Wray v The Board of Governors of Nort... [2010] NIIT 03980

THE INDUSTRIAL TRIBUNALS

CASE REF: 3980/09

CLAIMANT: John Anthony Wray

RESPONDENT: The Board of Governors of North Coast Integrated College

DECISION

The decision of the tribunal is that the claimant has been provided with a written statement of particulars which complies with Article 33 of the Employment Rights (Northern Ireland) Order 1996

Constitution of the Tribunal:

Chairman (sitting alone): Ms F Oliver

Appearances

The claimant appeared and was represented by Mr Martin Murphy of NIPSA

The respondent was represented by Mr Ian Randall of Peninsula Business Services Limited.

1. Sources of Evidence

The tribunal heard evidence from the claimant and from Mr Daniel Clarke, the bursar in the respondent school. The tribunal also considered the bundle of documents provided by the claimant and two further documents provided by the respondent.

2. The Claim and the Defence

The claimant claimed in his claim form that the respondent has failed to provide him with a written statement of particulars of employment contrary to Art 33 of The Employment Rights Northern Ireland Order 1996. The respondent states that it has provided the claimant with a written statement of his terms and conditions.

3. Issues

It is clear from the documents provided and the evidence given that this is a dispute regarding whether NJC terms and conditions applied in their entirety to the claimant’s employment from 1 November 1999.

4. Findings of Fact

(1) The respondent is an integrated college which was set up in 1996. It receives its budget from the education authority but operates independently. The staff is employed by the Board of Governors. The principal is Mr Jim Frizelle. Mr Frizelle is not the claimant’s employer.

(2) The claimant was employed as a technology and design technician by the respondent from 1 November 1999.

(3) He had previously worked in a similar capacity with Western Education and Library Board for approximately 16 years. When employed by WELB he was employed under NJC terms and Conditions.

(4) The only written documentation available at the time of the claimant’s appointment is a short letter dated 15 October 1999 offering the claimant the job of technology and design technician. The only reference to terms and conditions of employment is a paragraph which states.

It would be helpful if you could let the College know the particular scale point that you currently hold. Given the experience you have it would be our intention to maintain your present position and review it within your first year of employment.

(5) The claimant responded by letter of 18 October 1999 accepting the offer of the job and responding to the question about pay scales by indicating that he was on scale 13.

(6) There was further correspondence regarding pay scales and re-grading in May 2000 and January 2001 but these letters do not shed any light on the substantive terms and conditions of the claimant.

(7) A draft statement of Main Terms and Conditions of Employment was prepared on a date which is unclear from the evidence but which the parties seem to accept was in and around 2001. This document only came to light in relation to these present proceedings in November 2008 when the bursar discovered it in a previous Vice Principal’s file.

(8) The claimant cannot recall having seen this document prior to a meeting with Chairperson of the Board of Governors of the respondent school on

3 December 2008.

(9) The document entitled Statement of Main Terms and Conditions of Employment contained the following clause:

“There are no collective agreements which directly affect your main terms and conditions of your employment, but the National Joint Council terms of service have been used as guidelines for the purpose of pay and holiday entitlement.”

(10) In early 2007 the respondent issued a further document entitled Statement of Main Terms of Employment in order to ensure that all staff had a signed contract of employment. This initial document did not include any reference to NJC.

(11) Some members of staff were unhappy with what they saw was an omission in this regard and this was raised at a meeting with the principal on 2 April 2007. At this meeting the principal confirmed that staff were never employed under NJC terms and conditions although it does use the NJC terms and conditions as a guideline.

(12) The contract was amended to include a term stating:

Your salary is determined by taking the NJC rate applicable to your scale on a pro-rata basis.

(13) Most staff members accepted the revised document but the claimant continues to maintain that his statement of particulars of employment should include a statement that NJC terms and conditions apply.

(14) The respondent explained to staff at this time that as the College has no input into the terms and conditions decided by NJC it did not wish to be bound by them.

5. The claimant’s submissions

The claimant stated that he had always been employed under NJC terms and conditions. As evidence of this, he stated as follows:

(1) He was informed by the principal who employed him in 1999 that his terms and conditions would be the same as with his previous employers, Western Education and Library Board. WELB employees were employed under NJC terms and conditions.

(2) He was paid in accordance with the NJC salary scale.

(3) He pointed out that the Code of Practice for Boards of Governors in Grant Maintained Integrated Schools- of which the respondent is one- contained an agreement “to collectively adopt Teachers Salaries and Conditions of Service Committee and JNC documentation (for ancillary staff)”.

6. The respondent’s submission

The respondent contends that the NJC Terms and Conditions have never applied in their entirety to the contracts of employment in the school. The respondent accepts that it has used the NJC scales of pay for its employees and it continues to do so. The respondent relies on the following points:

(1) The letter of offer of employment dated 15 October 1999 merely states:

(2) This letter does not refer to terms and conditions. It simply refers to the rate of pay on a particular scale operated by NJC and which the respondent accepts it has used to determine the pay of its employees.

(3) At the time of commencement of the claimant’s employment, the respondent was unable to comply with the NJC Terms and Conditions as it did not have a pension scheme in place for ancillary staff. The respondent contends that this is further evidence that the school would not have entered into a contract which it could not fulfil.

(4) The respondent provided a copy of an undated and unsigned Statement of Main Terms and Conditions of Employment which the witness for the respondent believed had been prepared in 2002/2003. This document contains a clause as follows:

(5) The respondent considers that this is further evidence that NJC Terms and Conditions did not apply to this contract of employment.

7. The Law

Under Article 33 of the Employment Rights (Northern Ireland) Order 1996 an employee is entitled to a written statement of particulars of employment.

Article 33(2) sets out in detail the information which should be included in the statement.

Where an employer does not comply with Article 33 an employee may refer the matter to an Industrial tribunal.

Harvey on Industrial Relations and Employment Law analyses the position in relation to the corresponding sections in the Employment Rights Act 1996. After analysing the position in detail it is stated:

It is therefore concluded that whether the parties have reached (express or implied) agreement on the relevant term of the contract or not, the tribunal's jurisdiction in deciding what particulars 'ought to' have been given is limited to ensuring that the statutory statement accurately records what (if anything) was agreed, and does not extend to make an agreement for the parties. See Eagland v British Telecommunications plc [1990] IRLR 328, [1990] ICR 248, EAT; affd [1992] IRLR 323, CA.

[450]

The EAT's decision was affirmed by the Court of Appeal and at the same time the court disapproved the dicta of Lord Justice Stephenson in Mears v Safecar Security Ltd which suggested that in the last resort it was open to the employment tribunal to invent the terms where there was not enough material on the facts and circumstances to determine what would have been agreed, leaving the employment tribunal instead to determine what should have been agreed. An employment tribunal, said the Court of Appeal, has no power to invent particulars of terms of employment which the contract is not required to contain.

[451]

In Eagland Wood J said 'Section [ERtsA 1996 s 12] does not often rear its head, but when it does it poses problems which appear daunting to all but the stoutest of hearts (see Mears case infra), and yet the provisions ... were no doubt intended to supply a simple system whereby an employee and employer should each have a clear statement in writing of the terms and conditions of employment agreed between them, and a simple remedy by way of an application to an [employment] tribunal if there was a dispute as to failure or inadequacy in complying with the requirements of the statute'. The EAT in Eagland conveniently re-stated the principles to be adopted when proceedings are brought before a tribunal:

(1) When the proceedings are brought before a tribunal whether ss 11(1) and 12(1) or ss 11(2) and 12(2)—it is clear that the only remedy being sought is clarification of the agreed terms of employment or in those specific cases where it is permissible, a statement that no term has been agreed. Accordingly the first task for a tribunal is to make findings of the terms and conditions of the contract of employment as initially made and then to consider whether there have been any subsequent variations.

(2) If no statement has been given or any mandatory items are omitted, the tribunal, after receiving documentary and oral evidence, must decide details of the particular term to be inserted, whether by express agreement or by implication or indeed by variation. In the case of non-mandatory items, a tribunal must decide whether any agreement was reached, and only if it was, insert the term, otherwise to state 'no agreement'. A tribunal may also have to decide whether any terms agreed are tainted by illegality (see below).

(3) Having progressed to that point in its reasoning, a tribunal can then more easily decide upon the accuracy of the disputed particulars under s 12(2). The employment tribunal has only a limited jurisdiction in contract and its prime function is to establish the accuracy of the particulars in the statutory statement and not to recast the contract between the employer and the employee. It is not concerned with the fairness or unfairness of the relationship between the employer and the employee—it is the contractual position only which is relevant.

The tribunal considered the case of Eagland v British Telecommunications plc [1990] IRLR 328, [1990] ICR 248, EAT; affd [1992] IRLR 323, CA

[452]

8. Application of the Law and Findings of Fact to the Issues

Both versions of the Statement of Terms of Employment provided to the tribunal could fulfil the requirements of Article 33 and according to the respondent’s representative that is all that is required. However, the tribunal feels obliged to look further than that and to look at whether the contract of employment which commenced in November 1999 did in fact contain a term that it would be governed by NJC terms and conditions. In other words, at the time of commencement of the contract was it agreed either expressly or impliedly that the NJC terms and conditions governed the contract. The tribunal considers that the remarks of the Court of Appeal in England point to the tribunal having to consider this position. In particular at paragraph 18 Parker L.J. states ”the task of the tribunal is to find out whether the particulars in the statement accurately reflect the position”

The respondent has been consistent from at least early 2007 in stating that NJC terms and conditions do not apply and the respondent merely uses NJC for guidance. Prior to 2007, there is nothing to indicate that NJC applies to this particular contract. The letter of offer and acceptance do not say that NJC conditions apply. The earlier version of the Statement of Main Terms and Conditions of Employment expressly states that there are no collective agreements which directly affect the main terms and conditions but the NJC terms and conditions of service have been used as guidelines. This is in accordance with the position stated in early 2007. We accept the respondent’s explanation for their decision not to use NJC terms and conditions.

We find that that the claimant has not proved that his particulars of employment included a term that his contract would be governed by NJC terms and conditions.

9. Decision

At the time of commencement of proceedings the respondent had provided the claimant with a statement of particulars of employment which satisfies Article 33.

Chairman:

Date and place of hearing: 11 November 2009, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wray v The Board of Governors of Nort... [2010] NIIT 03980_09IT (28 January 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/03980_09IT.html Cite as: [2010] NIIT 3980_9IT, [2010] NIIT 03980_09IT

Industrial Tribunals Northern Ireland Decisions