at doing no more than setting out guidelines, whose working details were required to be worked out either in practice or in local agreements. Annex A, like Appendix 1, was not intended to be legally enforceable by an individual employee against his employer.

For these reasons, even if Mr George had got home on the incorporation question, which he did not, his case deserved to fail on the ‘aptness’ question, as it did. My understanding is that his claim was the first bid in over 20 years by a prison officer to suggest that the paragraph 23 sentence imposed a contractual obligation; and we were not told that there had been any general unrest amongst prison officers as to the granting of TOIL. That is presumably because the granting of TOIL has in practice been operated in a sensible, practical, common sense way that has met the reasonable needs of employers and employees.

In my judgment, the judge was right to dismiss Mr George’s claim. I would dismiss his appeal.

I agree.

I also agree.