AO PAY: EMPLOYMENT TRIBUNAL CASE

You will be aware that PCS represented two DCLG members who argued that they should have had a pay increase in 2010 and thereafter in line with their right to an annual award in line with the RPI annual measurement of inflation.  The case had legal implications for nearly all current AO staff in DCLG.

This case was subject to a seven day hearing in January 2015.  The decision was reached at the end of April but with a right of appeal that had to be submitted in June.  Unfortunately the Tribunal decided against the two Applicants/PCS members and after internal discussion in early June in the light of advice from its lawyers, the Applicants and PCS decided not to lodge an appeal.

The Tribunal’s decision – which we briefly set out in the appendix below – will of course be disappointing to all AO members. However PCS believes that the case was nevertheless well worth contesting given the positive legal advice we received prior to the hearing and the Department’s year on year commitment to holding back (i.e. cutting in real terms) the pay of AO staff.

In that context PCS DCLG National Branch is glad that we took the case despite the enormous effort it involved for representatives and the ultimate decision of the Tribunal.  The alternative would have been for PCS to simply tolerate year after year of AO pay being frozen on the grounds that senior management think that DCLG AO pay is (at best) ahead of “the market” and (at worst) excessive.

This is not a view DCLG pay representatives accept.  We believe that AO salaries in DCLG are modest and have been seriously eroded in real value since 2009, even though, thanks to the efforts of Departmental representatives, they are higher than those applying in a number of other Departments.

Going forward, and in the context of a highly restrictive Government pay policy, DCLG PCS representatives will be trying to deliver this year and in future years:

  • Pay increases in excess of the rate of inflation for all grades of members;
  • New, meaningful, pay progression arrangements;
  • A durable and beneficial pay system.

The challenge before us is an extremely difficult one, not just with regard to this year but for the whole period of the Government’s policy of severely restricting civil service pay.  In all honesty PCS representatives may not be able to achieve these aims and certainly not quickly.

PCS representative Chris Hickey would be happy to discuss the case and AO pay more generally, with any AO members who would find such a discussion helpful.  Please email Chris if you want to arrange a discussion with him.

 

APPENDIX: AO PAY – THE TRIBUNAL DECISION

The case before the Tribunal was very involved and so is the judgment.  This Appendix seeks to give members a sense of certain key issues before the Tribunal and in the Tribunal’s decision.

As a result of the 1998 Long Term Pay Agreement and subsequent settlements with PCS most AO staff in DCLG had a contractual entitlement to an annual increase to the minima, maxima and milestones of the AO pay range in line with the RPI measure of inflation, effectively a right to an annual increase in salary. This contractual entitlement was acknowledged by DCLG.

However DCLG suspended that entitlement in 2010, 2011, 2012 and 2013 (and again in 2014) on the basis Clause 22 of the 1998 Long Term Pay Agreement.

Clause 22 reads,

DETR reserves the right to suspend those provisions of this Agreement which are not listed in Clause 21 above temporarily and exceptionally where such action is required for the reasons of public sector pay policy and affordability. In such an event, the Unions will be consulted so that any representations they may wish to make can be taken fully into account. Should such a decision be taken, DETR will provide the unions with a full and detailed explanation of the exceptional circumstances and a response to any representations made. The statement will also set out the duration of the suspension which will be no longer than 12 months.

On behalf of AO members PCS has long argued that Clause 22 was not incorporated into contract but if it was then the Department was obliged to comply with all its provisions in suspending the RPI increase.

In trying to avoid a long account of the case it is sufficient to note for the purpose of this bulletin that in rejecting the Applicants’ claims the Court concluded that:

  1. The first sentence only of Clause 22 was incorporated into individual contracts of employment but the remainder of the paragraph was not incorporated.
  2. It is essentially for the Department to decide whether suspension “… is required for the reasons of public sector pay policy and affordability” provided it does not ignore relevant matters or take into account irrelevant matters or act in an arbitrary manner.
  3. The Applicants’ case should be rejected.

If you wish to discuss the outcome of the case in more detail please email Chris Hickey.