Ed’s Employment Law Update – 7th November 2018

Does a recognised trade union have a legitimate expectation of consultation over a government department’s remit for negotiating pay?

 

Not on the facts of this case, held the Administrative Court in R v Minister for the Cabinet Office, refusing an application for judicial review from three unions representing 200,000 civil servants.

 

Judicial review was sought after a series of meetings between union and government negotiators discussing the 2018 Civil Service pay remit guidance. The unions contended that the guidance was issued in breach of an express promise to them (made on 4th June 2018) that they would be consulted over the figure (known as ‘X’) that formed the basis for annual average pay awards for affected staff (here X was 1-1.5%).

 

X had been set by ministers in March 2018, subject to guidance being agreed across Whitehall. Unions were invited to discussions from late March to June 2018, but were not told what X was until the guidance and X had been finalised within Whitehall and published on 25th June.

 

The unions contended that a commitment to consult over X was made at a ‘fractious’ meeting on 4th June. This was disputed, with the government contending it made an offer of further meetings for ‘information exchange’ (not ‘consultation’), in line with past practice under the 1% Civil Service pay cap lifted in 2017.

 

The application for judicial review failed. The unions’ primary case was that a promise was made of consultation over X, which created a legitimate expectation of consultation, under the principles in R v Brent LBC ex p Gunning.

 

There had been no ‘clear, unambiguous, unqualified promise’ of consultation, even taking the unions’ evidence about the 4th June meeting at its highest. Furthermore, any offer at such a late stage could not have created a legitimate expectation of consultation. Two other grounds, relating to a duty to make sufficient enquiry and adequacy of voluntary consultation, also failed.

 

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