alexander_standard1991
The court considered under what circumstances a collective agreement between an employer and trades unions would be incorporated into an individual employee’s contract: ‘The so-called ‘normative effect’ by which it can be inferred that provisions of collective agreements have become part of individual contracts of employment is now well recognised in employment law (see, for example, Harvey on Industrial Relations and Employment Law, vol. 235). However, serious difficulties still arise because the principle still has to be one of incorporation into the individual contracts of employment and the extraction of a recognisable contractual intent as between the individual employee and his employer. The mere existence of collective agreements which are relevant to the employee and his employment does not include a contractual intent (see, for example per Ackner LJ, Robertson v. British Gas [1983] IRLR 302). The contractual intent has to be found in the individual contract of employment and very often the evidence will not be sufficient to establish such an intent in a manner which satisfies accepted contractual criteria and satisfies ordinary criteria of certainty. Where the relevant subject-matter is one of present day-to-day relevance to the employer and employee, as for example wage rates and hours of work, the continuing relationship between employer and employee, the former paying wages and providing work, the latter working and accepting wages, provides a basis for inferring such a contractual intent. Where, as in the case of redundancy, the situation is one which does not have daily implications but only arises occasionally the inference will be more difficult to sustain. Here, there had not previously been any question of compulsory redundancies. There was no previously tested position by which a local custom could be demonstrated, nor was there any previous situation involving any of the relevant individuals, or for that matter any other employees of the defendants from which it could be inferred as a matter of individual contractual intent, that individual contracts of employment were to include as a matter of contractual right and obligation selection for redundancy on the seniority principle. It must be borne in mind that although the present plaintiffs would be the beneficiaries of the application of such a principle, by a parity of reasoning there would be other employees who would be disadvantaged. Similarly, there is no necessity to infer an intention to incorporate since collective agreements have a function and value of their own which exists wholly independently of any individual contract of employment.
. . Therefore, even in a case which involved wide express words of incorporation the Court considered it necessary to look at the content and character of the relevant parts of the collective agreement in order to decide whether or not they were incorporated into the individual contracts of employment.
The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn.’
Hobhouse J
[1991] IRLR 286
Citing:
Cited – National Coal Board v National Union of Mineworkers 1986
A collective agreement between employer and the recognised trades union was ‘inapt to become enforceable terms of an individual’s contract of employment.’ Such collective agreements may deal with the appropriate mechanisms for dealing with . .
Cited – Young v Canadian Northern Railway Company PC 25-Nov-1930
Manitoba – Collective agreements have a function and value of their own which exists wholly independently of any individual contract of employment. Lord Russell referred to a ‘Wage Agreement’ entered into between the appellant’s trade union and the . .
Cited by:
Cited – Kaur v MG Rover Group Ltd CA 17-Nov-2004
The applicant was employed by the respondent who had a collective agreement with a trade union.
Held: Not all elements of the collective agreement need be intended to be legally enforceable. She complained that the collective agreement would . .
Endorsed – Wandsworth London Borough Council v D’Silva and Another CA 9-Dec-1997
The council wanted to change its Code of Practice on Staff Sickness. Employees objected. The Council argued that the Code was not part of the employment contract, and that in any event the contract reserved to the council the right to alter the . .
Cited – George v The Ministry of Justice CA 17-Apr-2013
The claimant appealed against rejection of his claim that the respondent had broken his contract of employment as a prison officer by changing the collective agreement for prisons officers. The judge had found that the respective terms were not . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 01 November 2021; Ref: scu.220324