Grainger v North East London NHS Foundation Trust

Introduction

The Claimant is a consultant child psychotherapist. She has worked for the Defendant since 2008, having worked for the Defendant’s predecessors since 1980. The Defendant provides, inter alia, community health and mental health services in the London Boroughs of Barking & Dagenham, Havering, Redbridge and Waltham Forest and in parts of Essex. In 2005 the Claimant’s job was assessed as falling within band 8C under the NHS pay scheme.

The Claimant alleges that:

By this action, which was commenced on 17 December 2015, the Claimant seeks to recover the amounts which she says that she should have been paid. This has been a trial of the issue of liability only, as ordered by Master McCloud on 21 December 2016.

The issues between the parties concerned, in particular:

The Claimant also invited me to decide what the chances were of a job evaluation resulting in the job being placed in band 8D and, if so, whether the re-banding would have been backdated to 2007 and whether she would have benefited from “pay protection” so as to continue after March 2014 to be paid as if her job were in band 8D. I declined to do so. This was a trial of liability only. Moreover, the Claimant has not as yet pleaded a claim for damages for loss of a chance.

The Claimant gave evidence, but did not call any other witnesses. The Defendant called 6 witnesses, as follows:

All of the witnesses had to deal with the fact that they were giving evidence about matters which occurred as much as 12 years ago. Inevitably, their recollections were imperfect and, in some cases, inaccurate. For example, the Claimant recalled that in 2005 she was paid at the top of band 8C, whereas the letter which she managed to find during the trial revealed that she had been paid at the level below the top. Some of the Defendant’s witnesses gave rather surprising evidence as to what they meant when they wrote emails or letters in, say, 2007 or 2011. I have focused on what they actually wrote, rather than what they now say that they meant.

It will be necessary to refer to two disciplinary matters involving the Claimant. It is important to stress, however, that under the NHS pay scheme disciplinary findings (and, a fortiori, investigations) do not affect the banding of a job. That is determined solely by the nature of the job, not by the disciplinary record of the person doing the job. It is also right to record that, while criticisms were made of the Claimant’s time management and record-keeping, Dr Rossouw accepted without hesitation that the Claimant was extremely dedicated and very committed to her discipline.

“Agenda for Change” is the name given to the NHS pay system which was introduced with effect from 1 October 2004, following negotiations with representatives of NHS employees. The NHS pay system was intended to provide a common pay system for all relevant NHS employees, regardless of the identity of their employer. Details of the NHS pay system are set out in the “NHS terms and conditions of service handbook”, as amended from time to time (“the Terms and Conditions Handbook”), which is published by the NHS Staff Council. The NHS Staff Council contains representatives of employers and unions.

By 2007, the NHS pay system consisted of three “spines”. The relevant spine for the purposes of this case is the second spine, which applies to staff such as the Claimant who fall within the remit of the NHS Pay Review Body. That spine consists of nine pay bands, numbered from 1 to 9 (with band 9 being the highest paid). Band 8 is subdivided into four “ranges”, referred to as bands 8A to 8D (with band 8D being the highest paid).

Each band contains a number of “pay points”. There are 56 pay points, numbered from 1 to 56 (with 56 being the highest paid). The bands overlap, so that, for example, as at 1 April 2007 (according to Annex B to Version 2 of the Terms and Conditions Handbook, and excluding certain transitional provisions):

Each pay point represents a level of annual salary, which is subject to regular increases. For example, as at 1 April 2007:

The stated purposed of the pay points was (according to paragraph 1.8 of the Terms and Conditions Handbook):

“to allow pay progression in post. Staff will progress from point to point on an annual basis to the top point in their pay band or pay range, provided their performance is satisfactory and they demonstrate the agreed knowledge and skills appropriate to that part of the pay band or range.”

The introduction and maintenance of a common NHS pay system required a process for allocating jobs to the appropriate bands. The NHS Staff Council published various editions of the “NHS job evaluation handbook” (“the Job Evaluation Handbook”). This set out details of the NHS job evaluation scheme. That scheme consisted of allocating weighting scores to jobs and thereby identifying the appropriate band for the job. For example (as set out in Table 1 in paragraph 1.6 of Version 2 of the Terms and Conditions Handbook):

The Job Evaluation Handbook gave details of how jobs were to be scored. There were two processes for doing this (with the possibility of a hybrid of the two):

Individual employers within the NHS sought to give effect to the NHS pay system and the NHS job evaluation scheme. This involved the production of documents such as the Defendant’s “HR Handbook for Managers”, which included a section headed “Grading Review Procedure” or “Banding Review”.

The Claimant based her claim on the following alleged contractual terms:

I will consider each of these in turn. It is appropriate to begin, however, by saying a little about the law governing the incorporation into a contract of employment of terms which have been the subject of collective bargaining.

Where an employment contract incorporates the terms of a collectively agreed document, not all of the terms of the document will necessarily be incorporated. Only those terms which are “apt” for incorporation will be incorporated: see: Alexander v Standard Telephones and Cables Limited (No. 2) [1991] IRLR 286 at 292-293.

In Hussain v Surrey & Sussex Healthcare NHS Trust [2012] Med. LR 163 Andrew Smith J considered the extent to which the provisions of an NHS Trust's disciplinary procedure were incorporated into a doctor's contract of employment. He said (at paragrah 168):

“There is no single test as to whether an employer and employee intended to agree that provisions of an agreement such as the Practitioners Disciplinary Procedure should be contractual between them (rather than advisory or hortatory or an expression of aspiration), and if so which provisions. The indicia that a provision is to be taken to have contractual status which are, I think, of some relevance to this case include these:

(i)

The importance of the provision to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them […] the more important the provision to the structure of the procedures, the more likely it is that the parties intended it to be contractual. …

(ii)

The level of detail prescribed by the provision: as Penry-Davey J said in Kulkarni v Milton Keynes Hospital NHS Trust [2008] IRLR 949 at para. 25, the courts should not “become involved in the micro-management of conduct hearings”, and the parties to the contract of employment are not to be taken to have intended that they should be. (In the Court of Appeal in Kulkarni, [[2010] ICR 101] at para 22, Smith LJ endorsed this observation of Penry-Davey J.)

(iii)

The certainty of what the provision requires: as Swift J observed (in Hameed [[2010] Med. LR 412] at para. 68), if a provision is vague or discursive, it is the less apt to have contractual status.

(iv)

The context of the provision: a provision included amongst other provisions that are contractual is itself more likely to have been intended to have contractual status than one included among other provisions which provide guidance or are otherwise not apt to be contractual.

(v)

Whether the provision is workable, or would be if it were taken to have contractual status; the parties are not to be taken to have intended to introduce into their contract of employment terms which, if enforced, would not be workable or make business sense: see Malone v British Airways plc [2010] EWCA Civ 1225 at para 62.”

A number of other cases were cited which illustrated the application of these principles. I do not propose to review all of these cases. It is appropriate, however, to note one point. Many of those cases concerned disciplinary procedures. The present case concerns the procedure for assessing the amount of the Claimant’s pay. Pay is a subject which one would expect to be the subject of contractual terms.

The Terms and Conditions Handbook consists of 7 Parts, headed as follows:

The Defendant accepts that the Terms and Conditions Handbook contained some provisions which were incorporated into the contract between the Claimant and the Defendant. The Defendant denied that every provision of the Terms and Conditions Handbook was contractually enforceable, but accepted that Parts 2 and 3 did form part of the contract between the Claimant and the Defendant.

Part 2 (Pay) contains 7 sections. Section 1 of Part 2 is headed “Pay structure”. Paragraphs 1.3 and 1.5 of Section 1 of Part 2 provide as follows:

“1.3

… All staff covered by Agenda for Change will, on assimilation, be assigned to one of these pay bands on the basis of job weight as measured by the NHS Job Evaluation Scheme.”

“1.5

The NHS Job Evaluation Handbook¹ sets out the basis of job evaluation, which underpins the new pay system and includes the factor plan, the weighting and scoring document and a guide for matching posts locally. The process for assimilation is set out more full in Section 46.

The footnote to paragraph 1.5 gave the web address for the Job Evaluation Handbook.

Section 6 of Part 2 of the Terms and Conditions Handbook is headed “Career and pay progression”. Paragraphs 6.30 and 6.31 in Section 6 of Part 2 provide as follows (emphasis added):

“6.30

Individuals may be moved into a higher pay band where it is necessary to fill a post on a temporary basis when a vacancy is unfilled, but being advertised, or the post is being held open for someone who is due to return, e.g. from long-term sick leave, maternity leave, or from extended training.

6.31

Pay should be set either at the minimum of the new pay band or, if this would result in no pay increase (by reference to basic pay plus any recruitment and retention premium if applicable) the first pay point in the band that would deliver an increase in pay. Temporary movement into a new pay band should not normally last more than six months or less than one month except in instances of maternity leave or long-term sick leave where a longer period may be known at the outset. In circumstances where the individual is not required to carry out the full responsibilities of the post, pay will be determined by job evaluation.”

The Claimant relied on the last sentence of paragraph 6.31. The Defendant argued that paragraph 6.31 only applied to an employee who fell within paragraph 6.30, which the Defendant contended that the Claimant did not. I find it unnecessary to resolve these issues, because, as Mr Cordrey accepted, the last sentence of paragraph 6.31 is really just an example of the general proposition, to be found in the Job Evaluation Handbook, that jobs which changed significantly should be re-evaluated.

The Defendant denied that any of the provisions of the Job Evaluation Handbook formed part of the contract between the Claimant and the Defendant. I found this to be a surprising submission, considering that, as acknowledged in paragraph 1.5 of section 1 of part 2 of the Terms and Conditions Handbook, the job evaluation scheme underpins the new pay system.

The Department of Health published the First Edition of the Job Evaluation Handbook in March 2003. It was of background relevance only in this case.

The Second Edition of the Job Evaluation Handbook was published by the NHS Staff Council in October 2004. It dealt primarily with how a job evaluation was to be conducted, but had less to say about when a job evaluation was to be conducted. This was presumably because it was produced when the new pay system and job evaluation system were first being introduced.

However, section 10 (headed “National Protocol for Local Evaluation”) included the following:

“3.5

Dealing with new and changed jobs

One of the aims of Agenda for Change is to allow trusts and other NHS organisations to operate more flexibly by developing roles in partnership. Detailed procedures need to be agreed locally. This note deals with the principles of how changed and new jobs, once agreed, should be dealt with in terms of the NHS Job Evaluation Scheme.

3.6

Changed jobs

Jobs change all the time. Only significant changes are likely to affect matching or evaluation. When a job is identified as having changed significantly, a decision needs to be made as to whether it is likely to match a profile (not necessarily the one to which it may have matched before the change). If so, it should be put through the Matching Procedure (see Section 8) in the normal way.

If it is agreed that the changed job will not match any of the national profiles, or matching is unsuccessful, then it should be put through the Local Evaluation Procedure (see Section 10) in the normal way. However, it may be sensible to delay completion of the JAQ until such time as the changes have ‘bedded down’, with agreement for back-dating of any pay increase as appropriate.

3.7

New jobs

It is standard job evaluation practice for proposed new jobs to be matched or evaluated as a desktop exercise, in order that a provisional pay band can be determined for recruitment purposes. This exercise should be carried out by experienced matching or evaluation panel members, who will be advised by appropriate management and staff representatives from the relevant sphere of work.

Once the new job has been in operation for a reasonable period of time so that the jobholder is able to provide comprehensive information, then the job should be matched or evaluated in accordance with the appropriate procedure.

New jobs which are likely to become commonly occurring across the health service, but which do not match any of the published profiles, should be locally evaluated and then referred to NHS Staff Council for consideration as to whether a national profile should be produced. If a national profile is subsequently agreed at a different pay band from the initial local evaluation, then banding for the individuals concerned will need to be retrospectively adjusted.”

The Claimant did not expressly rely on paragraph 3.6 in section 10 of the Second Edition of the Job Evaluation Handbook. However, it is relevant to note that that paragraph assumed that there would be a re-evaluation of a job which changed significantly.

The Third Edition of the Job Evaluation Handbook was published in February 2010. Chapters 1 and 2 contained provisions which addressed the status of the Job Evaluation Handbook. Thus, paragraphs 1.1, 1.3 and 1.4 in Chapter 1 (headed “Introduction to Job Evaluation”) provided as follows:

“1.1

This version of the Job Evaluation (JE) Handbook incorporates NHS Staff Council advice which has been published since the second edition of the Handbook, as well as the factor plan and procedures to implement job evaluation (JE) in your organisation.”

“1.3

Chapter one provides the background to the JE scheme. Chapter two contains advice on the status of guidance approved by the NHS Staff Council, professional bodies and staff side organisations and whether advice is mandatory or advisory.

1.4

Chapters three and four contain essential guidance for future use of the scheme in a changing NHS, either when roles are new or change, or when the service is reconfigured.”

Chapter 2 (headed “The status of additional guidance”) included the following:

“1.

Guidance approved by the NHS Staff Council Executive

1.1

The Job Evaluation Handbook contains all of the guidance on interpreting and applying the AfC JE Scheme and profiles, which have been developed nationally and approved by the Executive on behalf of Staff Council. Further explanation of how this guidance should be used is available from the national training materials for matching and evaluation panels (see NHS Employers website as www.nhsemployers.org for further details on training).

1.2

On occasion, the Job Evaluation Handbook guidance may be supplemented by additional advice and questions and answers approved by the Executive on behalf of Staff Council, and published on NHS Employers website (www.nhsemployers.org), on the Job Evaluation web pages. This advice will be published to cover new situations as required.

1.3

All of the above guidance is binding on local matching and evaluation panels. No other guidance has the same status or is binding.”

The description of the contents of the Job Evaluation Handbook as “guidance” is not always apt. At least some parts of the Job Evaluation Handbook define the job evaluation scheme. This applies, for example, to the scoring chart, which set out the weighting scores to be awarded for each of 16 factors, with fixed scores available for various levels (numbering from 4 to 8) within each factor.

As with the Second Edition, the bulk of the Third Edition was concerned with the detail of how to conduct a job evaluation. However, there were some provisions, on which the Claimant relied, which addressed the question of when to conduct a job evaluation. Chapter 3 (headed “Mainstreaming Job Evaluation”) provided, inter alia, as follows:

“1.4

There is a need for the NHS JE Scheme to continue to be used for determining the banding of posts and consequently staff pay rates. This will apply to all new posts and posts which have significantly changed since they were last evaluated.”

“3.

Changed jobs/re-evaluation

3.1

One of the aims of AfC is to allow NHS organisations to operate more flexibly by developing roles in partnership. Detailed procedures need to be agreed locally.

3.2

All posts change over a period of time. For most, the job evaluation outcome will not normally be affected unless there are significant changes. Some job outcomes may be close to band boundaries and consequently the banding for these jobs may change with only limited changes to job demands.

3.3

Where a post holder and their manager agree that the demands of the post have changed, then a re-evaluation of the post needs to be carried out.

3.4

Organisations need to establish how changes to posts will be identified and verified. In some cases it may be obvious and there will be discussion around these changing roles. On other occasions it may be due to demographic, incidental or re-organisational changes.

4.

Re-evaluation of changed jobs

4.1

Where a job has changed there should be a re-match or re-evaluation and the whole job should be assessed, albeit with a reference back to the original match or evaluation. Just dealing with some of the factors could lead to inconsistencies.

4.2

Where a request for re-evaluation has been made, the post holder must submit evidence showing which skills and responsibilities applicable to the post, have changed. They should also provide details of the changed job demands that have led them to believe there is a change in factor levels.”

“8.

Summary

8.1

Organisations must ensure that the NHS JE Scheme is embedded in everyday operational processes. …”

These provisions replaced paragraphs 3.5 to 3.7 of section 10 of the Second Edition of the Job Evaluation Handbook. The Claimant relied on paragraphs 1.4 and 3.3 in particular as establishing that the Defendant was contractually obliged to conduct a job evaluation if either:

Paragraph 1.4 was not expressly set out in the Particulars of Claim, but the Claimant pleaded that the Job Evaluation Handbook as a whole was incorporated into her employment contract and pleaded that the Defendant was obliged to conduct a job evaluation because her job had significantly changed. Consequently, I do not accept the Defendant’s submission that the Claimant could not rely on paragraph 1.4.

Chapter 13 of the Third Edition of the Job Evaluation Handbook was headed “National protocol for local evaluation”. Paragraph 1.2 (which was in the same terms as paragraph 1.2 of Chapter 10 of the Second Edition of the Job Evaluation Handbook) provided as follows:

“1.2

Local evaluation is much more time-consuming than matching so it is important to be certain that a local evaluation is necessary before embarking on this route. For those jobs which do need to be evaluated locally the nationally agreed steps are set out below. Detailed procedures on how to implement these steps are to be agreed locally in partnership. Additional guidance on some aspects of this protocol is provided at the end of this section.”

Paragraph 2 of Chapter 13 set out the eight nationally agreed steps for local evaluation. Paragraph 3.5 (which was in the same terms as paragraph 3.3 of section 10 of the Second Edition) provided as follows:

“3.5

What is ‘a job’ for the purposes of local evaluation?

For evaluation purposes, the job to be described consists of:

• Those duties actually carried out by individual jobholder(s). The last year is generally a good guide on what should be taken into account as part of the job. The job is not an amalgam of what the jobholder might be required to do in other circumstances, nor of what the jobholder’s colleagues do. The jobholder is treated for evaluation purposes as being typical of the group of jobholders they represent.

• Those duties acknowledged by the jobholder and their line manager, either explicitly (through you having been asked to undertake the duties) or implicitly (through not being told not to undertake particular duties), to be part of the job. These may be more, or less, than the duties listed on a formal job description.”

The provisions which I have quoted from the Third Edition of the Job Evaluation Handbook were also contained in the Fourth Edition, published in July 2013.

I do not accept the Defendant’s contention that none of the Job Evaluation Handbook had contractual effect. It was published by the NHS Staff Council and was referred to in Part 2 of the Terms and Conditions Handbook (which it is accepted had contractual effect) as setting out the basis of job evaluation, which underpins the NHS pay scheme.

The Defendant pointed out that the Job Evaluation Handbook itself referred to its contents as guidance, and some parts of it may have been no more than guidance, but other parts were more than that. Moreover, some parts of the Job Evaluation Handbook were also described as “mandatory” (see paragraph 1.3 in Chapter 1 of the Third Edition), “essential” (see paragraph 1.4 in Chapter 1 of the Third Edition) and “binding on local matching and evaluation panels” (see paragraph 1.3 in Chapter 2 of the Third Edition).

In my judgment, the provisions of Chapter 3 of the Third Edition of the Job Evaluation Handbook which I have quoted were incorporated into the Claimant’s contract of employment and had the effect that, if the Claimant requested a job evaluation, the Defendant was contractually obliged to conduct a job evaluation if either:

It is unnecessary for me to decide whether, as the Claimant contended, the Defendant was under the same obligation even if the Claimant did not request a job evaluation.

The parties largely agreed on what was meant by a “significant” change. The context is to be found in the job evaluation scheme itself and, in particular, in the scoring system and in the weighting score which was given to the Claimant’s job when it was evaluated in 2005. A change would not be significant unless it could result in a sufficiently large increase in that score to place the Claimant’s job in a different band. The parties agreed on using the word “could” rather than “would”: an employee does not have to show that his or her job will be, or is certain to be, re-banded, in order to demonstrate that there has been a significant change in his or her job. It is sufficient that the change could have that effect.

In my judgment, paragraph 3.3 of Chapter 3 of the Third Edition has to be read together with paragraph 1.4. In that context, it can be seen that the sort of change referred to in paragraph 3.3 is a significant change. It is understandable that an agreement between the Claimant and her manager that her job had changed significantly should lead to a re-evaluation of her job. But it cannot have been intended that an agreement that her job had changed in an insignificant way should lead to a re-evaluation of her job.

The Defendant has disclosed three versions of its HR Handbook for Managers (“the HR Handbook”), dated 31 March 2008, January 2010 and March 2011.

The purpose of the HR Handbook is stated in the introduction, which is in the form of a “Dear Colleague” letter from the Defendant’s Director of Human Resources & Organisation Department to managers employed by the Defendant. This states, inter alia:

“The purpose of this handbook is to help you familiarise yourself with HR processes whilst managing your staff.”

The HR Handbook contained a section headed “Grading Review Procedure” or (in the March 2011 edition) “Banding Review”. As set out in the January 2010 edition, this section provided, inter alia, as follows:

“MANAGEMENT REQUEST FOR GRADING REVIEW

Where you require a new post to be graded a full set of documentation should be sent to the relevant Human Resources Adviser with the attached Grading Review Form (which can be requested from the HR Dept.).”

“Where you wish to change/enhance an existing post, a revised set of documentation as above ( … ) together with the old documentation should be sent to the relevant Human Resources Adviser.”

“INDIVIDUAL EMPLOYEE REQUEST FOR GRADING REVIEW

Where an individual employee requests a grading review, you should in the first instance establish and document how the employee feels the post has changed from the existing job documentation.

After having assessed whether these changes to the job documentation are agreed, you should forward the revised documentation together with the Grading Review Form and previous post documentation.

Where you do not agree the changes to the post, the employee should be counselled as to which duties/responsibilities he/she should refrain from carrying out. The relevant Human Resources Adviser should be contacted for advice.

Where an employee either refused to refrain from specified duties or where a Grading Review is insisted upon the documentation should be forwarded with the [sic] your comments/concerns entered on the Grading Review Form.”

The equivalent section in the 31 March 2008 edition was in substantially the same terms. The last paragraph which I have quoted was omitted from the “Banding Review” section in the March 2011 edition. The Claimant relied on that paragraph as giving her a contractual right to insist on a job evaluation. I do not accept that it had this effect. Likewise, I do not accept the Claimant’s contention that the HR Handbook placed a contractual obligation on the Defendant to conduct a job evaluation whenever a job was changed or enhanced.

I am not persuaded that the relevant parts of the HR Handbook constituted a contractual document. The HR Handbook was not expressly incorporated into the Claimant’s contract of employment. The provisions relied on merely contained procedural guidance from the Defendant’s HR department to its managers.

Even if they were contractual in nature, I would not interpret those provisions as giving the Claimant a greater contractual right to a job evaluation than I have found was conferred by the Job Evaluation Handbook. The use of the word “insist” in the HR Handbook assumes a right to insist, but does not define the circumstances in which such a right arises. The HR Handbook refers to an existing post being changed and does not use the qualifying adverb “significantly”, but it cannot have been intended that every change, whether or not significant, had to result in a job evaluation.

I turn now to the principal relevant events since the introduction of the new NHS pay scheme in 2004. The Defendant succeeded the North East London Mental Health Trust on 1 June 2008. It was not suggested that any issues arose out of the consequent transfer of undertakings. Accordingly, for the sake of simplicity, whether I am talking about the period before or after June 2008, I will refer to “the Defendant” and include in that term the Defendant’s predecessor.

By 2004 the Claimant was working as a consultant child psychotherapist in Barking and Dagenham. She was the most senior child psychotherapist in the borough of Barking and Dagenham, and the only consultant in that borough. She had supervisory responsibility in relation to the other psychotherapists in her borough.

Between 1999 and 2005 the Claimant was the lead clinician for Barking and Dagenham. As such, she was the representative for a multi-disciplinary team of about 20 professionals in her borough, including nurses, family therapists, psychiatrists, social workers and psychologists as well as psychotherapists. She represented these people and passed on information from management, but she did not supervise or manage them.

This arrangement changed in 2005. The role of lead clinician for a borough was replaced with the role of lead clinician for a discipline. In the case of the Claimant’s discipline, it was Alan Shuttleworth (the consultant child psychologist in Waltham Forest) who took on this role.

The Claimant’s job was evaluated in 2005 as falling within band 8C under the new NHS pay scheme. She was notified of the outcome of this evaluation on 23 November 2005. I have seen the Claimant’s job description. After the evidence had been concluded, the Claimant found and disclosed her scoring sheet. Her job was given a score of 651. The Claimant appealed unsuccessfully against this score. With effect from 1 October 2004, the Claimant was paid at pay point 47, i.e. the pay point immediately below the highest pay point in band 8C.

Alan Shuttleworth retired in November 2005 and at some stage in 2006 the Claimant took on the role which he had performed of lead clinician for child psychotherapy.

Meanwhile, the Defendant decided to create a new post of Head of Child Psychotherapy. This job was subjected to evaluation and was graded as falling in band 8D. The post was advertised in 2006. A successful candidate was identified, but she withdrew in December 2006 before taking up the post and no-one else was ever appointed to this post.

The Claimant said that Ms Boon seemed keen for the Claimant to apply for this post, but the email relied on by the Claimant did not support this claim. The Claimant did not apply for the post of Head of Child Psychotherapy. She said that this was because of how she felt following a disciplinary investigation which took place between December 2005 and March 2006, which had resulted in a letter from Ms Boon stating that the Claimant had inappropriately stored files and had failed adequately to maintain client records. The fact of this investigation supported Ms Boon’s evidence (which I accept) that she did not encourage the Claimant to apply for the post of Head of Child Psychotherapy and that she did not say in 2007 that she was “gutted” that the Claimant had not applied.

However, it was not in dispute that, following the withdrawal of the successful candidate, the Claimant was asked to perform some of the functions which would have been performed by the new Head of Child Psychotherapy. I will look in detail later at what additional functions the Claimant took on. There was a dispute as to whether there was any significant change in January 2007 in what the Claimant actually did, given the additional responsibilities which she had already taken on following the departure of Alan Shuttleworth. It is unnecessary for me to resolve this dispute, as it is sufficient to focus on what her job actually was after January 2007.

There were discussions in 2007 between the Claimant, Dr Rossouw and Ms Boon about the future of the leadership of the child psychotherapy discipline. They discussed the idea that the post of Head of Child Psychotherapy could be a tenured post, held by consultants in rotation for two years at a time. By 24 July 2007, the Claimant was reporting to her colleagues that she had been offered this job for 2 years. I have no doubt that Dr Rossouw and Ms Boon said encouraging and supportive things to the Claimant from time to time, but I find that she was never actually offered the job. It was intended to advertise the post internally and invite expressions of interest before making any appointment, but the post was never advertised. Instead, the proposal to create this post was postponed in the light of a major review being conducted by the Defendants, the Psychological Therapies Review.

Meanwhile, the position was as set out by Ms Boon in an email of 15 August 2007:

“In the meantime [the Claimant] has kindly agreed to continue to represent Child Psychotherapy at CAMHS Heads of Disciplinary meetings and to act as focal point for child psychotherapy until a clearer way forward is identified.

This arrangement with the Claimant was informal, but it was recognised, for example, by the Claimant being referred to as “Lead Psychotherapist” in documents such as an email from Ms Boon dated 13 March 2008.

On 18 June 2008 the Claimant wrote to Ms Boon to ask whether she was now in a position to appoint the Claimant to the post of Head of Child Psychotherapy. Ms Boon replied on 30 June 2008:

The Claimant replied on 26 August 2008. She acknowledged that the Head of Child Psychotherapy post would not be created. She expressed concern that the existing informal arrangement was unsatisfactory. She made the following proposal:

“In view of this, I would be very pleased to discuss your thinking about my taking a lead role across the Trust. I have been wondering whether it would be possible for the ring-fenced time devoted to this role to be treated as band 8d sessions. This would have the advantage of giving my position some clarity and authority, which has been missing in my present role during the past year.”

The Claimant was asking to be paid more. In fact, her proposal that part of her job be banded at a higher band than the rest of her job was inconsistent with the basis of the NHS pay scheme, which was the entire job was evaluated and allocated to a band. But Ms Boon and Dr Rossouw supported her proposal. This was set out in an email dated 22 September 2008 from Ms Boon to Stephanie Dawe, the Chief Nurse and Executive Director of Integrated Care. Ms Boon wrote:

“As you are aware we took the decision to review the vacancy of 8d head of child psychotherapy and replace this with a 0.5 8c post and a 0.5 band 7 psychology post and also deliver some CIP last year. Since this time Eve Grainger has kindly been leading on child psychotherapy across the Trust in an informal way pending the outcome of the psychological therapies review.

Trudie and I have been working with Eve to review her job plan and in this context Eve has raised the issue of leadership for child psychotherapy across the trust. We all agree that the psychological therapies review has not provided us the opportunity to address this issue corporately as I had hoped and it is unreasonable to expect Eve to continue to pick up this responsibility via such an informal arrangement.

I am keen to address this and have agreed to draw up a role description for a lead child psychotherapist for NELFT and to invite expressions of interest form [sic] the consultant psychotherapists in the Trust.

I have explained to Eve that it is not possible to make this role a full time 8d position as the direction of travel for the Trust is to move towards fewer band 8d posts and above. However Eve has reasonably asked me to consider whether it is possible for the number of sessions identified for this role could be banded at an 8d level if not the whole post. Perhaps another way of achieving this could be via a responsibility allowance payment although I suspect A4C makes this difficult.

I am keen to support Eve’s request and to ensure that the leadership of child psychotherapy in the Trust is valued. Please can you advise what the corporate position on this request is.”

The Claimant argued that this letter evidenced an agreement, for the purposes of paragraph 3.3 of Chapter 3 of the Third Edition of the Job Evaluation Handbook, that the demands of the Claimant’s post had changed. I do not accept this submission. Quite apart from the fact that the Third Edition was not published until 2010, this email does not evidence an agreement that the Claimant’s job had changed significantly. On the contrary, the starting point for the request made by the Claimant and supported by Ms Boon and Dr Rossouw was that, viewed overall, the Claimant’s job remained a band 8C job.

Ms Dawe replied as follows on 22 September 2008:

“Thank you for your email below. The Trust position in relation to Senior Clinical Bandings remains unchanged from what has been publicly stated. We are an Organisation that has an above average “rich” skill mix and need to progress towards a position of increased capacity within existing budgets. I would of course be happy to discuss further regarding pace of change and process, however the direction of travel continues.”

The Claimant received a copy of this email and was told that it was a final decision. On 6 October 2008 Ms Boon then produced a draft role description and time allocation for four lead roles within the Specialist Services Directorate, i.e.:

This was a role description, rather than a job description. It only described that part of the Claimant’s job which consisted of the role of Lead Child Psychotherapist. Although described as a draft, it was not replaced by a final version and was treated as the description of the Claimant’s role.

The accompanying time allocation indicated that the Claimant was expected to spend about 17 hours per month on this role. That was equivalent to 1 “session”, i.e. 3.9 hours per week. Although the Claimant was told this in 2008, she did not regard one session per week as adequate and there is some support for her evidence that she was treated was having two sessions per week to work on her lead role:

On 25 August 2010 the Claimant sent an “Application for Grading Review” to Ms Boon, with supporting documents. Ms Boon replied, inter alia, as follows on 20 September 2010:

“As you are aware the Operational Directorate lead for CAMHS has now transferred to Bob Edwards and it would seem more appropriate for Bob and Pam Grimes to agree your revised job description and to submit it for grading rather than myself at this time.”

This letter was copied to Mr Edwards, but he did nothing in response to it. The enclosures to the Claimant’s letter of 25 August 2010 were not forwarded to Mr Edwards on this or any subsequent occasion.

The Claimant sent a chasing letter to Mr Edwards on 18 January 2011. She also wrote to Mr Edwards to claim that she was entitled under paragraph 6.32 of Part 2 of the Terms and Conditions Handbook to be paid at the next pay point up from her current banding.

The Claimant had to send a further chasing letter on 1 June 2011, which was addressed to the Director of Human Resources and copied to Mr Edwards. This finally prompted a response from Mr Edwards on 14 June 2011. He wrote as follows:

“I note your comments regarding your application for a grading review of your post. The comments you make about the Psychological Therapies review still hold to be true, in that the review itself has of course now been completed, but is yet to be implemented across NELFT.

The review will be implemented in CAMHS later this year and this will lead to a new structure for Psychological Therapies being put in place within the service. This will lead most likely to having a single lead therapist in the service, with a hierarchy of grades beneath.

I do not believe therefore, that it is appropriate to consider applications for re-grading of posts at the present time, pending implementation of the review. I am not therefore minded to consider your application further at this time.

As regards to the second point, you make. I am unclear on what basis your Union adviser Will Gilley, has suggested that you will be eligible to be paid at the next pay point from your current banding. I am unaware of any formal written agreement between Sue Boon and yourself from 2007, regarding your acting status and there is, as far as I am aware, no Change Form having been completed to that effect, on your file. Clearly, if you can provide evidence to support your view, I would be happy to consider your request further, but again I do not feel it is appropriate to exceed [sic] to your request for an additional payment at this time.”

The Claimant did not follow up the request to provide evidence. On the other hand, the Claimant had been given no indication that the documents which she had originally provided to Ms. Boon on 25 August 2010 had not been considered by Mr Edwards.

Although Mr Edwards’s only stated response to the Claimant’s application for a grading review was that he considered that it was premature, he acknowledged that one of the factors in his decision was that there were concerns about her performance, which were about to become the subject of a disciplinary process. That was not a legitimate justification for refusing a re-evaluation, if the Claimant was entitled to one.

Mr Edwards also said that he spoke to Ms Briscoe and was told that the Claimant’s job had not changed sufficiently to merit a re-banding. However:

The disciplinary process commenced in 2011 led to a final written warning dated 8 August 2012, but then to an appeal by the Claimant and a decision dated 20 November 2012 which allowed the Claimant’s appeal. Meanwhile, the Claimant was made to work off-site in 2011, was off work as a result of work-related stress from January to May 2012 and did not return to work on her clinical duties until August 2012 and on her lead responsibilities until November 2012.

In late 2012 Dr Smith conducted a consultation process which led to organisational changes in CAMHS in 2013. In particular, the two 8D jobs being undertaken by Lynn McCandless and June Ferrell were replaced with two jobs which were evaluated and placed in band 8C. Lynn McCandless and June Ferrell “slotted in” to these new jobs.

On 31 December 2013 the Claimant sent a letter to Gillian Mills, the Integrated Care Director for Barking and Dagenham, entitled “Grading Review Application”, in which she said that she was requesting a review of her grading for the five years from August 2007 to December 2012, when she was “acting up” as an 8D Head of Child Psychology.

Ms Ward was asked to consider this request. She met the Claimant, but concluded, in an email dated 16 April 2014, that this was not an “acting up” situation. Ms Ward did not address in that email the question whether, regardless of whether she was “acting up” to a different job, the Claimant’s job had changed so significantly that there ought to be a grading review.

Meanwhile, Dr Smith conducted a further review, which resulted in the replacement of the Claimant’s job and Amanda Jones’ job with two jobs which were evaluated and placed in band 8C. The Claimant and Amanda Jones “slotted in” to these new jobs. Dr Smith’s evidence was that the Claimant’s new job was “hugely similar” to her old one, and the Claimant agreed with this as a general proposition in cross-examination, while pointing to various differences in her witness statement.

On 20 June 2014 the Claimant submitted a grievance, complaining that the Defendant had not recognised the increase in content and responsibility of her role. This grievance was rejected for the reasons set out in a letter dated 20 March 2015.

The Claimant appealed. Her appeal was considered by Ms O’Donnell. For the reasons set out in her letter of 3 July 2015, Ms O’Donnell dismissed the appeal, save that she decided that the Claimant should receive an ex gratia payment in the amount of the difference between her actual salary and the salary which she would have been paid if her job had been in band 8D, but only in respect of one session per week.

The Claimant contended that her job had significantly changed and that the Defendant was consequently obliged to carry out a re-evaluation of her job, either when she applied for a re-grading in 2010 and in 2013 or (if a request from her was not necessary) throughout the period from 17 December 2009 (i.e. six years before the Claim Form was issued).

A number of matters contributed to the Claimant’s belief that her job fell within band 8D. One was the fact that the proposed post of Head of Child Psychotherapy was placed in band 8D. The Claimant took on some, but by no means all, of the functions which would have been carried out by the holder of that post. Although there was a dispute about the details, she acknowledged in cross-examination that there were some of the duties specified in the job description for the Head of Child Psychotehrapy post which she did not carry out. The Defendant contended that the functions which the Claimant was asked to carry out were the same as those which had been carried out by Alan Shuttleworth in 2005. His job was in band 8C.

Another important factor for the Claimant was that two of the other four lead roles acknowledged in October 2008 were performed by individuals (Lynn McCandless and Julie Ferrell) whose jobs had been placed in band 8D. Against that, the Defendant pointed out that another lead, Amanda Jones, had a band 8C job. Each party suggested that some of these bandings may have been wrong. The Defendant also relied on the exercises in 2012 and 2014 which resulted in all four of these individuals doing jobs in band 8C which were to a large extent, but not entirely, similar to the jobs which they had previously done.

It is understandable that the parties should make comparisons like this, but they are no substitute for an evaluation of the Claimant’s job against the factors identified in the Job Evaluation Handbook.

The Job Summary in the Claimant’s 2005 job description stated that the Claimant was:

“• To be responsible for the provision of an efficient, effective, comprehensive and highly specialist psychoanalytical psychotherapy assessment and treatment service for infants, children and adolescents with severe, highly complex and persistent mental health problems, their carers/parents and families.

• To be responsible, clinically and managerially, for the initial setting up and running of The Listening Zone (TLZ) Young People’s Counselling Service. This includes direct responsibility for the development and day to day running of the service, clinical and managerial supervision of the clinical staff, and for managing the service budget.

• To provide highly specialist supervision, consultation, teaching, training for multi-disciplinary staff within the Specialist Tier Three CAMHS and staff of related agencies (health, education, social services, voluntary sector, youth criminal justice system).

• To undertake audit and research.

• To be responsible for the contribution to the evaluation, monitoring, development and implementation of the CAMHS Directorate’s operational policies and services.

• To work autonomously in clinical practice within the overall framework of the CAMHS Directorate’s and the Trust’s policies and procedures.”

There is no doubt that the Claimant was asked to take on additional duties. The October 2008 role description is the only contemporary statement, and therefore the best evidence, of those additional duties, as supplemented by oral evidence. Another change in the Claimant’s job came with the abolition of The Listening Zone.

As provided in paragraph 3.5 of Chapter 10 of the Third Edition of the Job Evaluation Handbook, the Claimant’s job for the purpose of evaluation consisted of those duties actually carried out by the Claimant and acknowledged by the Claimant and her line manager, either explicitly (through her having been asked to undertake the duties) or implicitly (through her not being told not to undertake particular duties), to be part of the job. Thus, in the absence of evidence from the Claimant’s line manager that the Claimant was told not to carry out certain duties, what the Claimant did was part of her job and it is not open to the Defendant to argue that parts of her work can be ignored as “voluntary”.

The October 2008 role description stated that there were two key elements to the role of Lead Clinician for Child Psychotherapy. These were clinical management and clinical leadership. Under the heading “Clinical Management”, the role description stated as follows:

“The Lead Child Psychotherapist will:

•

Provide line management for all Consultant Child Psychotherapist in the Trust in conjunction with the appropriate CAMHS Service Manager

•

Appraise all Consultant Child Psychotherapists in conjunction with the appropriate Service Manager

•

Agree a job plan with all the Consultant Child Psychotherapists in the Trust in conjunction with the appropriate Service Manager

•

To ensure that all Child Psychotherapists in the Trust have appropriate management appraisals and job planning arrangements in place

•

To performance manage the productivity of child psychotherapy across the Trust against agreed activity targets in conjunction with the Assistant Operations Director with responsibility for CAMHS”

The first three of these paragraphs recognised that the Claimant was to have new duties, in conjunction with the appropriate service manager, of providing line management to, appraising and agreeing job plans with the Defendant’s other consultant child psychotherapists. There were (subject to vacancies) three of these, i.e. one in each of the other boroughs. Each of them had a job in band 8C. The Claimant was also involved in the recruitment exercises necessitated by any vacancy in these posts.

The last two paragraphs recognised that the Claimant had a management role in relation to all child psychotherapists in all four boroughs. Her role in 2005 had been limited to her own borough. In this sense, her new role was “Trust-wide” (a term which generated a great deal of debate at trial).

Under the heading “Clinical Leadership”, the 2008 role description stated as follows:

“● To provide clinical leadership in relation to child psychotherapy

● To ensure the discipline is represented appropriately in the Directorates cycle of business in agreement with the Assistant Operations Director with responsibility for CAMHS

● To engage all Child Psychotherapists and represent their views at a directorate and corporate level as necessary

● To take the lead in Child Psychotherapy in the development and implementation of a CAMHS service model

● To provide clinical supervision for all the Consultant Child Psychotherapists in the Directorate

● To ensure there are appropriate supervision arrangements in place for all Psychotherapists in the Directorate.”

The second and third of these paragraphs recognised that it was the Claimant’s role to represent all of the Defendant’s child psychotherapists. This required attendance at a number of meetings of various committees. It also inevitably required communicating the views of the Defendant’s management to those child psychotherapists. The Claimant gave evidence, for example, that she organised or spoke at away days and business meetings and led all input into consultations and reviews concerning child psychotherapy. The fourth paragraph indicated that the Claimant was expected to use her own initiative (“take the lead”) in certain policy matters (i.e. the development of a CAMHS service model). The fifth and sixth paragraphs again recognise the Claimant’s “Trust-wide” responsibility for all of the Defendant’s child psychotherapists.

As I have said, the NHS job evaluation scheme provided for jobs to be given a weighting score which was the sum of the individual scores for each of 16 factors. Once the Claimant had located the details of her job evaluation in 2005, it could be seen that:

The points available for these factors were as follows (with the points allocated to the Claimant’s job in 2005 underlined):

Since her job had a score of 651 in 2005, a further 24 points were required to take this score to 675 and thus over the threshold into band 8D. This could only be achieved if the score was increased in two or three factors. I will refer to each of these factors in turn. In doing so, I will quote from Chapter 5 of the Third Edition of the Job Evaluation Handbook, but that was in substantially the same terms as Chapter 2 of the Second Edition.

Chapter 5 of the Third Edition of the Job Evaluation Handbook provided, inter alia, as follows in relation to factor 3:

“This factor measures the analytical and judgemental skills required to fulfil the job responsibilities satisfactorily. It takes account of requirements for analytical skills to diagnose a problem or illness and understand complex situations or information; and judgemental skills to formulate solutions and recommend/decide on the best course of action/treatment.

Skills required for:

…

Level 4: Judgements involving complex facts or situations, which require the analysis, interpretation and comparison of a range of options.

Level 5: Judgements involving highly complex facts or situations, which require the analysis, interpretation and comparison of a range of options.”

I am not persuaded that the changes to the Claimant’s job could have taken it from level 4 to level 5 in this factor. The evidence did not include any specific examples of the Claimant having to make judgments which could properly be described as involving “highly complex”, rather than merely “complex”, facts or situations.

Chapter 5 of the Third Edition of the Job Evaluation Handbook provided, inter alia, as follows in relation to factor 4:

“This factor measures the planning and organisational skills required to fulfil the job responsibilities satisfactorily. It takes account of the skills required for activities such as planning or organising clinical or non-clinical services, departments, rotas, meetings, conferences and for strategic planning. It also takes account of the complexity and degree of uncertainty involved in these activities.

Skills required for:

…

Level 4: Planning and organisation of a broad range of complex activities or programmes, some of which are ongoing, which require the formulation and adjustment of plans or strategies.

Level 5: Formulating long-term, strategic plans, which involve uncertainty and which may impact across the whole organisation.”

Again, I am not persuaded that the changes to the Claimant’s job could have taken it from level 4 to level 5 in this factor. I was shown no evidence that the Claimant formulated anything which could be described as a long-term, strategic plan, let alone one which might impact across the whole of the Defendant’s organisation.

Chapter 5 of the Third Edition of the Job Evaluation Handbook provided, inter alia, as follows in relation to factor 7:

“This factor measures the responsibilities of the job for development and implementation of policy and/or services. It takes account of the nature of the responsibility and the extent and level of the jobholder’s contribution to the relevant decision making process, for instance, making recommendations to decision makers. It also takes account of whether the relevant policies or services relate to a function, department, division, directorate, the whole trust or employing organisation, or wider than this; and the degree to which the responsibility is shared with others.

…

Level 3: Implements policies for own work area and proposes policy or service changes which impact beyond own area of activity.

Level 4: Responsible for policy implementation and for discrete policy or service development for a service or more than one area of activity.

Level 5: Responsible for a range of policy implementation and policy or service development for a directorate or equivalent.

Level 6: Corporate responsibility for major policy implementation and policy or service development, which impacts across or beyond the organisation.”

I doubt whether the changes to the Claimant’s job would have taken it from level 3 to level 4 in this factor, but, with some hesitation, I find they could have done, and that they could therefore have increased the job’s score by 11 points (i.e. from 21 to 32 points). I say this because the role description recognised a role for the Claimant in policy development as well as implementation, albeit limited to her own discipline.

Chapter 5 of the Third Edition of the Job Evaluation Handbook provided, inter alia, as follows in relation to factor 9:

“This factor measures the responsibilities of the job for management, supervision, co-ordination, teaching, training and development of employees, students/trainees and others in an equivalent position.

It includes work planning and allocation; checking and evaluating work; undertaking clinical supervision; identifying training needs; developing and/or implementing training programmes; teaching staff, students or trainees; and continuing profession development (CPD). It also includes responsibility for such personnel functions as recruitment, discipline, appraisal and career development and the long term development of human resources.

The emphasis is on the nature of the responsibility, rather than the precise numbers of those supervised, co-ordinated, trained or developed.

Level 3:

a.

Responsible for day to day management of a group of staff or

b.

responsible for the allocation or placement and subsequent supervision of qualified staff or students or

c.

responsible for the teaching/delivery of core training on a range of subjects or specialist training or

d.

responsible for the delivery of core HR advice on a range of subjects.

Level 4:

a.

Responsible as line manager for a single function or department or

b.

responsible for the teaching or devising of training and development programmes as a major job responsibility or

c.

responsible for the delivery of a comprehensive range of HR services.

Level 5:

a.

Responsible as line manager for several/multiple departments or

b.

responsible for the management of a teaching/training function across the organisation or

c.

responsible for the management of a significant part of the HR function across the organisation.

Level 6: Corporate responsibility for the human resources or HR function.”

I find that the changes to the Claimant’s job could have taken it from level 3 to level 4 in this factor, and that they could therefore have increased the job’s score by 11 points (i.e. from 21 to 32 points). The “clinical management” part of the role description, as well as the last two paragraphs of the “clinical leadership” part, could be said to have moved the Claimant’s job from level 3(a) to level 4(a).

Mr Cordrey contended that the changes could have taken the Claimant’s job to level 5, but I do not accept this. I do not consider that her job could be brought within any of sub-paragraphs (a), (b) or (c) of level 5. Her management activities had increased so as to encompass all of the Defendant’s child psychotherapists, rather than just the child psychotherapists in Barking and Dagenham, but she did not have any involvement in the management of CAMHS as a whole.

Chapter 5 of the Third Edition of the Job Evaluation Handbook provided, inter alia, as follows in relation to factor 12:

“This factor measures the extent to which the jobholder is required to be accountable for their own actions and those of others, to use own initiative and act independently; and the discretion given to the jobholder to take action.

It takes account of any restrictions on the jobholder’s freedom to act imposed by, for example, supervisory control; instructions, procedures, practices and policies; professional, technical or occupational codes of practice or other ethical guidelines; the nature or system in which the job operates; the position of the job within the organisation; and the existence of any statutory responsibility for service provision.

…

Level 5: Is guided by general health, organisational or broad occupational policies, but in most situations the post holder will need to establish the way in which these should be interpreted.

Level 6: Is required to interpret overall health service policy and strategy, in order to establish goals and standards.”

I am not persuaded that the changes to the Claimant’s job could have taken it from level 5 to level 6 in this factor. The evidence did not include any examples of the Claimant acting in a way which could be said to have fallen within level 6 rather than level 5.

For these reasons, I find that the changes to the Claimant’s job could have resulted in an increase in the job’s weighting score of no more than 22 points (i.e. 11 points in factor 7 and 11 points in factor 9). An increase of 22 points would have taken the job’s weighting score to 673, which was a score within band 8C. Accordingly, the changes to the Claimant’s job could not have resulted in a change of band, and therefore the job had not changed significantly within the meaning of the Job Evaluation Handbook.

It follows that the Defendant was not obliged to arrange a job evaluation for the Claimant.

In those circumstances, it is unnecessary for me to decide whether the Claimant waived any right she might have had to a re-evaluation. However, I should record my view that, in the context of the uncertainty generated by the Defendant and the delays occasioned by the Defendant (e.g. in response to the Claimant’s application in 2010 for a grading review), I would not have found that the Claimant’s actions (or inaction) were such as to constitute a waiver of any rights she might have had.

For the reasons which I have given, I find that the Defendant was not in breach of contract and I dismiss the Claimant’s claim.