POA Circulars

109 | 02.07.2013

Payback of Additional Hours (TOIL) Bulletin 8

In August 2010 the POA backed a test case “a breach of contract claim” on behalf of POA member, Mr Thomas George, when the employer (NOMS) failed to repay the member’s TOIL within 5 weeks as per Bulletin 8.

Bulletin 8 was, of course, in the form of an offer made by NOMS to the POA which was put to the membership and agreed by them some years ago. Once agreed it was then a collective agreement. It was intended to alter the terms and conditions of employment of prison officers; it changed pay, hours and it provided that TOIL would be repaid in 5 weeks. It was the common understanding that Bulletin 8 was contractually binding between each prison officer and NOMS.

But when Mr George took a breach of contract claim to the County Court in the autumn of 2011 for NOMS failure to give him the TOIL he was owed within the 5 week period stipulated in Bulletin 8, NOMS claimed that the agreement was not contractually binding and NOMS was entitled to disregard the 5 week provision as and when it wished. On the 3rd February 2012 Mr George’s claim for breach of contract was dismissed.

Following receipt of this decision the NEC determined on the advice of Counsel to appeal. On the 18th and 19th December 2012 the appeal was heard and Mr John Hendy QC, Standing Counsel to the POA, presented the Union’s case in the Court of Appeal. Judgment has now been handed down. Once again the Court accepted the argument of NOMS that Bulletin 8 did not mean what it said in providing that TOIL should be repaid in 5 weeks and the clause was merely “aspirational”. A copy of the judgement is attached. Members will be interested to read the arguments advanced on behalf of the employer.

So, the result of this judgment is that elements of Bulletin 8 are aspirational and not contractual, even though NOMS still refer to Bulletin 8 for all new and existing staff.

The effect of the judgment is that the years of flexibility of prison staff in not demanding repayment of TOIL within 5 weeks has been abused. It seems NOMS simply made the offer of repayment of TOIL in 5 weeks in order to induce staff to accept the other elements of Bulletin 8 whilst privately regarding management as not bound by it.

As a result of NOMS attitude towards this aspect of Bulletin 8, revealed by this decision we encourage all members to demand repayment of outstanding TOIL as soon as possible after earning it.

It is clear that the common understanding of working additional unpaid hours and repayment of those hours no longer exists.

The Executive therefore advise all members to cease working additional unpaid hours unless they are required to do so as part of their contractual obligations. Furthermore, if a Governor orders any member to work additional hours unpaid, the member should seek written reasons for the requirement and then set out their preference for repayment of the hours in writing.

The Executive also ask all local committees to raise this issue with Governors at the next SMT/POA meeting and demand assurances from the Governor MSL’s agreed or imposed can be achieved without the use of unpaid additional hours save for the contractual requirements of Bulletin 8, which the Governor will be required to set out in writing for all staff.

The Executive are disappointed by this decision and the attitude of NOMS to a collective agreement freely offered by it to the membership which included a very clear and unambiguous statement that TOIL would be repaid within 5 weeks. It is disappointing that the courts acceded to NOMS claim that the words did not mean what they said and that management was completely free to disregard them. The NEC remind members to follow the POA’s Policy and only work to their contractual obligations.

Finally, the POA will now be required to pay the legal costs of NOMS, which will no doubt be considerable. So remember, you are now paying for providing your employer with your goodwill.

Please draw the contents of this circular to all your members.

Thanking you in anticipation of your total support and co-operation.


Yours sincerely

  

STEVE GILLAN
General Secretary