[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Millard v Grampian Joint Fire Board [1999] ScotCS 303 (21 December 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/303.html Cite as: [1999] ScotCS 303

[New search] [Help]

Introductory

The pursuer in this action is an employee of the defenders, Grampian Joint Fire Board, who are the statutory successors to the former Grampian Regional Council by whom the pursuer was employed, in the Grampian Fire Brigade, prior to the re-organisation of local government in terms of the Local Government etc. (Scotland) Act 1994.

The summons in the action, as amended at the bar during the course of the Procedure Roll discussion before me, and taking account of the Minute of Amendment No.10 of process, allowed by the interlocutor of 2 March 1999, the existence of which was overlooked by those responsible for preparing the print of the Closed Record, No.11 of process, contains these conclusions:

The facts averred

To a large measure the facts surrounding the controversy between the parties are not in material dispute. Prior to 16 November 1987 the pursuer was employed by the defenders' statutory predecessors, to whom I shall refer for simplicity as the defenders, in the Grampian Fire Brigade with the rank of a Station Officer. As appears from the Statement of Terms of Employment No.7/1 of process, on 10 November 1987 the pursuer's employers offered him a promoted appointment as an Assistant Divisional Officer in their South Division, the appointment to begin on 16 November 1987. The offer was accepted by the pursuer on 12 November 1987.

Against the side-note "probationary service" the Statement of Terms of Employment contains the following:

Preceding that section of the Statement of Terms of Employment were provisions relating to working hours and salary details. In regard to the working hours it was set out:

In relation to the salary details the passage therefrom pertinent to the present proceedings is:

Despite the fact that the de quo of the action appears to concern flexible duty allowance the pleadings for both parties contain little by way of averment concerning the particular terms and conditions attending the payment of that allowance. I was informed orally by counsel to the effect that the allowance (equal to a one-fifth increase on the employee's gross salary) was paid as a counterpart to the employee's agreement to be called out during an "on-call" period additional to what would otherwise be seen as the normal working week in the professional fire brigade. I was further informed by counsel that the flexible duty system and the flexible duty allowance did not come as essential aspects of appointment to a particular rank within the fire service. In other words a given station officer might, or might not, be working the flexible duty system and receiving the flexible duty allowance. I was invited by counsel to proceed for present purposes on the basis of those oral explanations.

Reverting to the narrative of the facts, it appears that after his appointment on a probationary basis to the promoted post of Assistant Divisional Officer but before the expiry of the six month probationary period the pursuer committed, or it came to light that he had committed, an infraction of the statutory disciplinary code contained in the Fire Services (Discipline) (Scotland) Regulations 1985. Disciplinary proceedings were instituted and the pursuer was suspended from duty on 27 January 1988. It appears that he remained under that suspension until after the conclusion of the disciplinary procedure at appellate instance on 3 June 1988, on which date the Fire Brigade Disciplinary Tribunal constituted in terms of those regulations reversed the first instance decision of the Firemaster of 9 May 1988 that the pursuer be required to resign from the service and substituted a punishment of reduction to the rank of Station Officer. (The decision of the Disciplinary Tribunal is contained in No.7/3 of process).

Following the decision of the Disciplinary Tribunal the Firemaster sent to the pursuer a letter dated 13 June 1988 (No.7/4 of process) the first two paragraphs of which read as follows:

The letter enclosed with it two copies of a "Statement of Terms of Employment", one of which it was said the pursuer should sign and return to the Firemaster. The format of the enclosed document is basically the same as that in No.7/1 of process. Against the side-note "working hours" one finds:

In relation to salary details the equivalent passage in this statement of terms of employment read:

Accordingly, putting matters shortly, the post of Station Officer offered to the pursuer following the Disciplinary Tribunal's decision that he be punished by way of reduction in rank was one which did not require the pursuer to be on call for 78 hours per working week and did not include in the salary the additional one-fifth allowance payable by way of a flexible duty allowance for that additional responsibility.

Although the pursuer did not sign the copy of the Statement of Terms of Employment as requested, he in fact took up the post of Station Officer which had been offered to him and it appears that he has since served in that post receiving the appropriate salary, but without being paid flexible duty allowance or being required to perform the additional responsibilities attendant on the payment of that allowance.

The Statement of Terms of Employment provided to the pursuer when he was offered the probationary post of Assistant Divisional Officer in November 1987 also contained against the side-note "conditions of service" the following:

The same provision is contained in the Statement of Terms of Employment relating to the offer of the post of Station Officer made on 13 June 1988.

At the date of both of those Statement of Terms of Employment there was in force an Agreement on Fire Officers Duty Systems [the "collective agreement"] reached in August 1984 within the National Joint Council for Local Authorities' Fire Brigades (No.7/5 of process) whence it appears that an earlier régime involving among others a "residential duty system" was replaced by a new régime of three duty systems whereof the flexible duty system constituted one such system. Paragraph 4 of the collective agreement, with the head note "transfer arrangements", is in these terms:

For completeness it should be added that it is averred that on 7 June 1995 the National Joint Council for Local Authorities' Fire Brigades issued to fire brigades and members of the National Joint Council a circular letter (No.7/7 of process) in these terms:

It is further averred on behalf of the pursuer (Closed Record p.9E, ff) that at the material time - namely his going to work as a Sub Officer in Elgin - he was unaware of the terms of paragraph 4 of the collective agreement. The averments on behalf of the pursuer continue thus:

The first plea-in-law for the pursuer is in these terms:

There thereafter follow pleas to the effect that the defenders being in breach of contract, the pursuer is entitled to damages and a plea to the effect that the defenders should be ordained to restore the pursuer to flexible duty.

Submissions

Although the defenders have a plea to prescription of the pursuer's claims as well as a plea to relevancy, I was invited to reserve that plea concerning prescription and in the event the only argument was directed to the relevancy of the pursuer's claim.

That argument fell broadly into two chapters.

In the first chapter of his submission that the pursuer's pleadings were irrelevant and that the action should be dismissed, Mr Napier, who appeared for the defenders, sought at the outset to undermine the whole basis of the pursuer's claim by contending in effect that acquisition of any permanent right to flexible duty allowance could only be achieved were the pursuer to have satisfactorily completed his probationary period as an Assistant Divisional Officer and to have been confirmed in that post. Since the pursuer, on his own averments, had not been so confirmed, any appointment to a flexible duty system fell. In an amplification of that proposition and echoing to some extent what was averred at p.7B in Answer 2 counsel for the defenders also suggested that the probationary period had been extended but implicitly by reason of the suspension from duty. Any entitlement to continue to receive the flexible duty allowance was contingent on the pursuer's satisfactorily passing the probationary period and being confirmed in post as an Assistant Divisional Officer and since neither of those events had occurred, there could be no breach of contract on the defenders' part in offering him the Elgin Station Officer posting after the Disciplinary Tribunal had decided that he should be punished by means of a reduction in rank.

As I understood it, the first response of Miss Dorrian, who appeared for the pursuer, to this chapter of the defenders' argument was, in summary, that the pursuer did not revert to being a Station Officer because he failed satisfactorily to complete the six month probationary period, but because he was demoted by virtue of the disciplinary proceedings. The six month probationary period had expired prior to the decision of the Disciplinary Tribunal. It had not been extended by any decision communicated to the pursuer. The decision of the Disciplinary Tribunal to reduce the pursuer in rank could only proceed on the basis that he had definitively acquired the rank of an Assistant Divisional Officer. The Firemaster's letter of 13 June 1988 (7/4 of process) referred to the pursuer's "demotion", which phraseology was inconsistent with the notion of his rank of Assistant Divisional Officer simply lapsing by reason of his having failed to satisfactorily complete a probationary period. Counsel's second response was, in summary, that from the moment that the pursuer took up duty as an Assistant Divisional Officer on the flexible duty system - that is to say, when he signed his acceptance of the offer of probationary employment as an Assistant Divisional Officer, he was transferred to the flexible duty system. Since, said counsel, service under the flexible duty system did not depend on the rank held by the employee, the very fact that the pursuer had begun to work the flexible duty system and to receive flexible duty allowance prior to his suspension from duty meant that by virtue of paragraph 4 of the collective agreement the pursuer was entitled to insist on continuing on that system and receiving that allowance irrespective whether his return to the rank of Station Officer occurred by way of punishment or by failure satisfactorily to complete a probationary period.

The second chapter of the argument proceeds on the assumption that Mr Napier's first submission is unsound and the pursuer is to be treated as unconditionally established in the flexible duty system, and entitled to flexible duty allowance, prior to 13 June 1988. In those circumstances, given that the Disciplinary Tribunal had reduced the pursuer to the rank of Station Officer, the only relevant restriction on the defenders' removing the pursuer from the responsibilities and advantages of the flexible duty system which was founded on by the pursuer in his pleadings are the terms of paragraph 4 of the collective agreement. It was accepted by counsel for the defenders that the terms of that paragraph formed, by incorporation, a term of the pursuer's contract of employment.

However, it was submitted by Mr Napier that there was nothing to prevent the pursuer's agreeing to work as a Station Officer on a duty system other than the flexible duty system. On a proper analysis, the averred and admitted facts put forward by the pursuer were consistent only with an expression of willingness to accept to what he had been offered. The pursuer had admittedly taken up the post; he had, without protest and for many years, worked on a duty system which was not the flexible system and had not received the flexible duty allowance; grievance procedures were referred to in the Statement of Terms of Employment and details thereof annexed to that document. Had the pursuer signed the Statement of Terms of Employment annexed to the letter of 13 June, and returned it to the Fire Master, there could be no question of the pursuer thereafter invoking paragraph 4 of the collective agreement. But the absence of signature did not matter where, as here, the pursuer had worked as the Station Officer in terms of the appointment offered to him. In that connection counsel thought it proper to place before the court the decisions of the Employment Appeal Tribunal in Jones v Associated Tunnelling Company Limited [1981] IRLR 477 and Aparau v Iceland Frozen Foods plc [1996] I.R.L.R. 119, from both of which it was plain that by continuing to work under altered terms of employment an employee may be held to have agreed to those altered terms. While the implication of agreement might not always follow where the alteration in the term was contained solely in the printed document and did not immediately impact on the employee's position, Mr Napier went on to stress that in the present case the pertinent parts of the Statement of Terms of Employment relating to the Station Officer's job at Elgin - viz. the hours of duty and the salary - were matters which impacted immediately and continuously on the pursuer. It was impossible to avoid the implication from the averred facts that the pursuer had consented to working on a system which did not entail the additional responsibilities and remuneration of the flexible duty system.

In her response counsel for the pursuer pointed to the averments on behalf of the pursuer that he was unaware of the terms of the collective agreement. Unless the pursuer were aware that he could object to being transferred from the flexible duty system he could not, said the counsel, consent to that transfer because the consent would not be informed. The defenders therefore had to tell the pursuer expressly that he could not be transferred to another duty system against his will. They had not done so. That apart, said counsel, the transfer of the pursuer to the post as Station Officer in Elgin was not voluntary in respect that it followed by reason of the Disciplinary Tribunal decision which gave him no option but to accept the post. At all events, said counsel, the averments that the transfer away from the flexible duty system was "not voluntary" merited inquiry and a proof before answer should be allowed.

Discussion

At one point in his response to Miss Dorrian's submissions Mr Napier suggested that in relation to the competing contentions as to whether the pursuer had lost the otherwise permanent rank of Assistant Divisional Officer - and the flexible duty allowance - by reason of demotion required by virtue of the decision of the Disciplinary Tribunal or had never achieved that status at all by virtue of the non-accomplishment of a satisfactory probationary period, the court was faced with what he described as "a choice of unrealities".

That might well be seen as a fair description of the positions adopted in argument in relation to the first chapter of the submissions. On the one hand, it seems to me that the reliance placed by Miss Dorrian (i) on the fact that the Disciplinary Tribunal reduced the pursuer in rank from Assistant Divisional Officer to Station Officer; (ii) the choice of language used by the Fire Master in the opening paragraphs of his letter of 13 June 1988 and (iii) the simple effluxion of the six months between November 1987 and June 1988 as matters establishing that the pursuer had been definitively appointed to the post of Assistant Divisional Officer overlooks not only the intervention of the suspension from duty, the Firemaster's requirement of the pursuer that he resign the service but also, more importantly, the fact that the decision of the Disciplinary Tribunal was not an act of the employer but that of independent tribunal. Conversely, there is an artificiality in the suggestion on behalf of the defenders that, looking solely to the pleadings, it may be held first that the pursuer's position as an Assistant Divisional Officer came to an end simply because he failed satisfactorily to complete a probationary period and, secondly, that his entitlement to the advantages and responsibilities of the flexible duty system lapsed because of its contingency on that satisfactory completion. Matters are further complicated by the oral explanation made at the bar that the flexible duty system did not effeir to the rank or post, which in turn led to the submission for the pursuer - perhaps contrary to the impression gleaned at first sight from the pleadings - that payment of the flexible duty allowance was not linked to the pursuer's being confirmed in post as an Assistant Divisional Officer but arose on his acceptance of the probationary post of Acting Divisional Officer.

Despite the lapse of time since these events in 1987 - 1988 and given the defenders' wish to reserve their plea to prescription, I have come to the view that were it necessary to decide the case on the basis of the contentions put forward in the first chapter of argument, it would not be advisable to do so without having heard inquiry.

I turn now to the second chapter of the argument which proceeds on the assumption that prior to 13 June 1988 the pursuer had effectively attained the non-conditional position of performing the obligations and receiving the rewards involved in the flexible duty system. On that assumption the contractual provision founded upon by the pursuer is that contained in the last sentence of paragraph 4 of the collective agreement which, for convenience, I repeat:

The reference to reduction to the rank of Sub Officer or below does not apply in this case. Accordingly, what was founded upon was the provision that transfer from the flexible duty system would not occur against the will of the person concerned.

In my opinion it is apparent that before an employer can be said to be in breach of this particular term of the contract of employment it is necessary that there be some overt expression of disagreement or protest on the part of the employee to his being removed from the responsibilities and rewards of the flexible duty system to a system entailing differing, perhaps lesser, responsibilities and commensurately lesser purely financial rewards. Some inner mental reservation will not suffice. The expression used in the collective agreement is transfer "against their will". In my opinion the terms of this provision of the collective agreement do not require the employer to obtain an express consent to a transfer to the different régime, but provide the employee with a basis upon which he can object to being transferred from the flexible duty system. Before the employer may be held to be in breach of this term there must be some contemporaneous expression of objection. The practical working of a flexible duty system must necessarily entail that in the absence of contemporaneously expressed objection, the employer is entitled to assume consent. The pursuer's averments make no reference to any objection expressed at the time. Counsel for the pursuer accepted that no such objection had been made and given the averment that the pursuer was unaware of the particular terms of the collective agreement counsel's acceptance is wholly consistent with that averment. However, I do not see that the pursuer's averred ignorance of the terms of his contract of employment can put the defenders in breach of contract had they not been in breach of contract were the pursuer to have been aware of his contractual rights.

It was, I think, suggested at one point in Miss Dorrian's submissions that the removal of the pursuer from the flexible duty system must necessarily have been against his will because it resulted from the reduction in rank ordained by the Disciplinary Tribunal. The same suggestion is made in the pleadings which I have quoted. In so far as that may have been suggested I would observe that while the pursuer may have had no option but to accept his demotion (unless he were to resign), if it is correct, as counsel for the pursuer stated in light of the oral explanation offered, that demotion did not necessarily entail the loss of the flexible duty allowance, the compulsory nature of the demotion does not attach to the loss of the duties and advantages of the flexible duty system. Put in other words, if service under the flexible duty system is not dependent on the attaining or holding of a particular rank - that being the basis upon which I was invited to proceed - the pursuer, while not entitled to protest his reduction in rank to Station Officer, could yet protest against the additional aspect of removal from flexible duty and accordingly it cannot be said that the removal from flexible duty was the involuntary result of the demotion.

In these circumstances I have come to the conclusion that the pursuer has not averred any basis upon which the defenders, when giving effect to the decision of the Disciplinary Tribunal, may be said to have been aware that the particular matter of the pursuer's reversion to a system of duty not involving the additional responsibilities and rewards of the flexible duty system was against the pursuer's will. In my view counsel for the defender was correct in his submission that the facts averred and admitted by the pursuer are consistent only with his having consented to work on a duty system which was not the flexible duty system. The defenders were accordingly not in breach of contract. That is sufficient for final disposal of the action.

I shall therefore accede to the defenders' motion that their first plea-in-law be upheld and the action dismissed.