Maureen Sparks (1st Claimant) Helen Morgan (2nd Claimant) Paul Williams (3rd Claimant) Nick Ling (4th Claimant) David Macbeth (5th Claimant) Murray Collins (6th Claimant) Gary Washer (7th Claimant) v Department for Transport
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Globe |
| Judgment Date | 03 January 2015 |
| Neutral Citation | [2015] EWHC 181 (QB) |
| Date | 03 January 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/14/0533 |
[2015] EWHC 181 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Globe
Case No: TLQ/14/0533
Mathew Purchase (instructed by Slater and Gordon Sols) for Claimants 1–7
Adam Tolley QC (instructed by The Traeasury Sols) for the Defendant
Hearing dates: 3rd and 4th November 2014
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
The claimants are each employed by one of seven individual bargaining units (agencies) for which the defendant is responsible:
• First claimant – Department for Transport (Centre) (DfT(C))
• Second claimant – Driving Standards Agency (DSA)
• Third claimant – Driving and Vehicle Licensing Agency (DVLA)
• Fourth claimant – Highways Agency (HA)
• Fifth claimant – Maritime and Coastguard Agency (MCA)
• Sixth claimant – Vehicle Certification Agency (VCA)
• Seventh claimant – Vehicle and Operator Services Agency (VOSA)
The "Departmental Staff Handbook" for each agency contains written provisions concerning attendance management. The claimants apply pursuant to CPR Part 8 for a declaration in relation to their terms of employment arising out of the introduction of a new policy for attendance management introduced by the defendant in July 2012. The proceedings are intended to be representative proceedings and are backed by the recognised unions, namely, the PCS, Prospect and the FDA.
It is common ground that the case raises three questions:
• First, prior to July 2012, were the relevant attendance management provisions of each "Departmental Staff Handbook" terms of each claimant's contract of employment?
• Secondly, if so, was the defendant entitled to vary those terms unilaterally in July 2012?
• Thirdly, if not, should the court grant a declaration in the circumstances of the case?
First question — were the attendance management provisions terms of the contract of employment?
Chapter 1 of the "Departmental Staff Handbook" for each agency provided as follows
" 1.1 Contract of employment
1.1.1 You are a Crown employee working within the Department for Transport (DfT). Your terms and conditions of employment include those set out in
(1) ………..
(2) the DfT Departmental Staff Handbook which contains terms and conditions and procedures and guidance applying specifically to you as a Crown employee (there are variations between different bargaining units – see Annex A [ my commentary: ie Annex A of Chapter 1])
(3)……….
1.2 The Departmental Staff Handbook
1.2.1 The Departmental Staff Handbook, as applying to you, sets out many of your terms and conditions. It is the intention of the recognised trade unions……and of the Crown that all of the provisions of the Departmental Staff Handbook which apply to you and are apt for incorporation should be incorporated into your contract of employment.
1.2.2 The Departmental Staff Handbook is in two parts:
• Part A contains terms and conditions. Without prejudice to the generality of paragraph 1.2.1 above, all of Part A and all annexes of Part A which apply to you and which are apt for incorporation, will be incorporated into your contract of employment; and
• Part B contains procedures and guidance relevant to your employment relationship with the Crown. Those procedures and guidance can be relevant to the operation of your contractual terms and conditions set out in Part A, but in the event of inconsistency between Part A and Part B it is Part A which prevails.
• Annex A [ my commentary: i.e. Annex A of Chapter 1]— Variations between bargaining units
The Department's individual bargaining units are required to adopt the Departmental Staff Handbook, but have discretion to:
• adopt different, local terms and conditions in respect of the following areas if it is demonstrably necessary for them to do so:
? …….
? leave and attendance (including working hours, absence monitoring and FWH provisions)
? discipline (poor performance, poor attendance and misconduct…..)
? ……."
The seven agencies exercised their discretion under Annex A of Chapter 1. Each adopted its own local terms and conditions in respect of attendance management. There were marginal differences between the individual terms and conditions, but they were all broadly similar provisions. It is common ground that, notwithstanding the marginal differences, the resolution of the three issues will be the same for each claimant. Thus, by agreement between the parties in the course of the hearing and subject to there being a successful application to amend the details of the particulars of claim in relation to the first claimant, the principal focus has been on the provisions of the DfT(C).
The DfT(C)'s provisions
The provisions applicable to the first claimant were as follows.
Chapter 10 Part A of the DfT(C) Departmental Staff Handbook provided as follows
" Chapter A10: Ill Health
This chapter
• sets out your terms and conditions of employment relating to sick leave;
• sets out your terms and conditions of employment relating to the management of poor attendance….
A10.1 Sick Leave
10.1.1 Paragraphs 10.1.2 to 10.1.23 inclusive set out your terms and conditions of employment relating to sick leave. In addition:
a. Annex A: Maintaining satisfactory standards of attendance ……sets out the procedures that can be invoked whenever your line managers believe that your attendance is unsatisfactory.
b ……….
c. Chapter A10.3 …….sets out guidance and procedures for helping you and your line managers to address sickness absence.
Cumulative short absences
10.1.18 Where in any 12 month period you have taken a number of short-term absences as sick leave which together exceed 21 working days, your line manager will discuss your attendance record with you. Only if you have exceeded these 'trigger points' and, consequently, your line manager perceives a problem with your attendance will he or she take the matter forward in accordance [with] the procedures set out in Annex A, Maintaining satisfactory standards of attendance." [ my commentary: ie Annex A of Chapter 10]
At some unspecified date prior to July 2012, "Chapter A10 Annex A, Maintaining satisfactory standards of attendance" was replaced by "Chapter A10 Annex A, Disciplinary Procedures", which contained a disciplinary procedure dealing with conduct, performance and attendance issues. Pursuant to paragraph 10.1.18, the procedure in relation to cumulative short absences only applied where there had been "trigger points" of over 21 working days absence as sick leave in any 12 month period. If the procedure applied, it provided first of all for an "informal stage" involving a quiet word and a copy of any notes taken during the course of the discussion being handed to the employee. If there were any continuing attendance issues, there was provision for "formal stages". Stage one could lead to a formal written warning. Stage two could lead to a final written warning. Stage three could lead to dismissal.
The local terms and conditions relied upon as being applicable to the first claimant are pleaded in paragraphs 9–12 of the particulars of claim dated 18 July 2013. Mr Purchase, for the claimants, applies to amend those paragraphs. It is a late amendment. It is opposed by Mr Tolley QC, for the defendant, on the basis of the defence having concentrated upon the original drafting in order to defend the claim and generally because of its lateness and current practice that the court should be less ready than in former times to grant a late application to amend a pleading.
I am mindful of cases such as Swain-Mason and others v Mills & Reeve LLP [2011] 1 WLR 2735. They confirm the principle that a court should be less ready to grant late applications to amend pleadings. In deciding whether to grant a late application to amend, the court should pay particular regard to the overriding objective of enabling the court to deal with cases justly and at proportionate cost in the sense defined by all the circumstances listed in CPR rule 1.1(2). In considering the overriding objective, I am also mindful of the principles emanating from Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 and Denton v TH White Limited [2014] EWCA Civ 906 in relation to the approach to be taken to a party seeking relief from sanctions under CPR rule 3.9.
In the narrow context of the first claimant's case, the amendment is significant. It involves the substitution of the provisions within Chapter 10.1 for the pleaded provisions of Chapter 10.3. Mr Purchase now concedes that the particulars within chapter 10.3 merely provided guidance and procedures and could not have been incorporated as terms of the first claimant's contract of employment.
In the wider context of all seven claimants and the action as a whole, the significance of the amendment is substantially diminished. It merely replicates the general substance of the pleaded cases of the other claimants. In particular, it replicates very similar provisions of the MCA in relation to the fifth claimant and the VCA in relation to the sixth claimant. The amendment therefore makes little or no difference to the substance of the declaration being sought under CPR Part 8. The application to amend is late because there has been recent discovery of a full copy of the staff handbook for the DfT(C). The provision of documentation has not been an easy exercise due to...
To continue reading
Request your trial
-
Department for Transport v Maureen Sparks and Others
... ... Lord Justice David Richards ... Case No: A2/2015/0563 ... ...
-
Employment Law Case Updates - April 2015
...to terms of employment, particularly where such changes pose a detriment to employees. Sparks and another v Department for Transport [2015] EWHC 181 (QB) Norman and others v National Audit Office UKEAT/0276/14 Hart v St Mary's School (Colchester) Limited UKEAT/0305/14 Requirement to agree n......