Keith Crane v Secretary of State for the Department for Environment, Food and Rural Affairs (Defra)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 24 June 2022 |
| Neutral Citation | [2022] EWHC 1626 (QB) |
| Docket Number | Case No: QB-2021-000304 |
| Court | Queen's Bench Division |
| Year | 2022 |
[2022] EWHC 1626 (QB)
Mr Justice Choudhury
Case No: QB-2021-000304
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Oliver Segal QC and Darshan Patel (instructed by Thompsons Solicitors) for the Claimant
Clive Sheldon QC and Jack Feeny (instructed by Government Legal Department) for the Defendant
Hearing dates: Thursday 31 March and Friday 1 April 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on Friday 24 June 2022. ………………………..
The First to Third Claimants (together “the Individual Claimants”) are employed by the Defendant and are members of the Fourth Claimant, the Public and Commercial Services Union (“PCS”), a trade union recognised by the Defendant for the purposes of collective bargaining. The union subscriptions payable by the Individual Claimants to PCS were, until 30 January 2015, collected by means of ‘check-off’ arrangements whereby deductions were made directly from their salaries through the payroll system by the Defendant and paid to PCS. The principal issues in this case are: (a) whether the Individual Claimants had at the material time a contractual entitlement to check-off; (b) if so, whether the Individual Claimants had accepted a variation of their contracts of employment so as to exclude check-off or had waived the breach of contract arising from the removal of check-off; and (c) whether PCS has an entitlement to bring a third-party claim against the Defendant pursuant to the Contracts (Rights of Third Parties) Act 1999 (“the 1999 Act”) in respect of the subscriptions payable by check-off.
This is the fourth claim brought by PCS and its members to establish a contractual right to check-off, the previous ones being against different Government departments. The others are Hickey & another v Secretary of State for Communities & Local Government [2013] EWHC 3163 (QB) (“ Hickey”), Cavanagh and others v Secretary of State for Work and Pensions [2016] EWHC 1136 (QB) (“ Cavanagh”) and, most recently, Cox v Secretary of State for the Home Department [2022] EWHC 680 (QB) (“ Cox”). In each of these cases, the claimants were successful in establishing the rights claimed in respect of check-off.
The parties are in agreement that the principal issues of contractual entitlement to check-off and the application of the 1999 Act raised in the present case are materially the same as those arising in Cox, the judgment in that case being one of mine. The Defendant acknowledges that, in these circumstances, this Court is likely to follow the decision in Cox in respect of those issues. The Defendant contends, however, that in relation to one issue, the position in the present case is materially different to that which was found in Cox. That issue is whether (assuming that check-off is a contractual entitlement) the Individual Claimants had accepted the variation to their contracts removing that entitlement or had waived the breach of contract involved.
Mr Sheldon QC, who appears with Mr Feeny for the Defendant (as they both did for the defendant in Cox), informs me that, whereas the government departments in Hickey and Cavanagh did not appeal against those judgments, the Home Secretary does intend to appeal the decision in Cox. Mr Sheldon invited me at the outset of this trial to consider staying the trial on all issues save for the variation/waiver issue and the impact this has on the claim under the 1999 Act pending the outcome of the appeal in Cox (assuming permission to appeal is granted), and permitting this hearing to proceed as a trial of two preliminary issues. I declined that invitation. It appeared to me that whatever the merits of the appeal in Cox, the determination of the claims in this case should not be delayed. Furthermore, should the Defendant seek to challenge the outcome of this matter it would be beneficial for the appellate court to have this Court's findings of fact on the contractual background.
As was the case in Cox, the claims here are brought as Part 8 claims and come before me for a determination on liability only. The parties have filed and served witness statements (with attached exhibits) from: on behalf of the Claimants, each of the Individual Claimants, Mr Mark Serwotka (General Secretary of PCS) and Mr Paul O'Connor (Head of Bargaining at PCS); and, on behalf of the Defendant, Mr Geoff Robbie (Head of Employee Relations in DEFRA). The parties agreed (as in Cox) that no live evidence needed to be heard as there was little in the way of factual dispute, although there were clearly differences between the parties as to the way in which certain documents are to be construed. My findings of facts are based on the witness statements and the attached exhibits.
Background
The origins of check-off
The origins of the check-off arrangements lie in collective agreements reached between the Government and the relevant trade unions in the 1960s. There was no direct evidence of such agreements before me: unsurprisingly, many of the documents from that period can now no longer be located. However, I was referred to a research paper, “The Check-Off. A Study of its Growth and Functions”, published by AI Marsh and JW Staples in 1966, which confirms that in July 1965 the Treasury offered to provide check-off to the staff associations recognised by the Government at that time (including PCS's predecessor), thus suggesting that this was the source of check-off for civil servants working for central Government.
The Codes
Prior to April 1996, the terms and conditions of service for Government employees were determined centrally and were largely uniform. The Treasury was responsible for pay bargaining with the relevant unions, and the terms and conditions centrally established were set out in the Civil Service Pay and Conditions of Service Code (“CSPCSC”). The CSPCSC was superseded in 1996 by the Civil Service Management Code (“CSMC”). As the CSPCSC and the CSMC (together “the Codes”) are historically common to all Government departments, the conclusions reached in Cox as to the meaning and significance of the Codes (insofar as relevant to check-off) in understanding whether there is a right to check-off apply equally in the present case. My conclusions, which are set out more fully at [3] to [11] and [49] to [57] in Cox, can be summarised as follows:
i) The CSPCSC contained a section on ‘Voluntary Deductions from Pay’, which included the following:
“4051 A civil servant who wishes to authorise deductions from his pay for any of the purposes or organisations listed in Annex 1 and 2 should obtain from the organisation concerned the standard form of authority approved by the Treasury, complete it and forward it to the organisation. The organisation will forward the completed forms … to the officer paying salary, wages or pension. … Deductions for union subscriptions will be made from the earliest date practicable after receipt of the authority. Notice of termination for authority should be given direct to the paying officer of the departments. However, this method of payment may be withdrawn in respect of union subscriptions in the circumstances described in paragraph 4100. …
4100. Subscriptions to nationally or departmentally recognised unions representing civil servants may be paid by means of deductions from the pay of members. However, in the event of official industrial action … and for the duration of such action, this method of payment may be withdrawn by the Official Side in whole or in part in respect of deductions payable to any unions with members officially involved in the industrial action. Staff will be advised by an office notice of any decision to withdraw this method of payment (“check-off”).”
ii) From 1996 onwards, the Defendant had the power to set his own terms and conditions for civil servants working in his department subject to those terms and conditions complying with the CSMC.
iii) The CSMC did not itself set out terms and conditions of service.
iv) When exercising delegated powers permitted by the CSMC, departments and agencies had to bear in mind that “existing rights cannot be altered arbitrarily”: para 6 of the CSMC.
v) Paragraph 7.3 of CSMC deals with ‘Voluntary Deductions from Pay’, and provides:
Trade Union Subscriptions
7.3.3 Where departments and agencies offer arrangements for deducting subscriptions to trade unions, they must ensure that:
a. they comply with the relevant statutory provisions (including those concerned with political levies, where appropriate);
b. they recover the costs of the provision of the facility from the trade unions concerned; and
c. subscriptions deducted during the quarter in which an officer ceases to be a subscriber will be paid to the relevant trade union.
In the event of official industrial action by non-industrial civil servants, departments and agencies may withdraw the facility, in whole or in part, in respect of deductions payable to any union with members officially involved in the industrial action for the duration of that action. Withdrawal is subject to the approval of the Cabinet Office.
vi) Thus, the CSMC contained similar, albeit not identical, provisions to those in the CSPCSC in respect of check-off arrangements. However, in respect of the withdrawal of...
To continue reading
Request your trial
-
Secretary of State for the Home Department v James Cox
...ON APPEAL FROM THE HIGH COURT THE HONOURABLE MR JUSTICE CHOUDHURY [2022] EWHC 680 (QB) AND THE HONOURABLE MR JUSTICE CHOUDHURY [2022] EWHC 1626 (QB) AND THE HONOURABLE MR JUSTICE FREEDMAN [2022] EWHC 3188 (KB) Royal Courts of Justice Strand, London, WC2A 2LL Clive Sheldon KC and Jack Feeny ......
-
Colette Smith v The Commissioners for H.M Revenue & Customs (HMRC)
...[2022] EWHC 680 (QB) and Crane & Others v Secretary of State for the Department of Environment, Food and Rural Affairs [2022] EWHC 1626 (QB). 10 The Court of Appeal has granted the SSHD permission to appeal the Cox judgment insofar as it relates to the issue of waiver/variation and the 1999......