Martin Cavanagh and Others v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE,The Honourable Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2016] EWHC 1136 (QB) |
| Docket Number | Case No: HQ15X01942 |
| Court | Queen's Bench Division |
| Date | 13 May 2016 |
[2016] EWHC 1136 (QB)
The Honourable Mrs Justice Elisabeth Laing DBE
Case No: HQ15X01942
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Segal QC and Ms Tether (instructed by Thompsons) for the Claimants
Mr Swift QC and Mr Cornwell (instructed by the Government Legal Department) for the Defendant
Hearing date: 27 April 2016
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.
Introduction
This is a Part 8 claim brought against the Defendant by two of its employees, Mr Cavanagh and Ms Williams, and by their trade union, the Public and Commercial Services Union ('the PCS'). The main issues are whether, the Claimants having opted to have their subscriptions to the PCS deducted from their salary and paid by the Defendant to the PCS, they have a contractual right to insist that the Defendant continues with that arrangement, and whether, if they have, the PCS, which is not a party to their contracts of employment, can enforce that right under the Contracts (Rights of Third Parties) Act 1999 ('the 1999 Act').
The parties agreed that I could decide the legal issues without live evidence, on the basis of the material exhibited to the witness statements. The Claimants were represented by Mr Segal QC and by Ms Tether, and the Defendant by Mr Swift QC and Mr Cornwell. I thank all counsel, and their teams, for the great help they gave me before, during, and after the hearing, by preparing useful bundles, illuminating skeleton arguments, and a helpful agreed note, and by arguing the case clearly.
The facts
The Defendant
As Mr Swift and Mr Cornwell explain, the Department is 'the result of a number of machinery of government changes in the course of the last 30 years'. The Department for Health and Social Security was split into two departments in 1988. One of those departments, the Department for Social Security ('the DSS'), assumed, in 2001, some of the responsibilities of what was then the Department for Education and Employment. It then became the Department for Work and Pensions. The DSS had been responsible for some 'Next Steps' or Executive Agencies, such as, I infer, the Benefits Agency. As a result of that history, in part, at least, many different terms and conditions of employment apply to its employees.
The Civil Service Pay and Conditions of Service Code ('the Code')
The Introduction to the Civil Service Pay and Conditions of Service Code ('the Code') in the documents I saw is apparently dated October 1976. It says that there are two main sources of its provisions: legislation and agreements reached in negotiation with the National Staff Side or with Staff Associations 'in accordance with custom and practice stretching back over more than 59 [?] years' (the copy in the bundle is not very legible).
I was told that the Code was superseded in 1996. An extract from the Code (issue 2, dated July 1987) was in the bundle. It has a section entitled 'Voluntary Deductions from Pay' which was said to set out the arrangements relating to voluntary authorisation of deductions from pay. Paragraph 4051 provided that a civil servant who 'wished' to authorise deductions from his pay for listed purposes or organisations should get a form approved by the Treasury from the organisation concerned, and complete and forward it to the organisation. The organisation would forward such forms in batches at suitable intervals to the officer paying salary. Deductions for union subscriptions would be made at the earliest practicable date, rather than quarterly. Notice of termination of the authority was to be given direct to the paying officer. This method of payment 'may be withdrawn' in the circumstances set out in paragraph 4100.
Paragraph 4100 was headed 'Unions Representing Civil Servants'. It provided that 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 action by non-industrial civil servants, 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 any deductions payable to any unions with members officially involved in industrial action. Staff will be advised by an office notice of any decision to withdraw this method of payment ("check off")'. Paragraph 4101 made provision about subscriptions which included a political levy.
The Claimants' appointments and contractual documents
Mr Cavanagh was appointed on 26 January 1987 as a casual member of staff. The text of his appointment letter was said to summarise his main conditions of service as they then applied. Any significant changes were to be notified by staff circular. Details of conditions of service would be found in the Staff Code, a copy of which was available to be consulted. I was not told what, if any, provision about check-off there was in that document. Nor, indeed, do I know whether 'the Staff Code' is a shorthand reference to the Code. Given the date of Mr Cavanagh's appointment, it is, to put it at its lowest, possible that it is, or that it is a document which summarised, the Code. Since the Code appears to have applied across the Civil Service before it was superseded, I would go further and say that this is a probable conclusion.
Mr Cavanagh was offered a promotion on 6 January 2001. His terms and conditions of employment, other than the description of the post he was offered, and that he would be paid by bank transfer monthly in arrears on the last working day of each month, were 'set out in the statement of particulars of employment enclosed'. That document gave 'particulars of the terms and conditions applicable to' his appointment. 'Further information' was given in 'the Guidance and Practice Handbook' which would be available at his workplace. Neither side could tell me what, if any, provision that made about check-off. His employment was subject to the Civil Service Management Code ('the CSMC'). But I have not seen the CSMC which applied then. The only version which I have seen was published much later. I refer to it below.
Conduct and discipline were covered by 'the Guidance and Practice Handbook and Staff Rules'. A 'Staff Handbook' (if different) described the applicable duties of confidentiality and provisions of the criminal law. The Disciplinary Procedures Guide told him what to do about a grievance. The applicable collective agreements were a national agreement 'on pay and related issues' dated November 1992, and for non-pay matters, the Civil Service National Whitley Council Revised Agreement on Facilities for Industrial Relations Duties and Trade Union activities in the Non-industrial Civil Service – 1982. Neither side was able to tell me whether either agreement, or the other documents incorporated by reference in these particulars dealt with check-off.
Under the heading 'Trade Unions' the particulars said that the Civil Service attached importance to ensuring effective consultation with staff and their representatives. It said that it was, 'of course', a personal decision whether or not to join a trade union, but that the 'Civil Service encourages staff to join an appropriate trade union and to play an active part within it, making sure their views are represented'.
Ms Williams was appointed on 4 October 1991 as a revenue assistant. What I take to be her appointment document said that the full terms and conditions for civil servants were set out in the Code (see above). The appointment document went on to say that the Inland Revenue Handbook summarised the full terms and conditions for Inland Revenue staff. There was also a simplified version; she would be given a copy when she started work. A regular publication would announce any important changes.
On 15 February 1999, Ms Williams was offered a promotion. She was asked to sign a document if she agreed to employment 'on the basis of the terms contained or referred to in this letter and the attached summary'. She accepted the offer on 18 February 1999. The written 'particulars of employment' said that full details of her employment 'are contained in the COS Manual'. Neither side was able to help me about what, if anything, that document said about check-off.
Ms Williams was to be told about changes to her particulars of employment by 'a revised letter or staff notices, circulars etc'. She was bound by collective agreements 'that are in place, as amended from time to time and any collective agreements that are made in future'. The section on salary referred to a 'pay and allowances manual'. Other documents were referred to under the heading 'grievance and appeal procedures'.
Under the heading 'Representation' the particulars said that the Benefits Agency attached importance to effective consultation with staff and their representatives. It said that it was a personal decision whether or not to join a trade union, but that the 'Civil Service encourages staff to join an appropriate trade union and to play an active part within it, making sure their views are represented'.
Collective agreements covering 'the pay system and related arrangements' and the Civil Service National Whitley Council Revised Agreement in the non-industrial Civil Service — 1982 were referred to. The particulars said that they 'affect your terms and conditions of service'. Neither side knew what, if any, provision...
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