Campbell v British Airways Plc, Court of Appeal - United Kingdom Employment Appeal Tribunal, November 13, 2018,  UKEAT 0015_17_1311
|Resolution Date:||November 13, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Campbell v British Airways Plc|
Appeal No. UKEATS/0015/17/JW
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
On 13 November 2018
THE HONOURABLE LADY WISE
MR ROBERT S CAMPBELL APPELLANT
BRITISH AIRWAYS PLC RESPONDENT
Transcript of Proceedings
UNLAWFUL DEDUCTION FROM WAGES
PRACTICE AND PROCEDURE - Reasons
CONTRACT OF EMPLOYMENT - Construction of Terms
The claimant raised a claim alleging unlawful deduction of wages. In response, the respondent raised issues of whether the relevant term of a collective agreement was still in force (and so incorporated into the current contract) and even if it was, whether the term could be construed as applicable to the claimant. The Tribunal dismissed the claim. On appeal, an amended ground of appeal by the claimant made a reasons challenge and in particular an alleged failure to comply with Rule 62(5) of the 2013 Rules
(1) The Tribunal's judgment did not set out properly the issues for determination and some of its purported findings were simply a narration of evidence given rather than that accepted as established fact. However, reading the judgment as a whole, there was just sufficient to convey what material parts of the evidence had been relied on for the conclusion. The substance of the rule had been complied with and the claimant would know why he had lost. Greenwood v NWF Retail Limited 2011 ICR 896 applied.
(2) It was sufficient for the Tribunal's conclusion that the claimant had no contractual entitlement to the additional pay claimed. However, insofar as construction of the term under discussion was required, the tribunal had been entitled to take into account the overall purpose of the term - Arnold v Britton and others  2 WLR 1593.
THE HONOURABLE LADY WISE
The claimant commenced employment with the respondent with effect from 17 August 1998 as a Material Supplier. In 2015 he was offered and accepted a promoted post of Logistics Co-ordinator. A dispute arose as to whether he was entitled to receive a ``Personal Differential'' (PD) in addition to his full increased salary on the basis of a term in a collective agreement known as the Glasgow Forum Agreement (GFA). In 2016 he raised a claim alleging unlawful deduction of wages in terms of section 13 of the Employment Rights Act 1996 (ERA 1996). The Employment Tribunal sitting in Glasgow (Employment Judge Garvie presiding over a full tribunal) dismissed the claim in a judgment dated 12 April 2017 and the claimant appeals that decision. He has been represented both before the tribunal and on appeal by Mr G Bathgate, Solicitor. The respondent has been represented on both occasions by Ms G Hirsch of Counsel. I will refer to the parties as claimant and respondent as they were in the tribunal below.
The Tribunal's Judgment
In paragraph 12-128 inclusive of the judgment the tribunal makes what are recorded as ``essential facts'' which it states were established or agreed. The submissions for both parties are then transcribed in full between paragraphs 129 and 187. Following a narration of part of the legislative provisions at paragraphs 188 and 189 and a single paragraph (190) containing observations on the witnesses, the deliberation and determination section is between paragraphs 191 and 196. The scheme of the judgment is the subject of criticism by the claimant because of the apparent conflation between the recording of evidence and findings in fact on disputed issues. At this stage it is sufficient to record the findings that have a material bearing on the issues under appeal. These are:
``20. In 2001 BAMG was responsible for the maintenance of two B737 aircraft lines one of which was being phased out. This left one maintenance line and therefore reduced the amount of work available in Glasgow. Since BAMG's staffing was under resourced at the time extra staff were taken on, albeit the future of BAMG was uncertain. BAMG needed to become more competitive in order to secure new work to replace the B737/200 maintenance work.
The Glasgow Forum Agreement, (the GFA, (at page 290) explained that the purpose of this Agreement was to:
``Enable ratification at Glasgow of locally agreed initiatives to improve the business competitiveness and environment ensuring their compatibility with Maintenance activities at Glasgow.''
There is reference to the Forum holding quarterly meetings and the various trade union officials and management whose representatives would attend were listed. This Agreement was to deal with two key phases of work which began in February 2000.
During discussions around Phase 2 it became apparent that the anticipated cost savings that BAMG needed to demonstrate for the purpose of its bid for the work would not be achieved without changes to the terms of existing BAMG employees going forward through recruitment and promotion. The GFA therefore was agreed so as to ensure BAMG's work was as competitive as possible to secure that work and avoid potential redundancies. The proposed changes were expressed to be contingent on that work being secured, (page 295).
As a result of the GFA implementation, more competitive pay rates were introduced and BAMG ultimately secured the maintenance work with the new Airbus fleet. By comparison, the respondent's maintenance base in Manchester closed shortly after BAMG secured the Airbus work as it (Manchester) was not sufficiently competitive.
The GFA did not amend all the terms of the Collective Agreements which continued to apply, as varied by GFA, but it introduced certain changes in respect of certain categories of staff at BAMG to make it more competitive. The most significant change introduced and on which most of consultation focused was the change to payscales for certain roles.
The GFA at page 5 of the Agreement, (page 293) set out Pay Scales under ``Existing rates'' and ``New rates'' which applied to Material Suppliers, Mechanics, Technicians, and Licensed Aircraft Engineers, (LAEs1 and LAEs2). These categories were covered by the T & G Agreement, the Craft Bargaining Unit Staff Agreement and the Non-Craft Bargaining Unit staff. The GFA amended pay rates were only for those based at BAMG, Glasgow.
At the foot of that page, (page 7 of the agreement), (page 293) states:
``All staff retain their existing grade and incremental scale. Promotions will be onto the new scale''
There is also reference to Lead Technicians and that a premium payment will be made to them.
At page 6 of the GFA, (page 294) the Existing (i.e. Original) rates and the new (BAMG only) rates which applied to A-Scale employees are set out.
At the foot of page 6 of GFA, (page 294) it states:
``All staff retain their existing grade and incremental scale. Promotions will be onto the new scale
``Anyone in full time BA employment on 1st April 2000 who is promoted to A5 or A6 will carry the personal differential. Personal differential is pensionable and wage rises are applied to the combined sum. Overtime is calculated using the basic rate only.''
At the time of this Agreement being implemented in February 2001 the claimant remained a Material Supplier and so his then pay scale i.e. the existing and new rates where there was a change are as set out at page 293. So far as the claimant was concerned there was no change to his pay rates at that time since, as indicated above, he remained a Material Supplier.
Mr Wallace's understanding was that an individual who was at the top of the regional A5 scale, (page 294) shown as having a pay rate at the time of £20,885 who was then promoted to a more senior A6 scale role after the introduction of the GFA would move to the new BAMG only A-Scale role rather than remaining on the old original pay scale which was £21,255.
The respondent realised that there was a potential issue for someone moving from the existing A-Scale role by being promoted to the higher role on the BAMG only A-Scale could be financially disadvantaged. This could amount to a potential to dis-incentivise current A-Scale employees seeking promotion. During the course of negotiations a Ms Morag Reed suggested that there could be a Personal differential introduced, (referred to as a PD).
This had been used previously in re-deployment as set out in various Collective Agreements, (pages 307-311). The intention there was to compensate staff for financial losses resulting from a moving to another area of the business on a lower salary as a result of re-deployment. Ms Reed's suggestion was that a similar PD might apply in this context on a transitional basis to provide some pay protection for those A-Scale employees who would otherwise be financially disadvantaged, following promotion. The respondent acknowledged the potential impact on A-Scale promotions and so when this PD was proposed it was agreed by management.
The GFA was negotiated and consulted on over a two year period from the initial phase through to the conclusion when it was signed on 23 February 2001, (page 295).
During the course of this consultation process Mr Wallace worked with representatives of the trade unions and had monthly consultations with Glasgow staff. Staff updates were provided on Notice Boards and emails and a final form of the GFA was presented to staff before a vote was taken and final agreement reached. Mr Wallace was clear that the presentation referred to discussion about the PD at which it was explained and the PD was applicable to (current) A-Scale staff, (see page 6 of the GFA at page 294 of the bundle) and was separate from Craft/Non-Craft Pay Scales set out at page 5 of the GFA, (page 293 of the Bundle).
Mr Wallace was also clear that the asterisk at page 6 of the GFA (page 294) of the Bundle) related only to the A-Scale roles listed on that page and to those who, at 1 April 2000 were in the respondent's employment and on the...
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