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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Whitehouse v. North Bristol NHS Trust [2006] UKEAT 0133_06_1007 (10 July 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0133_06_1007.html Cite as: [2006] UKEAT 0133_06_1007, [2006] UKEAT 133_6_1007 |
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At the Tribunal | |
On 4 May 2006 | |
Before
HIS HONOUR JUDGE SEROTA QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
___________________________________________________________________
This case concerns the construction of certain terms and conditions of employment of Junior Hospital Doctors, in particular with regard to pay protection. I was told that the case is of general importance to many Doctors and Health Authorities. I was told that varying constructions have been placed on the relevant conditions by different Health Authorities.
HIS HONOUR JUDGE SEROTA QC
Introduction
Band/date | 1 December 2000 | 1 December 2001 | 1 December 2002 |
Band 3 | 62% (1.62) | 70% (1.7) | 100% (2.0) |
Band 2A | 50% (1.5) | 60% (1.6) | 80% (1.8) |
Band 2B | 42% (1.42) | 42% (1.42) | 50% (1.5) |
Band 1A | 42% (1.42) | 42% (1.42) | 50% (1.5) |
Band 1B | 30% (1.3) | 30% (1.3) | 40% (1.4) |
Band 1C | 20% (1.2) | 20% (1.2) | 20% (1.2) |
The contractual position
"Principles of pay protection
f. The principle of pay protection applies to practitioners in all bands for the duration of the post/placement or within a rotation subject to the conditions set out in sub-paragraphs 21.h to m.
g. Pay protection applies to the base salary on the scale plus the supplement in payment at the time the post or placement is rebanded. The salary shall be increased only to take account of increments in the base salary on the old scale.
Pay protection in New Deal compliant posts
h. Where a practitioner reaches agreement with his or her employing authority on a new or revised contract on or after 1 December 2000, the practitioner's post shall be re-assessed in accordance with paragraphs 19 to 23, effective from the date of the change. For so long as it is more favourable, and so long as the practitioner remains in the same post, the practitioner shall retain the overall salary applicable to the band he or she was placed in immediately before the change. The salary shall be increased only to take account of increments in the base salary on the old scale.
i. If a practitioner in a rotational appointment has accepted appointment to a future post in that rotation for which a New Deal compliant pay band assessment has been made at the time of appointment to the rotation and the duties of that future post have been changed before the practitioner actually takes it up, then sub-paragraph 21.h shall apply, and the practitioner shall be treated as if he or she had already been occupying the post at the time of the change. If no assessment of the pay band has been made at the time of appointment then sub-paragraphs 21.c, d and e apply.
Pay protection in New Deal non-compliant posts
j. Where a New Deal non-compliant post/placement (pay band 3) becomes compliant before 1 December 2002, the practitioner shall retain the overall salary protected at the pay band 3 rate applicable at the time of rebanding, for so long as it is more favourable and for the duration of the post/placement. The salary shall be increased only to take account of increments in the base salary on the old scale.
k. Where a New Deal non-compliant post/placement (pay band 3) becomes compliant on or after 1 December 2002, the practitioner shall have their salary protected at the pay band 2A rate applicable at the time of rebanding, for so long as it is more favourable and for the duration of the post/placement. The salary shall be increased only to take account of increments in the base salary on the old scale.
l. Where a future post/placement in a rotation, which has been accepted by the practitioner at pay band 3, becomes compliant before 1 December 2002, the practitioner when they take up that post/placement shall retain the overall salary protected at the pay band 3 rate applicable at the time of the rebanding, for so long as it is more favourable and for the duration of that post/placement. The salary shall be increased only to take account of increments in the base salary on the old scale.
m. Where a future post/placement in a rotation, which has been accepted by the practitioner at pay band 3, becomes compliant on or after 1 December 2002, the practitioner when they take up that post/placement shall have their salary protected at the pay band 2A rate applicable at the time of the rebanding, for so long as it is more favourable and for the duration of that post/placement. The salary shall be increased only to take account of increments in the base salary on the old scale."
22. The objective of the contract is, over time, to reduce the hours worked by junior doctors. The changes in contractual terms must not be used as a justification to increase hours worked in any post. On and following implementation, any substantive change to the working pattern of any existing post which may lead to an increase in the hours worked can only be introduced with the assent of the postholder and the approval of the regional improving junior doctors working lives action team (or equivalent). The nature of the approval system is contained in the implementation guidance "A general guide to the new pay system" which accompanies HSC 2000/031.
Pay protection arrangements for compliant posts after transition
31. For compliant posts/placements which are rebanded to a lower band, postholders shall have salary protected at the rate of the original band applicable at the time of rebanding on a mark time basis, i.e. for so long as it remains favourable, for the duration of the post/placement. Salaries to be increased only to take account of increments in the base salary on the scale applicable at the time of appointment, excluding any changes to the supplement rate.
32. For rotations, future posts/placements which have been accepted by the appointee at a compliant band that are rebanded to a lower band shall have salary protected at the rate of the original band applicable at the time of rebanding on a mark time basis, i.e. for so long as it remains favourable, for the duration of the post/placement. Salaries to be increased only to take account of increments in the base salary on the scale applicable at the time of appointment, excluding any changes to the supplement rate.."
The proceedings before the Employment Tribunal
The Claimant's submissions
"The salary shall be increased only to take account of increments in the base salary on the old scale"
"21 In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 the Court of Appeal gave guidance as to the circumstances in which a Judge might be invited to amplify his reasons and findings where these are considered to be insufficient. The EAT has adopted the approach recommended by the Court of Appeal on a number of occasions and remitted cases to the ET for amplification of reasons at an early stage in the appeal process; see Adebowale v Peninsula Business Services (EAT/1135/02/DA) in which the President said that the Court of Appeal had
"expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for clarification"".
We need not, therefore set out the dicta in English v Emery Reimbold & Strick.
22 In Re T (a child: contact) 2003 1 FLR 303 (a care case) the Court of Appeal took the question of seeking clarification from a first instance Judge a stage further. Arden LJ , having considered English v Emery Reimbold & Strick Ltd went on to say that the principle applied to appeals in care cases as well as to other appeals. She said at p.320
"In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not, as a matter of courtesy at least, to draw the judge's attention to any material omission of which he is then aware or then believes exists. It is well-established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective (CPR 1.3, which does not as such apply to these proceedings); and in some cases, it may follow from the advocate's duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity so to do. Unnecessary costs and delay may result. I should make it clear that there are general observations for assistance in future cases, and that I make no criticisms of counsel in this case".
In our opinion it is certainly good practice where parties are legally represented in Employment Tribunals, for advocates to ask the Tribunal to amplify its reasoning where it is considered that there has been a material omission in its findings of fact or in its consideration of the issues of fact and law before it. Where reasons are given extempore the application should be made at the time. If reasons are given in writing the request should be made as soon as possible after the reasons are received. We would encourage advocates to seek clarification from the ET promptly in any case where there might otherwise be an appeal based on alleged insufficiency of reasons. It is much easier for Tribunals to deal with requests for clarification when they are fresh in their minds and the amplification of insufficient reasons and finding will save the parties time and expense and may in some cases obviate the need for an appeal and subsequent remission of the case.
23 The approach we have set out above is wholly consistent with the overriding objective and the principles that should govern appeals before the EAT."
The Respondent's submissions
Conclusions
"My Lords, I will say at once that I prefer the approach of the learned judge. But I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 3 All ER 237 at 240–242, [1971] 1 WLR 1381 at 1384–1386 and Reardon Smith Line Ltd v Hansen-Tangen, Hansen-Tangen v Sanko Steamship Co [1976] 3 All ER 570, [1976] 1 WLR 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of 'legal' interpretation has been discarded. The principles may be summarised as follows.
(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352, [1997] 2 WLR 945.
(5) The 'rule' that words should be given their 'natural and ordinary meaning' reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Cia Naviera SA v Salen Rederierna AB, The Antaios [1984] 3 All ER 229 at 233, [1985] AC 191 at 201:
'… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.'"