Employment Cases Update

Ministry of Defence & Anor v Carr & Ors UKEAT/0291/09/LA

Date published: 21/11/2010

Appeals by employer arising from claims of unlawful deductions from wages relating to London weightings and retention allowances, and also involving consideration of the adequacy of statements of particulars. Appeal allowed in part.

The three claimants were all employees of the Government Legal Service who transferred to work for the MoD, two "on loan" and one permanently. The claims arose from allegations that their salaries had been incorrectly calculated as the London weighting had been deducted before calculating their salary, that they were entitled to a Recruitment & Retention Allowance (RRA) and that, for two of them, the MoD had failed to provide a Statement of Particulars as required by s1-4 of the Employment Rights Act. The ET allowed the claims, though the reasoning for each claimant varied.

In this appeal, the EAT reviews the details of the MoD pay arrangements and the circumstances of each claimant's transfer, in particular the issue of whether the allowances had been consolidated into the claimants' salaries. They allowed the appeal on the RRA issue as to have agreed with counsel's submission for the claimants would mean that the allowance would be payable whenever an employee moved to another MoD post in London. They did, though, agree with the Tribunal's findings on the London weighting.  However, they declined to determine the issue of the Statement of Particulars as the MoD were seeking to argue a new point of law which required an Amendment to the Notice of Appeal. The matter was therefore adjourned.

________________

Appeal No. UKEAT/0291/09/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 & 23 March 2010

Judgment handed down on 18 November 2010

Before

THE HONOURABLE MRS JUSTICE COX

PROFESSOR S R CORBY

MR S YEBOAH

(1) MINISTRY OF DEFENCE; (2) TREASURY SOLICITOR (APPELLANTS)

(1) ALEXANDRIA CARR; (2) KATHERINE SHEPHERD; (3) ALAN FERGUSON (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants
MR ADAM TOLLEY (of Counsel)

Instructed by:
Treasury Solicitors Office - Litigation & Employment Group
One Kemble Street
London
WC2B 4TS

For the Respondents
MR J HOLMES-MILNER (of Counsel)

Instructed by (for the First & Third Respondents):
Messrs Shoosmiths Solicitors
Quantum House
Basing View
Basingstoke
Hants
RG21 4EX

Instructed by (for the Second Respondent):
Messrs Russell Jones & Walker Solicitors
50-52 Chancery Lane
London
WC2A 1HL

SUMMARY

UNLAWFUL DEDUCTION FROM WAGES

CONTRACT OF EMPLOYMENT – Written particulars

The Claimants are all government lawyers employed in the government legal service. The appeal by the MoD and cross appeal by the Claimants raised issues relating to their contractual entitlement to two distinct allowances (i.e. London Weighting and the Recruitment and Retention Allowance (RRA)) during their period of work at the MoD, on transfer to the MoD either on loan from their "home" department (Ms Carr and Mr Ferguson) or permanently (Ms Shepherd).

A third issue concerned the statements of particulars of employment provided to Ms Carr and Mr Ferguson and whether they complied with sections 1-4 of the Employment Rights Act.

The ET's decision in respect of London Weighting was upheld, but the MoD's appeal in respect of the RRA was allowed, the EAT concluding that none of the Claimants had an entitlement to this allowance.

The appeal in relation to the statement of particulars provided to the Claimant Mr Ferguson was, in the event, adjourned for the reasons explained in the judgment.

THE HONOURABLE MRS JUSTICE COX

1. These appeals raise questions of some importance concerning the scope of the Claimants' contractual entitlement to two distinct allowances paid by the Ministry of Defence (MoD), namely "London Weighting" and the "Recruitment and Retention Allowance". The questions arise in circumstances where the Claimants transferred to the MoD from other Government departments, either permanently or temporarily on loan. Mr Tolley, appearing for the MoD, tells us that the issues raised are potentially of wide significance.

2. The principal claims of all three Claimants involve complaints of unlawful deductions from wages contrary to section 13 of the Employment Rights Act 1996. In addition, Ms Carr and Mr Ferguson claim that, in breach of sections 1 – 4 of the 1996 Act, the MoD failed to provide them with sufficient employment particulars.

3. In relation to the London Weighting allowance the Employment Tribunal upheld only Mr Ferguson's unlawful deductions claim, dismissing these claims in the case of the other two Claimants. However, the Tribunal upheld the unlawful deduction claims of all three Claimants in respect of the Recruitment and Retention Allowance. They further upheld the complaints of a breach of Sections 1 – 4 of the 1996 Act brought by Ms Carr and Mr Ferguson.

4. On appeal the MoD and the Treasury Solicitor seek to challenge as erroneous the Tribunal's decision in respect of Mr Ferguson and London Weighting, and their decisions in both the Recruitment and Retention Allowance and Statement of Particulars claims. Ms Carr and Ms Shepherd have cross appealed against the decision to dismiss their London Weighting claims. Mr Tolley represents both Appellants and the submissions are the same for each. For convenience we shall refer to the Appellants throughout as the MoD. Before us Mr Holmes-Milner represented all three Claimants.

5. There has been a regrettable, but unavoidable delay in determining these appeals. After a two-day hearing in the Employment Appeal Tribunal judgment was reserved. Some weeks later, before the Employment Appeal Tribunal had concluded its deliberations, the MoD drew to the Employment Appeal Tribunal's attention their wish to refer to further authorities, relevant to the Statement of Particulars appeal. These authorities had not been identified as relevant at an earlier stage and the MoD considered that their effect was to render unsustainable some of their oral submissions before us. After further correspondence with the parties the Employment Appeal Tribunal gave directions for the filing of supplementary written submissions on the issues from both parties. Those submissions were provided and the parties were content for the members of the Employment Appeal Tribunal to conclude their deliberations without the need for any further oral hearing. Unfortunately, a further period of delay was then caused by the unavailability, through illness, of one of the members of the EAT.

THE MATERIAL FACTS

6. The Claimants are all Government lawyers who had been employed in the Government Legal Service. Ms Carr and Mr Ferguson are employment lawyers. Their individual circumstances and the relevant documents are as follows. We refer first to the documents which relate to the London Weighting allowance.

Katherine Shepherd

7. Ms Shepherd was an employee of the Treasury Solicitor and was the only Claimant who transferred to work for the MoD permanently, becoming their employee and remaining there from 1 April 2004 until 21 July 2007.

8. On 15 March 2004 Ms Shepherd was sent a detailed offer letter by the MoD, stating so far as is relevant:

"PERMANENT TRANSFER TO MOD

3. Transfer to the MoD will involve issue of the MoD Statement of Particulars (see attached) and adoption of MoD terms and conditions. A summary comparison of TSol and MoD terms is also attached, although you should refer to each Department's personnel manuals for full and detailed statements which can be found on the MoD internal website, http://personnel.defence.mod.uk/personnel/home/tables.htm

4. If you choose to transfer then your pay will be aligned with MoD pay scales (copy attached). Your pay on transfer will be £45,929pa (pay point 60). Additionally you will receive £2,200pa London Weighting, bringing your total salary to £48,129pa. An assumed £1,776 of London Weighting, consolidated in your TSol pay, has been removed before assimilation to MoD pay scales. If you were to subsequently move within MoD outside of London you would lose the pay addition, normally, on a mark time basis. You will receive a consolidated pay award from 2 Aug 04 taking your annual salary to £48, 207pa (pay point 61). Additionally you will receive £2,200pa London Weighting, bringing your total salary to £50,407pa. Any one-off non-consolidated bonuses awarded to you under T Sol's pay arrangements for the relevant reporting year 2003/04, will be honoured by the MOD. Your conditioned hours will be unaffected by this transfer."

9. The lengthy "Statement of Particulars of Employment for Non-Industrials" attached included the following information:

"1.2 The terms and conditions under which you are appointed are set out in the MoD Personnel Manual, the Pay Manuals, the Travel Manual and the Transfer Manual, which are widely available throughout the Department. The terms and conditions that govern your appointment may be amended from time to time either as a result of collective bargaining, or following consultation with the Trades Unions as appropriate."

10. Further information in the "summary comparison" stated:

"Ministry of Defence

Will calculate what each individual will transfer across on. TSol salaries for those in London had London Weighting consolidated in 1998 @ £1776 rate. For those in London this will be removed to give basic salary, the nearest MoD pay spine point will then be identified (rounding up) and the current London Weighting of £2200 will then be added.

The MoD is currently part way through a 4 year pay deal. Increments for the next 2 years will be advised. Salary increment date is 1 Aug."

11. Ms Shepherd accepted these terms and transferred permanently to the MoD with effect from 1 April 2004. Subsequently she countersigned another letter, dated 30 July 2004, stating her salary to be £48,129.00.

12. The reference, in the 15 March letter and accompanying documents, to the assumed figure of £1,776 of London Weighting was a reference to arrangements implemented within Treasury Solicitors in 1998. In about 1996 Civil Service pay was delegated to Government departments to negotiate individually and London Weighting was paid at the rate of £1,776 per annum. As time moved on some departments, including Treasury Solicitors consolidated the London Weighting figure into their main pay scales, although a separate London Weighting allowance was maintained in the MoD.

13. In 1998 Pay Notice 13/98, issued to all Treasury Solicitor employees, informed them of a pay offer, subsequently accepted, for all staff up to and including Grade 6. Paragraph 3(g) of this Notice stated that:

"(g) London Weighting (Reserved Rights) of £1,776 and Recruitment and Retention Allowance of £1,800 will be consolidated into basic pay on 1 August 1998. The minimum and maximum of the pay ranges in London will be increased by £1,780 (ie £1,776 rounded) on that date."

It is clear from the figures attached to this document that, in fact, all the pay points from minimum to maximum in the London pay ranges benefited from consolidation, so that London Weighting was no longer paid as a separate allowance but became part of basic pay for all staff.

14. The terms in Ms Shepherd's offer letter of 15 March reflected the underlying contractual terms then applicable to MoD employees. Paragraph 3.13 of the MoD's "Non-Industrial Pay Manual 2002" (NIPM) provided, as relevant:

"Transfers from other Departments or Agencies

Staffs transferring permanently to MoD from another Government Department or agency on PPI terms will be covered by the MoD pay arrangements and reporting cycle from the effective date of transfer. The substantive pay rate from the old department (excluding any London Weighting/RRA subsumed within existing pay – see below) will be retained on entry to MoD. If that salary falls below the MoD target rate and between pay steps, it will be rounded up to the next higher step. If it falls at or above the target rate, no further adjustment is required. If it exceeds the maximum for the MoD pay band, the higher rate of pay is retained on a mark-time basis. Any allowances which have been consolidated into basic pay in the old Department will be deconsolidated and replaced by the MoD equivalents."

15. Chapter 10 of the same Pay Manual dealt with the entitlement to and eligibility for London Weighting. Paragraph 10.1 stated as follows:

"Most staff who have unbroken service since 30 Sept 1994 and whose permanent duty station is within the London area receive an addition to pay known as London Weighting. Officers who joined or who were reappointed to MoD on or after 1 Oct 1994 receive an equivalent Recruitment & Retention Allowance. Reference in this chapter to London Weighting includes this RRA."

Confusingly the reference there to "an equivalent Recruitment and Retention Allowance" is something quite different from the separate Recruitment and Retention Allowance with which we are concerned in this case, and which we shall return to below.

16. In fact, at the time Ms Shepherd's MoD pay was calculated an error was made. After £1,776 was subtracted, the figure was rounded down rather than rounded up to the next spine point as it should have been. The correct salary payable was therefore £49,277. However, the MoD subsequently corrected this and paid the difference, together with accrued interest. Nothing turns on that in this appeal.

Alexandria Carr

17. Ms Carr was also an employee of the Treasury Solicitor, but she transferred on loan to the MoD from 7 February 2005 until 12 October 2007, during which time she was paid by the MoD but remained an employee of the Treasury Solicitor.

18. Before she transferred the MoD had written to her on 14 January 2005 explaining the contractual terms that would apply in the event that she transferred permanently and became their employee. This letter, to which the same particulars as were sent to Ms Shepherd were attached, included an explanation as to the calculation of her pay and gave a salary figure of £50,407 stating, so far as is relevant:

"… I am writing to inform you of the terms and conditions of service for the Ministry of Defence (MoD) should you decide to transfer on a permanent basis.

2. Transfer to the MoD will involve issue of the MoD Statement of Particulars (see attached) and adoption of MoD terms and conditions. A summary comparison of TSol and MoD terms is also attached, although you should refer to each Department's personnel manuals for full and detailed statements. You should note in particular that you will come within the MoD's pay and performance system and you will receive a consolidated pay rise from 1 August 2005.

3. If you chose to transfer then your pay will be aligned with MoD pay scales (copy attached). Your current salary of £49,164pa will change on transfer to £48,207pa (pay point 61) and additionally you will receive £2,200pa London Weighting bringing your total salary to £50,407pa. An assumed £1,776 of London Weighting, consolidated in your TSol salary, has been removed before assimilation to MoD pay scales. If you were subsequently to move within MoD outside of London you would lose the pay addition, normally, on a mark time basis. You will receive a consolidated pay award from 1 August 2005 taking your annual salary to£50,598pa (pay point 62). Additionally you will receive £2,200pa London Weighting bringing your total salary to £52,798pa. Your conditioned hours will be unaffected by this transfer."

19. In the event Ms Carr decided not to transfer permanently but to work at the MoD for a period on loan. Her letter of appointment, dated 23 February 2005, and confirming her appointment on loan provided, so far as is relevant:

"2. Your loan will commence on 7 February 2005 and last for 2 years. Your loan may be extended for a further period with the agreement of all parties (i.e. you, TSol and MoD).

4. You will remain an employee of TSol and on expiry of the loan you will return to TSol. You will remain eligible for internal TSol promotion boards and GLS Trawls.

5. During your loan you will be subject to MoD terms and conditions of service.

6. You will transfer to the MoD payroll from 1 March 2005. MoD will pay your salary, superannuation and National Insurance contributions for the duration of the loan, paid monthly in arrears. You will continue to be covered by the Principal Civil Service Pension Scheme. Your starting salary while on loan will be £50,407 (inc Inner London Weighting) per annum."

20. Ms Carr agreed to these terms and conditions and signed them on 7 March 2005.

Alan Ferguson

21. Mr Ferguson was a part-time employee of HM Revenue and Customs who, like Ms Carr, transferred to work for the MoD on loan terms. He remained an employee of HMRC but was paid by the MoD during the time he worked there, from 21 February 2005 until 29 February 2008.

22. As in the case of Ms Carr, Mr Ferguson had previously received an offer, dated 14 January 2005, informing him of the terms and conditions that would apply if he transferred permanently. This letter included the same explanation as to the calculation of his pay as was contained in the letter to Ms Carr of the same date, and it referred to an annual salary in his case of £59,503, to be paid pro rata for his 27-hour week. He was told specifically that if he transferred permanently "an assumed £1,750 per annum of London Weighting, consolidated in your Inland Revenue pay" would be removed before his assimilation to MoD pay scales.

23. The reference to the removal of £1,750 consolidated in his Inland Revenue pay was a reference to changes in the London Weighting arrangements made in 1994 for some of the staff working in what was then the Inland Revenue.

24. There is a dispute between the parties as to the meaning and effect of these changes, to which we shall later return, but the relevant documents are as follows.

25. Issue number 263 of Pay News, dated 29 July 1994, informed all Revenue staff in Pay Bands A and B of various changes to London Weighting, London pay and allocation allowances. Staff in those bands were informed as follows:

"London Weighting, London pay, and location allowances (see examples at Annex B)

4. London pay with effect from 1 August 1994

(a) London band and span maxima will be increased by £1,750 immediately after the 1 August 1994 settlement.

(b) Staff in post in London at 31 July 1994 will have their current London Weighting consolidated into their basic pay immediately after the 1 August 1994 settlement and will continue to be paid on London bands/spans while they remain in the London pay area (ie the Outer, Intermediate and Inner London Weighting areas at 31 July 1994).

(c) With effect from 1 August 1994, London Weighting will no longer be paid. People recruited on or after 1 August 1994, and existing staff transferred to London on or after 1 August 1994, will not receive London Weighting."

26. The accompanying figures showed "London Weighting incorporated into revised maxima" for Spans A1 and 2 and B1 to 3. It is not in dispute that Alan Ferguson joined the Revenue in 2000 on the minimum salary for Grade 6 lawyers in London, that he was Span B1 and that he had not reached the pay maxima before transferring to the MoD on loan in 2005.

27. Mr Ferguson also decided not to transfer to the MoD permanently, but to do so on loan. His letter of appointment, dated 10 February 2005, was in substance identical to the letter of 23 February sent to Ms Carr, differing only to the extent that it dealt with his part-time working arrangement. Due to a typographical error his salary figure was incorrectly stated as £59,303, but he was in fact paid on the basis of the correct, higher figure of £59,503.

28. Mr Ferguson agreed to these terms and conditions and signed them on 7 March 2005.

29. Notwithstanding the fact that Ms Carr and Mr Ferguson transferred on loan rather than permanently, and that paragraph 3.13 of the Pay Manual (NIPM) did not on its face apply to loan staff, the evidence below established, as the MoD contended, and as the letters of appointment stated, that the MoD term and conditions in general were as a matter of fact applied to all loan staff. The MoD stated policy was to ensure that, whilst serving with the MoD, staff joining either permanently or on loan should be treated consistently, should all enjoy the same MoD terms and conditions, and should be incorporated into the MoD's pay structure without being disadvantaged.

30. The NIPM 2002 was therefore the relevant, annual pay information and eligibility document at the time that Ms Carr and Mr Ferguson transferred on loan to the MoD. We note that Ms Carr was informed by Alison French of the MoD, in the letter dated 28 May 2008 responding to her grievance, that the NIPM was "… part of the terms and conditions to which you agreed when you signed the letter."

31. In fact, therefore, in respect of both permanent transfers and transfers on loan, the MoD operated the same system in calculating pay, pursuant to paragraph 3.13 of the NIPM. It is not in dispute that the effect of this calculation, in each case, was in fact to produce a higher salary than the Claimants had enjoyed in their old departments prior to transfer to the MoD. The Claimants' claim nevertheless that their pre-existing basic pay at the time of transfer should have been rounded up to the next MoD spine point and that the MoD London Weighting Allowance then added; and that there should have been no deduction from their basic pay of any notional, consolidated London Weighting Allowance.

THE RECRUITMENT AND RETENTION ALLOWANCE

32. The contractual provisions relating to this allowance were also contained in the 2002 Pay Manual (NIPM) at paragraph 9.4 which, so far as is relevant, provided:

"London RRA

Staff recruited or posted to London will be paid London RRA, as follows:

staff in Band E and equivalent: seven per cent of basic salary.

- all other bands and grades: four per cent of basic salary

The RRA is lost on a mark-time basis following a PPI move out of London.

The former London pay lead was consolidated into the basic salary of staff receiving it on 31 Jul 1999. Staff newly posted to London since that date receive the London RRA instead. It is payable to all pay bands below the SC5 and counts in full for pay on promotion or advancement. Staff moving from band E to D have three per cent of the lead consolidated permanently into pay, leaving four per cent as an adjustable allowance. The individual is then placed on the next highest available step.

Therefore, staff who had the London pay lead consolidated on 31 Jul 1999 are not normally eligible to receive the RRA. However, they are entitled to receive it when they reach the pay band maximum.

- Following the pay award each year, PPA will send PMAs details of all staff in post in London who have reached the maximum of the pay band. On receipt, PMAs are to authorise payment of the London RRA on PPA Form 1897 for those staff whose former pay lead was consolidated on 31 Jul 1999.

London RRA has no effect on the arrangements for London Weighting – see Chapter 10"

33. This provision reflected a change in contractual terms adopted in 1999, pursuant to PI (Personnel Instruction) 125/99, notifying MoD staff of some contractual variations.

34. Paragraph 6, dealing with "London pay lead" provided that:

"Separate London pay bands are abolished. Staff in a permanent duty station in London on 31 Jul 99 will have their London pay lead consolidated permanently into salary. If such staff are posted out of London on or after 1 Aug 99, they will not lose this element of their salaries, even on a mark-time basis. But, if they subsequently return, they will not receive the new London Recruitment and Retention Allowance (RRA) described below.

Staff recruited or posted to London on or after 1 Aug 99 will be paid a new RRA, which will be a fixed percentage of basic salary, equating to the value of the London pay lead prior to 1 Aug 99. For staff at EO/PTO level (Group D) and above, the London pay lead prior to 1 Aug 99 equated to 4% of basic salary. For staff below group D, the London pay lead prior to 1 Aug 99 equated to 7% of basic salary.

The new RRA will be treated like the old pay lead i.e. reckonable for promotion, pensionable and removed on mark-time on PPI posting out of London. When the move is for personal (e.g. a voluntary posting) or inefficiency reasons the RRA will be lost immediately without mark-time.

The new London RRA has no effect on the arrangements for London Weighting/RRA, which will continue to be paid at existing rates."

35. The MoD did not pay the Recruitment and Retention Allowance (RRA) to any of the Claimants. On the basis that each of them was already employed in a Civil Service post in London prior to their transfer to the MoD the view was taken that they did not qualify for the allowance. The Claimants all claimed that they were entitled to the allowance and that the MoD's failure to pay it amounted to an unlawful deduction from their wages.

THE TRIBUNAL'S JUDGMENT

1. London Weighting

36. Each Claimant contended that the MoD had made an unlawful deduction from their wages by deducting the annual sum of £1,776 (or in the case of Mr Ferguson £1,750) from their basic pay before calculating their MoD salary. The result was that they were placed on a lower MoD pay scale than they should have been and suffered continuing deductions throughout the whole of their time at the MoD.

37. The Tribunal found on the evidence that, in calculating the entitlement of each Claimant, the MoD had subtracted from their salary figure,

"An amount representing the London Weighting element previously consolidated into the pay of employees in the department from which the employee was transferring."

38. The resulting figure was then rounded up to the next point on the pay spine point used by the MoD, and then the MoD London Weighting allowance was added, in order to produce the figure actually payable to the individual concerned.

39. After referring to the relevant contractual terms and documents, which we have set out above, the Tribunal found that:

"The same terms were as a matter of fact applied to individuals such as Miss Carr and Mr Ferguson who transferred on loan rather than permanently."

40. After setting out the issues and the parties' submissions the Tribunal summarised their findings as follows:

"26 To summarise, we find as a fact that employees who work for the MoD in London are entitled to a London Weighting Allowance of £2,200 and a Recruitment and Retention Allowance of 4 per cent of basic salary. …

30 We make a finding of fact that as from the respective dates when the individual Claimants either transferred permanently to or were on loan to the MoD, they were subject to the MoD terms and conditions of service."

41. Their conclusions were as follows:

"32 So far as the London Weighting is concerned on the Claimants permanent transfer on loan the provisions of paragraph 0.3.13 above apply which provides on transfer 'any allowances which have been consolidated into basic pay in the old department will be deconsolidated and replaced by the MOD equivalent.'

33 In the case of Miss Carr and Ms Shepherd, the London Weighting Allowance had been consolidated into basic pay in the Treasury Solicitors Department and as a consequence, the minimum and maximum in each grade had been increased. The fact that Miss Carr and Ms Shepherd joined after the date when consolidation took place, does not affect matters as in effect they still received the benefit of the consolidated London Weighting Allowance and the minimum or maximum of the scale grades had increased incorporating the consolidated allowance in effect for all the time and therefore it was appropriate for the MOD to remove the consolidated amount, namely, £1,776 and to substitute it with its London Weighting.

34 In the case of Mr Ferguson, in what was then Inland Revenue Department, the London Weighting was consolidated into basic pay for all those employed in 1994. Mr Ferguson joined Inland Revenue in September 2001. The position at the Inland Revenue at 31 July 1994 is set out at page 1064C. It provides that staff in London at 31 July 1994 will have their current London Weighting consolidated into their basic pay immediately after 1 August 1994 settlement. The note goes on to say at paragraph 4C:

'With effect from 1 August 1994, London Weighting will no longer be paid. People recruited on or after 1 August 1994 and existing staff transferred to London, on or after 1 August 1994 will not receive London Weighting.' (1064C)

35 Mr Ferguson joined the Inland Revenue after 1 August 1994, therefore he was not entitled and would not have received London Weighting Allowance, therefore on his loan to MOD there was no London Weighting consolidated in his pay which needed to be deducted before adding the full amount of the MOD London Weighting entitlement. The Respondents were in error in deducting the sum of £1,750 from Mr Ferguson's pay. At the commencement of his period of employment at the MOD his pay should have been calculated on the basis that his Inland Revenue pay should have been rounded up to the next highest band and then £2,200 should have been added as the London Weighting and any subsequent rises calculated accordingly."

2. Recruitment and Retention Allowance

42. Each Claimant contended that he/she was entitled to the benefit of the MoD's general terms and conditions, which provided for the payment of the RRA to staff "recruited or posted to London" and "newly posted to London". The MoD argued that, as the Claimants were all based in London prior to their permanent transfer or loan to the MoD and were thus on London salaries, they were neither recruited nor posted to London and were therefore not entitled to this allowance.

43. The Tribunal referred to the applicable contractual provisions and documents to which we have already referred. They also noted that Ms Smith, giving evidence for the MoD, stated that:

"The purpose of the provision was to enable staff who had not previously enjoyed a pay uplift for working in the Civil Service in London to do so, and that the intention was that someone who joined the MoD from another Civil Service job in London should not receive RRA on the basis that their previous salary would have reflected the consolidation in basic pay of London pay uplift."

44. The Tribunal found as a fact that employees who worked for the MoD in London were entitled to an RRA of 4 per cent of basic salary.

45. Their conclusions on this issue were as follows:

"37 What we know as the Recruitment and Retention Allowance, the London Recruitment and Retention Allowance entitlement provisions relating thereto are set out at page 547 and following. The relevant provision is at 9.4 on page 549 which provides 'staff recruited or posted to London will be paid London RRA'. So the question for the Tribunal is, are the Claimants entitled to receive the London Recruitment and Retention Allowance.

38 The respondents argue that they are not, because when they joined the MoD they were on London salaries and the Recruitment and Retention Allowance only applies where people are posted or recruited to London, i.e. if they were not already on London salaries.

39 The Tribunal does not accept that explanation.

40 Chapter 9 is an extract from the MoD's personnel and/or pay manual. The expression, recruited or posted to London must mean recruited or posted to the MoD in London as opposed to posted or recruited to the MoD outside of London.

41 All of the Claimants were posted to the MoD in London and the Tribunal finds that for the period of time which they worked at the MoD they are entitled to the 4% Recruitment and Retention Allowance."

3. Statement of Particulars

46. Ms Carr and Mr Ferguson contended that the MoD failed to provide them with a Statement of Particulars or a statement of material changes to their contracts, as required by Sections 1 – 4 of the Employment Rights Act.

47. The Tribunal considered the letters of appointment to Miss Carr (23 February 2005) and Mr Ferguson (10 February 2005) and asked themselves whether they were sufficient to amount to compliance with the statutory provisions. They concluded as follows:

"44 Moving on to the claims by Miss Carr and Mr Ferguson for failure to provide either written terms of conditions or a note of the variations in respect of Miss Carr and Mr Ferguson we refer to pages 114 and 390 [the letters of appointment]. Are those documents sufficient to amount to compliance with the statement of changes required by Section 4 of the Employment Rights Act 1996? A reference to pay is not capable of being notified by referring to a different document, so the statement of variation must set out: 'the scale or rate of remuneration or the method of calculating remuneration.'

45 The Tribunal considers that because in this case the entitlement to remuneration and allowances are so complex that the letters at 114 and 390 were not sufficiently complete to show the method of calculating the remuneration and because of the complexity we would have expected a far greater explanation. We therefore find that those letters are not sufficient to comply with the requirement under the ERA and having so found under and by virtue of Section 38 of the Employment Act 2002 we make an award of two weeks pay at the statutory maximum of £330 that is £660 each to Miss Carr and Mr Ferguson."

THE APPEAL

48. The right not to suffer unauthorised deductions from wages is contained in section 13 of the Employment Rights Act 1996, the material provisions stating as follows:

"13. Right not to suffer unauthorised deductions.

(1) An employer shall not make a deduction from wages of a worker employed by him unless-

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section 'relevant provision', in relation to a worker's contract, means a provision of the contract comprised-

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less that the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion."

A. London Weighting

49. In his first ground of appeal Mr Tolley submits that the matter is to be resolved, in the case of each Claimant, by a straightforward application of contractual principles. The MoD's case below was firstly, that there could be no unlawful deduction here because each Claimant expressly agreed to a stated salary figure which included London Weighting.

50. He complains that the Tribunal failed to deal with this point, or to provide sufficient reasons for rejecting the MoD's case upon it. He contends that the Tribunal could only have found that there was no unlawful deduction in this case and he therefore invites us so to find.

51. He submits that there was a specific term of the contract between the MoD and each Claimant that the salary figure stated in their letters of appointment was inclusive of London Weighting. Thus, even if (contrary to his second ground of appeal) the application of the standard terms of the Pay Manual (NIPM) conferred an entitlement to London Weighting on both permanent and loan employees, the specifically agreed terms of the contract took precedence over the general provisions of the NIPM, applying general principles of contractual interpretation.

52. Acknowledging the distinction between Ms Shepherd, who transferred permanently, and Ms Carr and Mr Ferguson who did not, he submits that whilst paragraph 3.13 of the NIPM did not apply on its face to those transferring on loan, its application in practice became contractual by virtue of their agreement to the specific salary figure. Miss Carr and Mr Ferguson were in any event aware of its application and of the deduction of the London Weighting element from basic pay since the stated salary figure in the letters of appointment was the same as that stated in the previous offer letter, where paragraph 3.13 and the methodology used in the calculation of payable salary was fully explained.

53. We do not accept the submission that the Tribunal failed to deal with this point. They referred expressly to the MoD's case at paragraph 11 of their Reasons and again at paragraph 23.1(a), when identifying the issues for determination. They clearly rejected the MoD's case for the reasons given at paragraphs 42 – 43, where they stated:

"42 As to the Respondents argument that there could be no unlawful deduction from wages as each of the Claimants signed their letters of appointment and therefore agreed their salaries and consented to being paid the amount they received and in any event they were receiving a greater salary than previously so there could be no deduction from wages.

43 What the Claimants signed up to and agreed to was that they would transfer to or be loaned to the MoD on MoD terms and conditions. They accepted the figures which had been calculated by the MoD as being their true entitlement under the MoD terms and conditions. The figures were calculated by the MoD. The Claimants did not have all the information to check their accuracy. The MoD in the operation [sic]of the Tribunal made a mistake in the calculation of the amounts due. The Claimants by their signing did not agree to the deductions, they did not know what deductions they were agreeing to – there could be no consent."

54. We agree, however, that in paragraph 43 the Tribunal did not address the MoD's submissions on this point or sufficiently explain why they were rejecting them. Indeed, the Tribunal appear in this paragraph to deal collectively with discrete submissions being advanced by the MoD on express agreement, on the lack of any free standing contractual entitlement to London Weighting, and consequently on the lack of any deduction as a matter of substance because all the Claimants received a greater salary than that they received in the department from which they were moving. However, no-one in this case is seeking remission to the Tribunal, and we are therefore invited to deal with the various points being raised.

55. There is, first, a clear distinction as a matter of contract between Ms Carr and Mr Ferguson, who transferred on loan, and Ms Shepherd who became a permanent employee of the MoD.

56. By signing their letters of appointment both Ms Carr and Mr Ferguson agreed, by paragraph 5, that they would be subject to MoD terms and conditions. In so doing they were accepting and agreeing to the stated salary figure as being their "true entitlement" under applicable MoD terms and conditions, as calculated by the MoD. They were not, however, expressly agreeing to the deduction of an assumed element for London Weighting from their basic pay, pursuant to paragraph 3.13 of the NIPM, to which no reference was made in their letters of appointment, and for which deduction there was no other contractual basis. There is no challenge to the Tribunal's finding that, at this stage, these Claimants were unaware of any deductions being made from their basic pay and that they did not consent to such deductions. There is therefore no question of the specific agreement as to stated salary taking precedence over general, NIPM provisions; or of an agreement to the stated figure being produced by the application, unknown to the Claimants, of paragraph 3.13.

57. Nor can the MoD rely on the previous offer letter, where paragraph 3.13 was referred to, as an aid to construction of the loan agreement. Paragraph 3.13 applied on its face only to those who transferred permanently, and the previous letter had referred only to what would happen if the Claimant moved permanently and became an MoD employee. Nor is the MoD's underlying intention, to treat both permanent and loan staff equally and consistently, relevant to construction of the terms of employment agreed to in the letters of appointment, where no ambiguity existed.

58. Ms Shepherd was, we agree, in a different position. Since she did transfer permanently paragraph 3.13 was in play. The method of its application and the calculation of her salary figure was fully explained in her offer letter and agreed to by her.

59. However, the matter cannot be resolved by reliance on express agreement alone. Ms Shepherd, like the other Claimants, did not agree to an unlawful deduction if, in fact, paragraph 3.13 was incorrectly applied and an error made by the MoD in calculating her salary figure. As the Tribunal found, that depends on the correct construction of paragraph 3.13 and other provisions of the NIPM, to which we shall turn below in addressing Mr Tolley's additional grounds of appeal. In our judgment if, in any case, the deduction from basic pay leading to the stated salary figure was unlawful, the MoD cannot escape the consequences by relying on what is said to have been a specific agreement to that figure. The Tribunal were right, in our view, to approach the London Weighting issue by deciding what was the true contractual entitlement of each Claimant.

60. Mr Tolley's second ground of appeal is that the Tribunal failed adequately to address the second issue identified as requiring determination, namely whether any of the Claimants had a free standing, contractual entitlement to London Weighting. Alternatively, he submits that they failed sufficiently to explain why they rejected the MoD's arguments on this matter in finding, at paragraph 26, that employees who worked for the MoD in London were entitled to a London Weighting Allowance of £2,200. The Tribunal also expressed this as a finding of fact whereas, being a question of contractual construction and entitlement, it was a matter of law.

61. Mr Tolley relies on two points in support of this ground, either of which he submits leads to the conclusion that, apart from their specific terms of appointment, the Claimants had no contractual entitlement to MoD London Weighting on top of their salary. He points out that if the MoD had not voluntarily applied their own, higher rate of London Weighting than that previously consolidated into pay in other Government departments, no employee would have had any entitlement to MoD London Weighting. The Claimants cannot therefore complain of any breach of contract in its non-payment, or of any unlawful deduction.

62. (i) Firstly, he submits that read in context paragraph 10.1 of the NIPM, on which the Claimants relied, was not a statement of contractual entitlement and was not intended to give rise to legally binding rights or obligations. He submits that it was no more than a descriptive, introductory statement of the position in practice.

63. Reminding us of the decision of the Court of Appeal in Keeley v Fosroc International Limited [2006] IRLR 961, he submits that, where a contract of employment expressly incorporates an instrument such as a staff handbook or manual, it does not follow that the provisions in those documents are apt to become terms of the contract. Some provisions may be no more than declarations of an aspiration or a policy (see paragraphs 31-35 of the judgment). This, he suggests, was such a provision; and since the terms of appointment were clear, and dealt expressly with London Weighting, it was neither appropriate nor necessary for paragraph 10.1 to be incorporated.

64. This point appears to have been raised only in the course of the hearing below, since employees' entitlement to MoD London Weighting does not appear to have been in dispute in the ET3s filed by the Respondents. Nevertheless, we regard it as a point without merit. Correctly construed, and bearing in mind that the NIPM was drafted by Civil Servants in the age of collective bargaining, and not by lawyers, we regard paragraph 10.1 of the NIPM as conferring a contractual entitlement to London Weighting upon MoD employees.

65. The section containing this paragraph itself describes it in terms of "eligibility", indicating that this provision is more than merely a descriptive statement of the position in practice. Indeed, paragraph 10.1 is the only section in the Pay Manual which deals with the rights of MoD employees to receive the London Weighting Allowance. In our judgment, there was clearly a contractual entitlement for MoD employees to MoD London Weighting, pursuant to this section.

66. In relation to Ms Carr and Mr Ferguson, in addition to the stated salary figure being inclusive of London Weighting, paragraph 5 of their letters of appointment provided expressly that, during the loan period, they would be subject to MoD terms and conditions, one of which was clearly paragraph 10.1.

67. (ii) Mr Tolley's second point is that, even if it was contractual, paragraph 10.1 did not apply to those who transferred on loan, since they did not become MoD "officers" or permanent employees. We do not accept this, in view of the clear and unambiguous provisions in paragraph 5 of the loan agreements. Further, we see nothing to assist Mr Tolley in the use of the word "officers" which we all consider, in this context, is no more than Civil Service terminology for members of staff in Government departments (cf. grade titles such as Administrative Officer or Executive Officer).

68. Mr Tolley also sought to rely on the 2007 Statement of Civilian Personnel Policy, in relation to provision therein for "Permanent Allowances", including London Weighting. It is not legitimate, however, in construing the contractual entitlement for these three Claimants, to refer to a subsequent policy document as an aid to construction of the letters of appointment sent in 2005.

69. For these reasons we consider that the Tribunal were right to conclude as they did at paragraph 26.

70. In these circumstances Mr Tolley accepts that non-payment of London Weighting to MoD employees would amount in law to an unlawful deduction. However, these Claimants were not contending that they were entitled to both Treasury Solicitor or Revenue London Weighting and MoD London Weighting in addition. Their case was that their basic pay in the departments from which they transferred was not subject to, or did not contain, any element of London Weighting; and therefore that deduction of an assumed element of London Weighting in purported compliance with paragraph 13.3 of the NIPM was an unlawful deduction. Their basic pay had been reduced and replaced with a separate allowance, which was liable to be lost again in the future, and which Mr Ferguson contends was lost in his case when he moved on again to a different department.

71. If this were correct, then the fact that each Claimant ended up with a higher salary than before is of no assistance to the MoD, as Mr Tolley fairly accepts. However, he submits on appeal that the Tribunal erred in their approach to paragraph 3.13, to which we now turn.

72. In his third ground of appeal Mr Tolley submits that, although in practice the MoD applied the same scheme to loan transferees, the question of the correct construction of paragraph 3.13 arose only in Ms Shepherd's case because she transferred permanently to the MoD.

73. The Tribunal, however, approached the matter on the basis that paragraph 3.13 applied to all the Claimants, stating at paragraph 32 that "on the Claimant's permanent transfer on loan the provisions of paragraph 03.13 above apply …" They then asked themselves whether any of the Claimants had personally received the benefit of consolidation of any London Weighting allowance in basic pay in their previous department. They concluded that Ms Carr and Ms Shepherd had benefited, but that Mr Ferguson had not.

74. Mr Tolley contends that this approach involved two errors of law:

(i) The Tribunal were wrong to say that paragraph 13.3 applied to the loan transferees when on its face it expressly did not apply to them.

(ii) To the extent that it did apply the Tribunal misconstrued the final sentence of the paragraph.

75. The final sentence reads, "Any allowances which have been consolidated into basic pay in the old Department will be deconsolidated and replaced by the MoD equivalents." Mr Tolley submits that the only relevant question to which this gives rise is whether the allowance has been consolidated into basic pay in the old department. It was not relevant to determine whether the individual transferee had personally benefited from the consolidation of London Weighting in that department.

76. Consequently, whilst the Tribunal reached the right result in the cases of Ms Carr and Ms Shepherd, they did so via an incorrect route. The documents showed that Treasury Solicitors had consolidated their London Weighting Allowance into basic pay in 1998. It was therefore unnecessary to go further, in order to find that these two Claimants had themselves benefited from the increases in the minimum and maximum of the pay scales, albeit this further conclusion was, in fact, correct.

77. Further, he submits that this misdirection led the Tribunal to reach the wrong conclusion in Mr Ferguson's case, on the basis that he did not personally benefit from the consolidation of any London Weighting allowance. The Tribunal should have found that the Inland Revenue London Weighting allowance had in fact been consolidated into basic pay within that department. The question whether Mr Ferguson had personally benefited from that consolidation was irrelevant.

78. (i) In relation to the first of these points the Tribunal found at paragraph 30 that, as from the dates when each Claimant transferred, either permanently or on loan, they were all subject to MoD terms and conditions of service. On the evidence before them that was a finding they were clearly entitled to make. As we read paragraph 32 of their judgment the Tribunal were finding that, whether permanently transferring or merely transferring on loan, the provisions of paragraph 3.13 were applied to everyone in relation to the deconsolidation of previously consolidated allowances. In our view, the word "on", at the start of the second line, is most likely a typographical error (there are unfortunately several such errors running through this judgment) and should read "or". The paragraph then sits happily with the preceding paragraphs and, in particular, with paragraph 30.

79. Further, reading the judgment as a whole, the meaning of paragraph 32 is clear and reflects the reality of the situation. Whilst as a matter of contract paragraph 3.13 applied only to Ms Shepherd as a permanent employee, the MoD's case was that, in calculating the stated salary figure for the loan transferees, paragraph 3.13 was applied equally to those who transferred on loan. In our view, it was applied on the basis that there was a contractual entitlement to MoD London Weighting pursuant to paragraph 10.1, which applied to loan staff by virtue of paragraph 5 of the letters of appointment.

80. The Tribunal were therefore right to approach the matter in the way that they did and to focus on the meaning of paragraph 3.13 and in particular the meaning of the final sentence. Indeed, if paragraph 3.13 was not applied to loan staff, it would appear that there was no lawful basis for deducting assumed London Weighting from the basic pay of either Ms Carr or Mr Ferguson. The letters of appointment made no mention of any deduction, and there is no challenge to the Tribunal's finding that these Claimants did not consent to, and were in fact wholly unaware of, the deduction at the time it was made.

81. (ii) In relation to the meaning of paragraph 3.13, it is necessary to construe that paragraph as a whole.

82. On this basis the Tribunal, in our judgment, were right to conclude as they did at paragraphs 32 – 35 for the reasons they gave which, in our view, were sufficiently clear.

83. Paragraph 3.13 plainly refers to the retention of the substantive pay rate from the old department "excluding any London Weighting/RRA subsumed within existing pay – see below". We consider that the use of these words indicates a requirement for a London Weighting allowance to be actually "subsumed" within an individual's pay. The use of the words "deconsolidated" and "replaced" in the final sentence suggests that there should be an actual or subsisting amount which is capable of being deconsolidated and replaced.

84. This is what the Tribunal found and in our judgment they were not in error in so concluding. Indeed the letters of appointment indicate that this was the view of the MoD, which we regard as reassuring.

85. In relation to Ms Carr and Ms Shepherd the Tribunal's findings at paragraph 33 seem to us to be unimpeachable. Office Notice 13/98 is clear. Paragraph 3(g) provided that for Treasury Solicitor staff London Weighting would be "consolidated into basic pay on 1 August 1998"; and that "the minimum and maximum of the pay ranges in London will be increased by £1,780 (i.e. £1,776 rounded) on that date."

86. This document, together with the new pay ranges which applied with effect from 1 April 1998 (at page 275 of our bundle 2), clearly shows that this was true consolidation. Everyone benefited and not just those who were in post at the time. Each of the points on the pay scale was increased by the addition of the London Weighting element, "in effect for all time" as the Tribunal found. Thus, the fact that Ms Carr and Ms Shepherd joined Treasury Solicitors after the date of consolidation did not mean that they, personally, did not benefit from it. As the Tribunal found they still received the benefit of the consolidated London Weighting allowance.

87. To deconsolidate this allowance and replace it with the more generous, MoD London Weighting entitlement did not therefore amount to an unlawful deduction contrary to section 13 of the Employment Rights Act, and the Tribunal were correct in so finding.

THE CROSS APPEAL

88. It is convenient at this point to deal with the cross appeal on this issue brought by Ms Carr and Ms Shepherd.

89. Mr Holmes-Milner submits that the Tribunal's finding at paragraph 33 was perverse, and that there was no sound basis for distinguishing the situation of these Claimants from that of Mr Ferguson. He submits, essentially, that the Tribunal failed to give proper weight to the fact that Treasury Solicitors had told the MoD that neither Claimant had had any consolidated London Weighting in their pre-MoD pay; and to the fact that the MoD's witnesses were unable to confirm that they had. Mr Holmes-Milner introduced before us two new documents (pages 59 and 59A) which, through various tick-box entries, suggest, in his submission, that this was what Treasury Solicitors were indicating to be the position.

90. For the reasons we have given in relation to the arguments on appeal however, none of the points made by Mr Holmes-Milner seem to us to come anywhere near the threshold to be crossed in sustaining an appeal on the ground of perversity. Notwithstanding what some individuals in either the Treasury Solicitors' department or the MoD may or may not have said as to the position, the documentary evidence is, in our view, clear and the Tribunal did not err.

91. We therefore dismiss the cross appeal.

Mr Ferguson

92. The position is different however so far as Mr Ferguson is concerned, as the Tribunal found.

93. The relevant documents referred to above (Inland Revenue Pay News of 29 July 1994 and the Pay Bands) show that only staff in post in London as at 31 July 1994 had their London Weighting consolidated into their basic pay so long as they remained in the London pay area. With effect from 1 August 1994 London Weighting would no longer be paid, and people recruited on or after that date would not receive London Weighting. As from 1 August 1994 only the London band and span maxima and band A2 minima were increased by £1,750.

94. Thus the sum of £1,750, although being added to, or incorporated in, the span maxima and A2 minima, was never in fact consolidated. This is what the Tribunal found and in our view they were right to do so.

95. The effect was that the MoD deconsolidated an assumed allowance from Mr Ferguson's basic pay which had not, in fact, ever been consolidated. There is no challenge to the fact that Mr Ferguson (who had joined after 1994, was span B1 and had not reached the maxima at the date of transfer) did not personally benefit from incorporation into the revised maxima, although the letter of appointment to him suggested that this is what the MoD, in fact, believed.

96. For these reasons the Tribunal's decision at paragraphs 34 – 35 was not arrived at in error and we dismiss the MoD's appeal. We add for completeness that, even if we are wrong as to the correct construction of paragraph 3.13, the answer to the only question said to be required by Mr Tolley, namely whether the London Weighting allowance had in fact been consolidated into basic pay into the Inland Revenue department, would be no on the documentary evidence before us. The MoD's appeal would therefore fail in any event.

B. Recruitment and Retention Allowance

97. Both parties agree that there is nothing pointing one way or the other, in respect of entitlement to the Recruitment and Retention Allowance (RRA), in the Claimants' letters of appointment.

98. Mr Tolley's submission, essentially, is that none of the Claimants was entitled to the 4 per cent RRA because none of them was "posted to London" within the meaning of paragraph 9.4 of the NIPM, all of them holding Civil Service posts in other departments in London before their transfers to the MoD.

99. The Tribunal therefore erred (i) in their construction of that provision and in their conclusion, which was in any event inadequately reasoned, that the words mean "recruited or posted to the MoD in London", so that each of the Claimants qualified; and (ii) in concluding that the failure to pay RRA to the Claimants amounted to an unlawful deduction from wages.

100. Mr Holmes-Milner submits that the Tribunal's construction and conclusion were correct. The correct construction of all the relevant contractual documents, including paragraph 9.4 of the NIPM, can only be that the allowance is payable to those who are recruited or posted to a London MoD site. The origin of the recruit or person posted is therefore irrelevant. The Tribunal correctly held that the RRA is locational, depending entirely on the destination location rather than the place where the employee originated.

101. There is no dispute between the parties as to the approach to matters of contractual construction. Thus, interpretation is the ascertainment of meaning which the document would convey to a reasonable person possessed of all the background knowledge which would reasonably have been available to the parties in the situation they were in at the time of the contract. See Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1WLR 896. In construing particular words used in the contract the Tribunal should consider all the documents which constitute the contract between the parties.

102. Further, the parties' subjective intentions are irrelevant because the Court's task, on objective analysis, is to find the common intention expressed by the words chosen. Evidence of pre-contract negotiations (in this case between the MoD and the relevant trades unions) is also inadmissible, save sometimes as to the meaning of a particular word or phrase used. Similarly, evidence of the subsequent conduct of the parties is inadmissible save where a contract is ambiguous and, in the absence of any change in practice, the subsequent conduct informs the Tribunal as to the practice adopted at the time of the contract. Mr Holmes-Milner drew attention in this last respect to the case of Dunlop Tyres v Blows [2001] EWCA Civ 1032.

103. In support of his submission that the Tribunal's conclusion was correct, Mr Holmes-Milner referred to the following as being the relevant contractual documents:

(i) PI 125/1999: where the phrase "Staff recruited or posted to London on after 1 Aug '99 will be paid a new RRA" appears.

(ii) PI 153/02: containing the phrase "Staff newly arriving in London posts from that date received the 4/7 per cent RRA …"

(iii) The Statement of Civilian Personnel Policy, Version 2.0 – 2007 re Permanent Allowances PRG, stating "from 1 September 2007 all new permanent or temporary postings arising on or after this date will attract the RRA for the new post … if you are a non-industrial member of staff recruited or posted to London since 1 Aug '99 you are paid London pay lead RRA as follows …";

(iv) The NIPM, chapter 9, stating "Staff recruited or posted to London will be paid RRA as follows … staff newly posted to London since that date receive the London RRA instead".

104. Mr Holmes-Milner contends that all these expressions must bear the same construction. Thus "recruited or posted to London" means the same as "arriving in London posts"; and both of those phrases must mean the same as "all new permanent or temporary (London based) postings". The Employment Tribunal was therefore correct in their conclusion that "recruited or posted to London" can only be construed to mean "recruited or posted to a London MoD site".

105. He draws attention to the following in support of this submission. Firstly, the word "to" in "posted to" speaks only of the destination of the person recruited or posted and says nothing of their origin. No distinction is made in the contractual documents between the origin of recruits and the origin of persons posted. This is also emphasised by the use of the phrase "arriving in" London posts.

106. Secondly, the only relevant distinctions drawn in these contractual documents are (a) between postings to a London MoD site and postings to an out of London MoD site; and (b) between long-standing employees, that is MoD staff in post in London before 31 July 1999 and those in post afterwards, i.e. "newly arriving" new entrants or re-entrants.

107. Thirdly, the 2007 Statement of Civilian Personnel Policy is a permissible aid to construction of the earlier 2004/5 versions of the same, collectively negotiated agreement because the MoD conceded below that there was no change in RRA policy in 2007.

108. Finally, the MoD conceded below that, if the previous post did not have a London pay scale (the Home Office being such an example) then RRA would also be payable. The MoD's construction must therefore be that "posted to London" means "posted to a London MoD site from an out of London Civil Service department or posted to a London MoD site from a London department with no London pay scale", thereby adding an impermissible gloss on the contractual words. It is however disputed by Mr Tolley, on behalf of the MoD, that there was a concession to this effect and we shall return to this below.

109. We agree that the Tribunal's reasoned conclusion on this issue was pithily expressed at paragraph 40. We have therefore looked carefully at the relevant documents ourselves, as invited to by the parties, in order to determine the Claimants' contractual entitlement.

110. It is necessary, firstly, to consider the context for these words, appearing as they do in collectively agreed documents drafted by Civil Servants.

111. We agree with Mr Tolley, and indeed there was no real dispute about it given the evidence below (see, for example, the statement of Heather Smith at pages 388 - 389 of the bundle) that, in the Civil Service, the word "recruited" is recognised shorthand for an employee joining the MoD from a job which is outside the Civil Service. The word "posted", on the other hand, is shorthand for an employee transferring from one post to another within the Civil Service.

112. In relation to the disputed phrase, notwithstanding Mr Holmes-Milner's detailed and attractively presented submissions, we have all formed a clear view. In its ordinary usage the phrase "posted to London" indicates that the person being posted is moving to a post in London from a post which is outside it.

113. We consider that the subsequent reference in paragraph 9.4 of the NIPM to staff "newly posted to London" supports this interpretation, emphasising as it does that the posting to London is "new" for that particular employee, and therefore that s/he was not previously in a London post and is moving to London for the first time. We find unpersuasive the suggestion that the phrase "newly posted" refers only to the timing of the posting (i.e. after 31 July 1999) and not to its location. We consider that the timing of the posting is addressed by the additional words "since that date" which follow. We agree with Mr Tolley that the word "newly" qualifies the words "posted to London" which it precedes, suggesting that the person will not already be in London prior to the posting.

114. Further, the first two paragraphs of PI 125/99, from which the wording of the NIPM is derived, seem to us to indicate a clear distinction to be drawn between (a) employees who are "in a permanent duty station in London" (paragraph 1) i.e. continuing to hold a post in London; and (b) employees "posted to London" (paragraph 2) that is, those who obtain a post in London for the first time.

115. We derive no assistance from the wording of the subsequent 2007 Statement of Policy and various documents referred to by Mr Holmes-Milner, which do not seem to us to take the matter any further. In this respect Mr Holmes-Milner also sought to rely on evidence said to have been given by witnesses below. However, although some initial thought was apparently given to the obtaining of a note of evidence in this case, there was no agreement to this course. We cannot be asked now to have regard to anything said to have been said in cross-examination about a particular document or about any aspect of the evidence which is the subject of dispute.

116. Further, Mr Tolley does not accept that the MoD conceded below that, if an employee was transferred to a London department from a Government department where there was no London pay scale (for example the Home Office) they would be entitled to the RRA. He submits that it was never accepted that such a person would receive RRA on being transferred to the MoD.

117. There is no material before us which would enable us to proceed on the basis that there was any evidence given below as to any London Government department without a London pay scale or as to the position of anyone transferring to the MoD from the Home Office in London and whether they would be entitled to RRA. We cannot therefore accept the submission Mr Holmes-Milner sought to develop, that there was an inconsistency of approach or some form of custom and practice as to payment of RRA which undermined the interpretation of the disputed phrase being advanced by the MoD.

118. In our view the construction given to these words by the Employment Tribunal would produce some anomalous results, which seem to us to militate against the construction contended for by the Claimants.

119. An employee transferring to the MoD in London from another Government department in London would benefit from an allowance which they would not receive if they were simply transferring to a new post within their existing department.

120. Further, an MoD employee would be entitled to claim the RRA on each occasion when she was transferred to a different post within the MoD in London, even if she was already working in London when transferred.

121. On the Tribunal's construction, on each occasion that an employee moves from one post to another within the MoD in London, she will have been "posted to the MoD in London".

122. We agree with Mr Tolley that such anomalies cannot have been the intended result of this contractual provision, the clear purpose of which, in our judgment, is to allow those employees who had not previously worked in the Civil Service in London to receive an additional allowance for doing so.

123. The Tribunal did not explain why they rejected the MoD's case in finding as they did at paragraphs 38 – 40 but, for the reasons we have given, we consider that they erred in their conclusion that the Claimants were entitled to this allowance and that the failure to pay them the RRA amounted to an unlawful deduction from their wages. We therefore allow the MoD's appeal on this point.

C. Statement of Particulars

124. This relates only to Ms Carr and Mr Ferguson.

125. It was not in dispute before us that a finding of unlawful deduction from wages does not automatically involve a finding of a breach of Sections 1 and 4 of the Employment Rights Act. The relevant statutory provisions are as follows.

"1.- Statement of initial employment particulars.

(1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

(3) The statement shall contain particulars of-

(a) the names of the employer and employee,

(b) the date when the employment began, and

(c) the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

(4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment containing them) is given, of-

(a) the scale or rate of remuneration or the method of calculating remuneration,

4.- Statement of changes.

(1) If, after the material date, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall give to the employee a written statement containing particulars of the change.

11.- References to employment tribunals.

(1) Where an employer does not give an employee a statement as required by section 1, 4 or 8 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an employment tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned."

126. Pursuant to section 38(3) of the Employment Act 2002, if, where the Tribunal finds in favour of the employee on an unlawful deductions claim, they make an award to the employee in respect of that claim, they must increase that award where the employer is also be in breach of the duty to that employee under section 1(1) or section 4(1) of the 1996 Act, unless, under section 38(5) exceptional circumstances apply which would make an award unjust or inequitable. It is not in dispute that the awards provided for under section 38 are unrelated to the extent of any loss incurred by the employee as the result of any breach and are essentially penal in character.

127. The Tribunal's conclusion at paragraph 45 was essentially that entitlement to remuneration and allowances was so complex in this case that the letters of appointment were insufficiently explained so as to show the method of calculation of remuneration. A more detailed explanation was found to be required and the MoD had therefore failed to provide a statement of employment particulars which complied with sections 1 and 4 of the Act.

128. Mr Tolley no longer pursues the second ground of appeal in relation to this matter, set out at paragraph 40 of his grounds, namely that there were exceptional circumstances pursuant to section 38(3) and (5) which made an award or increased award unjust or inequitable in this case. Recognising that this point could only be determined following a remission to the Employment Tribunal, which the MoD wished to avoid, that ground of appeal is now no longer pursued.

129. His main challenge, contained in his first ground, is based on what Mr Tolley submits is the Tribunal's erroneous interpretation of section 1(4)(a) of the Act, which requires that a Statement of Particulars should contain "particulars … of the scale or rate of remuneration or the method of calculating remuneration".

130. Before us he submitted that this gives rise to two issues, namely (i) whether there is a breach of sections 1 and 4 in circumstances where the employer does provide a Statement of Particulars, but in one or more respects those particulars are inaccurate; and (ii) whether there is a breach of sections 1 and 4 in circumstances where the employer provides an accurate statement of the rate of remuneration, but does not provide any or any adequate explanation of the method of calculating remuneration.

131. In relation to the second of these issues, Mr Tolley contends that the use of the disjunctive word "or" in section 4 (1)(a) indicates that it is sufficient for the statement to contain one of the following: (a) particulars of the scale of remuneration; (b) particulars of the rate of remuneration; or (c) particulars of the method of calculating the remuneration. Thus whilst, as he accepts, the Statement of Particulars given to Ms Carr and Mr Ferguson did not contain details of the method of calculation, they did contain particulars of the rate, which was sufficient. The Tribunal therefore erred in rejecting the MoD's submission to this effect; and they did not in any event explain adequately why they were rejecting it.

132. Mr Holmes-Milner accepts that the wording of section 1(4)(a) is disjunctive. He does not therefore disagree with Mr Tolley's submissions to that effect on the second issue, which we agree are correct.

133. He submits, however, that the Tribunal had already determined that there had been unlawful deductions here in each case. Thus, both the stated rate of remuneration and the method of its calculation were wrong and the Statement of Particulars was therefore deficient. On the first issue he submits that inaccuracies in the stated particulars do constitute a breach of the employer's duty under section 1. These statutory provisions should be given a purposive interpretation. If the stated rate of remuneration is wrong, the employer should also be found to be in breach of sections 1 and 4. If the MoD's submissions were correct, the employer could make a mistake in the calculation of the rate of remuneration, the employee would have insufficient information to be able to discover or understand the error, and yet there would be no breach of the duty under sections 1 and 4.

134. At the hearing before us Mr Tolley submitted that, even if he were wrong in relation to his arguments as to London Weighting and the Recruitment and Retention Allowance, the Claimants were not entitled to succeed in these claims in addition. The fact that particulars of the rate of remuneration may be inaccurate does not give a Claimant the right to complain of a breach of section 1(4)(a).

135. Mr Tolley's original submission before us was that section 11(1)(a) makes it clear that there are two kinds of complaint to a Tribunal that can be made in such a case: (i) where the employer has given the employee no statement at all; and (ii) where the statement omits to give particulars of what is required. The requirements of section 11 are effectively formal in character, not substantive. The section is concerned only that employees should be informed of the essential terms of their employment, and not with the accuracy of the content of those terms.

136. He submitted that on the Tribunal's approach, even if there was an inaccuracy in the Statement of Particulars in the Claimant's favour, by referring, for example, to an annual salary of £46,000 rather than the correct figure of £44,000 there would be a breach of section 1(4)(a). The Tribunal would then be obliged to make an award of two weeks pay pursuant to section 38(3) and (4) unless they found that there were exceptional circumstances which would make the award unjust or inequitable. He submitted that it could not be right that what might be merely a typographical error in the figure stated would involve a breach of the employer's duty to provide particulars.

137. After judgment in this case was reserved the MoD sought leave to present further written submissions on the appeal in relation to this point, drawing attention to some authorities which had not previously been identified or referred to in argument before us, namely: Leighton v Construction Industry Training Board [1978] ICR 577 EAT; Mears v Safe Car Security Limited [1982] ICR 626 CA; and Eagland v BT Plc [1993] ICR 644 CA.

138. The MoD took the view that the submissions made on the first issue, relating to statements containing particulars which are inaccurate, were inconsistent with these authorities. They sought the opportunity to make further submissions in support of their case and we afforded an opportunity to both sides in the circumstances to present further submissions.

139. The position now is that Mr Tolley concedes that his original submissions as to the requirements of section 11 are no longer sustainable. He accepts that in Mears the Court of Appeal made it clear that it was open to an employee to complain to the Tribunal where the employer had given him a complete but incorrect Statement of Particulars, which contained all the required particulars, but some of the particulars given were wrong. Having read the authorities we consider that he is right to make that concession.

140. However, the MoD have now presented a "revised case" in relation to this issue as follows. Whilst accepting that it is open to an Employment Tribunal in some circumstances to find that an inaccuracy in the Statement of Particulars provided by the employer amounts to a breach of the statutory requirements, those circumstances are limited to a case involving an inconsistency between what was in fact agreed between employer and employee and what was contained in the Statement of Particulars. Mr Tolley submits that there is no breach of statutory provisions where the inaccuracy arises from a misinterpretation by the employer of the contractual terms and therefore of the particulars provided.

141. In the present case Mr Tolley submits that there is no ambiguity as to what was in fact agreed between the parties and recorded in the Statements of Particulars provided by the MoD to each of the Claimants. The dispute between the parties concerning London Weighting and Recruitment and Retention Allowance arose from questions relating to the correct construction of the contract and not to questions involving determination of the content of that contract. While the jurisdiction to interpret contractual terms is available to the Employment Tribunal under Part II of the Act, relating to unlawful deductions, that is not the case under Part I.

142. Mr Tolley relies on the cases of Leighton and Mears as providing support for these propositions and he refers in his further written submissions to various passages in the judgments in those cases.

143. He contends that the effect of these decisions is that an Employment Tribunal has power, under Part I, to determine what the parties have in fact agreed by way of contract, whether expressly, by necessary implication or by inference from all the circumstances, including the conduct of the parties. If this turns out to be inconsistent with what is contained in the Statement of Particulars the Tribunal has the power to amend or substitute the correct contractual terms pursuant to sections 11 and 12 of the Act.

144. However, this he says is the limit of the Tribunal's jurisdiction in respect of "inaccurate" Statements of Particulars. It is not open to a Tribunal under Part I to determine the meaning of the contractual terms or statutory particulars in fact provided. Whilst they have jurisdiction to do so under Part II, on an unlawful deduction claim, the two jurisdictions must not be confused. An unlawful deductions claim which succeeds on the basis that the employer has misinterpreted a contractual term does not give rise to a further claim for breach of Part I. Where the employee succeeds on a contractual construction issue within an unlawful deductions claim, he will not also succeed on a separate claim for breach of the provisions concerning statutory particulars. An inaccuracy of this kind in the particulars is simply outside the scope of the Tribunal's jurisdiction under Part I.

145. Applying these propositions to the present cases Mr Tolley submits firstly, in relation to RRA, that it is clear that the dispute between the parties raised only a question of interpretation of the relevant contractual provisions. There is no statutory requirement for details of additional contractual allowances to be set out in the Statements of Particulars. Thus, even if the MoD is found to have misinterpreted the contractual term and to have made an unlawful deduction from wages, there has been no breach of the statutory provisions relating to Statements of Particulars.

146. Secondly and similarly, in relation to London Weighting, there were two questions of contractual interpretation, namely (1) whether the references in the letters of appointment to Ms Carr and Mr Ferguson to the salary figure being "inc inner London Weighting" meant that there was express agreement that no further amount was payable by way of London Weighting; and (2) if that question was determined against the MoD, what was the contractual effect of paragraphs 10.1 and 3.13 of the NIPM. Even if the MoD lost on both arguments and were found to have made an unlawful deduction, Mr Tolley submits that there is no breach of the Statements of Particulars provisions in Part I.

DISCUSSION

147. In relation to Ms Carr we can deal with this issue shortly. For the reasons we have set out fully above we have concluded that the Tribunal erred in their conclusion as to her entitlement to RRA. In our judgment there was no contractual entitlement to the RRA in the case of any of these Claimants. There was therefore no unlawful deduction from their wages.

148. Further, in relation to London Weighting, we have concluded that the Tribunal were correct in their finding that there was no unlawful deduction from Ms Carr's wages as a result of the MoD's removal, in her case, of the consolidated London Weighting allowance and the substitution of MoD London Weighting.

149. In Ms Carr's case, therefore, it follows that the stated rate of remuneration in her letter of appointment was correct and the Tribunal therefore erred in concluding that there was a breach of the Part I provisions. We therefore allow the appeal in her case on the basis of the first ground in the MoD's Notice of Appeal.

150. In the case of Mr Ferguson there was no unlawful deduction and therefore no inaccuracy in the stated rate of remuneration so far as the RRA is concerned. We have, however, upheld the Tribunal's conclusion in his case as to the unlawful deduction claim, as a result of the MoD's removal of the assumed element of London Weighting from his basic pay.

151. It follows that the stated rate of remuneration in his letter of appointment was incorrect. The question for us is whether we can now go on to consider the MoD's revised case that the Tribunal erred in concluding that they had jurisdiction to make an additional award in his case under section 38 of the Act.

152. This issue has caused us some difficulty, in particular having regard to the way in which this point has emerged.

153. In their Notice of Appeal the MoD challenge the Tribunal's judgment on this issue on only two grounds. Firstly, it is argued that whilst particulars were not given of the method of calculation, the rate of remuneration was stated which is sufficient for the purposes of compliance with Part I. Secondly, it was argued that it was unjust or inequitable to make an award.

154. As we have already stated, the MoD abandoned this second ground of appeal. They then sought to argue before us that inaccurate particulars are nevertheless compliant for the purposes of sections 1 and 4. That submission has now been withdrawn as unsustainable in the light of the authorities referred to. The MoD now seek to present the "revised case" we have referred to above.

155. Mr Holmes-Milner objects to this course. In his further written submissions he contends that the revised case now being advanced by the MoD goes far beyond an attempt to support an existing ground of appeal by arguing a new point. The new case is no longer a challenge to the Tribunal's finding at paragraph 45, but to their decision to make an award under section 38. This, he submits, would require amendment to the Notice of Appeal, so that a new ground of appeal can be properly formulated, and the Claimants would wish to make submissions, both as to that and as to costs.

156. Further, he invites us at this stage to refuse to entertain the new argument, not only because it is, as he submits, without merit, but because it raises a new point of law which was not raised below; and he submits that there are no exceptional circumstances or compelling reasons which would justify the exercise of the Employment Appeal Tribunal's discretion in favour of allowing it. We do not have the benefit of the MoD's response to these arguments.

157. We have to say that we see some force in Mr Holmes-Milner's objections. The points now being raised by Mr Tolley go to the scope of the Tribunal's jurisdiction under Part I and are not without significance generally. We agree that they are not presently the subject of any ground of appeal, the present grounds raising quite different points and one of them no longer being pursued.

158. Amendment to the Notice of Appeal would therefore be required in order for the Employment Appeal Tribunal to consider and determine the point, and the new ground would have to be properly formulated, to enable the Claimants to respond. There will be argument as to whether this point can now be raised, not having been raised below and the Claimants also raise a costs issue in this respect, upon which the MoD would no doubt wish to be heard.

159. In these unusual circumstances we took the view that it would be wrong for us to proceed to determine this issue within the present appeal. Following correspondence with counsel on both sides, and their helpful suggestions as to the way forward, we decided that the appropriate course was for the hearing of the MoD's appeal from the Tribunal's decision on this issue to be adjourned on the agreed terms set out in the EAT's Order, to enable all parties to consider the position fully following the hand down of this judgment.