Cox and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWHC 680 (QB) |
| Year | 2022 |
| Court | Queen's Bench Division |
2022 March 3, 4; 23
Employment - Contract of employment - Incorporation of terms - Civil service employees paying trade union subscriptions by means of “check-off” arrangements whereby deductions made directly from salaries - Employer ending check-off arrangement - Whether employees having contractual entitlement to check-off arrangements - Whether trade union entitled to bring third-party claim to enforce arrangements -
The first to fourth claimants (“the individual claimants”) were members of the fifth claimant, a trade union recognised by their employer, the Secretary of State, for the purposes of collective bargaining. Until 1 December 2014 union subscriptions were collected by means of “check-off” arrangements, whereby deductions were made directly from members’ salaries through the payroll system and paid to the union. After the Secretary of State’s decision to cease those arrangements came into effect, the union lost a large number of members who did not sign up to direct debit payment of subscriptions. The union lodged a collective grievance but it did not proceed, the Secretary of State having insisted that it be brought by or on behalf of named individuals. The individual claimants started working for the Secretary of State in 2001, 1987, 2006 and in the late 1970s respectively. None of them had a contract of employment, instead they held a summary statement of the principal terms and conditions of their appointment, which expressly referred to details of the employees’ conditions of service being in various codes and the staff handbooks. Historically, the terms and conditions of service for government employees were determined centrally and set out in the Civil Service Pay and Conditions of Service Code, with its rules and guidance expressly stated to be mandatory on employing departments. That code provided that “Subscriptions to nationally or departmentally recognised unions representing civil servants may be paid by means of deductions from the pay of members”, subject to a right of withdrawal of such method of payment for the duration of any official industrial action. After responsibility for pay bargaining was transferred to individual government departments, each department had the power to set its own terms and conditions for civil servants in that department subject to terms and conditions complying with the Civil Service Management Code 1996, which contained similar provisions to the earlier code in respect of check-off arrangements and expressly stated that existing rights could not be altered arbitrarily. The individual claimants brought proceedings under CPR Pt 8 to determine (1) whether they had a contractual entitlement to check-off and, if so, (2) whether the union had an entitlement to bring a third-party claim against the Secretary of State in respect of the subscriptions payable by check-off, pursuant to section 1(2) of the Contracts (Rights of Third Parties) Act 1999F1.
On the claim—
Held, (1) that, although the individual claimants’ summary statement of principal terms and conditions of appointment did not set out any provisions as to check-off, check-off was clearly referred to in documents identified in the summary as containing the relevant terms and conditions of service; that, applying settled legal principles, those documents and their terms were apt to be incorporated into the employment contract; that since check-off was an important facility of real benefit to the employees and the union, the wording of the relevant codes was of a contractual nature and did not conflict with any other provision in the documentary material, there was sufficient detail and certainty to render the provisions workable without more, and the provisions were contained in documents containing other legal obligations, the check-off provisions were apt for incorporation into the individual claimants’ contracts of employment; that there were no grounds for implying a term that check-off could be removed on reasonable notice, since such a term was not so obvious as to go without saying; that it followed that the removal of check-off had amounted to a breach of the individual claimants’ contracts; and that, on the facts, the individual claimants did not waive the breach and/or acquiesce in it by continuing to perform their contracts (post, paras 44, 48, 49–58, 61, 62, 63, 67–73, 91).
(2) That the check-off provisions in the individual claimants’ contracts conferred a benefit on the union and, therefore, the union had the right to enforce those provisions in its own right pursuant to section 1(2) of the Contracts (Rights of Third Parties) Act 1999 unless, on a proper construction of the contracts, it appeared that the parties did not intend for them to be enforceable by the union; but that the intentions of the parties entering into a collective agreement were of no relevance to the construction of a term resulting from that collective agreement which was then incorporated into individual contracts of employment; that, therefore, any express intention on the part of the union and the Secretary of State disavowing enforceability of the check-off provisions at a collective level was not a matter to be taken into account in construing the individual contracts; that, accordingly, the check-off provisions were enforceable by the union pursuant to section 1(2) of the 1999 Act; and that, although the second and fourth claimants entered into contracts before the date when, pursuant to section 10, the Act applied, by moving to annualised hours working and moving to full-time work respectively, they changed fundamental terms of their employment relationship with the Secretary of State after that date and thereby entered into new contracts and, accordingly, the union could also rely on the 1999 Act in respect of their claims (post, paras 80–81, 87–89, 91).
The following cases are referred to in the judgment:
Abrahall v Nottingham City Council
Alexander v Standard Telephones & Cables Ltd [
Cavanagh v Secretary of State for Work and Pensions
Department for Environment, Food and Rural Affairs v Robertson [
Farnsworth (FW) Ltd v Lacy
Hickey v Secretary of State for Communities and Local Government
Hooper v British Railways Board [
Hussain v Surrey and Sussex Healthcare NHS Trust
Keeley v Fosroc International Ltd
Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd
Morris v C H Bailey Ltd [
Mulchrone v Swiss Life (UK) plc
Nisshin Shipping Co Ltd v Cleaves & Co Ltd
Royal Bank of Scotland plc v McCarthy
The following additional cases were cited in argument or referred to in the skeleton arguments:
Alan (WJ) & Co Ltd v El Nasr Export and Import Co [
Arnold v Britton
Cantor Fitzgerald International v Callaghan [
Ford Motor Co Ltd v Amalgamated Union of Engineering and Foundry Workers [
Security and Facilities Division v Hayes [
Wandsworth London Borough Council v D’Silva [
CLAIM
By a Part 8 claim form dated 9 October 2020, the first to fourth individual claimants, James Cox, Malcolm Davey, Owen Hughes and Denise Speakman, and the fifth claimant trade union, the Public and Commercial Services Union, brought a claim against the employer of the individual claimants, the Secretary of State for the Home Department, for determination of liability only. The issues were, inter alia: (1) whether it was a term of the individual claimants’ contracts that they were entitled to the continued collection of their union subscriptions by means of check-off (direct deduction from salaries through the payroll system); (2) whether it was an implied term that check-off could be removed by the employer giving reasonable notice; (3) whether the employer breached the individual claimants’ contracts by removing check-off when it did and/or without reasonable notice; (4) whether the individual claimants affirmed the contracts and waived any breach through ongoing performance under the contracts; (5) whether the parties did not intend that the term as to check-off would be enforceable by the union pursuant to section 1(2) of the Contracts (Rights of Third Parties) Act 1999; and (6) which, if any, of the individual claimants entered into contracts on or after 11 May 2000.
The facts are stated in the judgment, post, paras 1, 12–18, 26–30.
Oliver Segal QC and Darshan Patel (instructed by
Clive Sheldon QC and Jack Feeny (instructed by
The court took time for consideration.
23 March 2022. CHOUDHURY J handed down the following judgment.
Introduction1 The first to fourth claimants...
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