HC Deb 16 December 1966 vol 738 cc954-64

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Howie.]

4.2 p.m.

Mr. Frank Hooley (Sheffield, Heeley)

The case of Mr. S. Noble is somewhat complicated, but I will try to be as succinct and clear as I can. It raises the important principle that a public body backed by a powerful Department of State must always be scrupulously fair, perhaps even generous, in dealing with a dispute about conditions of service with an individual employee who cannot command large private resources. Further, when a public body is faced with a legal liability towards an individual employee, it should discharge that liability to the last penny.

Mr. Noble, who is a qualified scientist, being a Bachelor of Science and an Associate of the Royal College of Science, entered the employment of the Sheffield Regional Hospital Board in the Blood Transfusion Service as a scientific officer on 1st April, 1960. His conditions of service were governed by Whitley Council agreements for the Health Service. In accordance with Whitley Council P.T.A. Circular No. 83, which was the agreement then in force, he was placed on the salary scale relating to the probationary period. The agreement provided a probationary period of at least two years for all entrants to the grade.

On 8th October, 1962, Mr. Noble's head of department intimated to the Blood Transfusion Sub-Committee that he was issuing a certificate of proficiency to Mr. Noble. That meant that, at that date, Mr. Noble became entitled to enter the post-probationary salary scale, beginning at a salary of £925 per annum—again in accordance with P.T.A. Circular No. 83, which was still in force at that date.

I must emphasise that Mr. Noble's legal entitlement at 8th October, 1962, was a salary at the rate of £925 per annum, because it has been represented to me by the Minister that the agreement by the Hospital Board two and a half years later to pay this salary was a concession. It was nothing of the sort. It is common ground between counsel for Mr. Noble and the legal adviser to the Regional Hospital Board, Mr. J. B. Griggs—and I have his letter to the Regional Board of 1st November, 1965—that Mr. Noble's correct salary from 8th October, 1962, should have been £925 per annum.

But the Regional Hospital Board did not pay up—not until February, 1965, after a long and wearisome dispute. So we have the situation, accepted somewhat belatedly by legal opinion on both sides, that, on 8th October, 1962, having received his certificate of proficiency, Mr. Noble was entitled to post-probationary salary of £925 per annum.

On 29th November, 1962, a new Whitley Council circular was issued—P.T.A. No. 96. It superseded P.T.A. No. 83, under which Mr. Noble's salary had been determined up till then. No. 96 provided a new set of scales for probationary and post-probationary periods for scientific officers like Mr. Noble and for assimilation of existing staff on to the new scale. It made it clear that an officer on the post-probationary scale at a salary of £925 per annum, which was his legal entitlement, should be assimilated to a salary of £1,020 per annum.

The Board declined to pay this amount. In fact it would only pay £870 per annum, which was now the starting point of the post-probationary scale under the new circular. The Board contended that the operative date of the agreement was 1st April, 1962, at which time Mr. Noble was still a probationer. This contention ignored two facts. The first was that Mr. Noble was already entitled to salary of £925 per annum from 8th October, 1962, and, secondly, that Circular No. 96 itself provided for assimilation. Paragraph 3(a) of the Circular said: …As of the date of appointment if he is an entrant between 1 April 1962 and the date of this Circular. The date of the circular was 29th November, and it is Mr. Noble's contention that he was an entrant to the post-probationary scale within the meaning of its provisions and entitled to a salary of £1,020. The Board contended that, whatever the circular said, it was not intended to apply to Mr. Noble or people in his position. I find this a startling principle. If a public employer is entitled to interpret to suit itself conditions of service laid down in the agreement arrived at through the proper machinery, despite the objections of the persons most affected, this is not likely to be conducive to harmonious staff relations.

Mr. Noble disagreed with the interpretation strenuously and, obtaining no redress, sought legal advice and obtained counsel's opinion, which was flatly and unambiguously in his favour. Counsel stated (1) The claimants"— two people were involved— were entitled to be assimilated under P.T.A. Circular No. 96 at the new rate of £1,020 per annum; (2) that a letter before action should be sent to the Regional Hospital Board claiming the amount due in accordance with my above advice. The Board was then faced with the fact that if Mr. Noble pursued his claim in the courts he was very likely to succeed. I believe that a writ was issued in February, 1966. The Board capitulated in June, 1966, nearly four years after the beginning of the dispute, placed Mr. Noble on the correct salary scale under the circular then appropriate and agreed to pay his legal costs, but for some extraordinary reason refused to settle in full the arrears of salary accumulated over the three years or so of the dispute. It paid only £444 17s. as against a claim of £647 Os. 8d., so Mr. Noble was still £202 3s. 8d out of pocket, quite apart from the fall in the value of money in the intervening period.

Mr. Noble was then faced with the awkward decision of whether to pay out more money from his pocket in pursuit of a full legal settlement of his just claims or to seek redress by some other means.

Mr. Noble chose the latter course and sought my assistance. I endeavoured to obtain some satisfaction from the Minister of Health. As always, my right hon. Friend was courteous and detailed in his reply. But he made two points which I find utterly unacceptable. First, my right hon. Friend claimed that, while it was true that the Board later agreed to Mr. Noble's assimilation to the post-probationary scale on 2nd October, 1962, at a salary of £925 per annum, this was not in accordance with the Whitley Council's intention and was a concession. I am sorry, but it was not a concession. It is common ground in the legal opinion of both sides that at 8th October, 1962, under Circular 83, which was in force at that date, Mr. Noble's legal entitlement was £925 and there was no question of any concession at that date.

The Minister said secondly: I do not accept that there is an obligation on a public employer to meet a claim in full when, as in this case, the liability is disputed. That is a rather startling principle. It seems to mean that if a dispute arises between an employer and an employee and legal opinion is on the side of the employee, the mere fact that the case is in dispute entitles the employer not to settle in full whatever the claim may be. I find this a rather curious and certainly unsatisfactory principle where public employers are concerned.

We have to face the fact that many people in the position of Mr. Noble do not have the means necessarily to pursue their claims right through the courts. They cannot know, although they may have very good legal advice that their claim is good, that ultimately the highest courts will make an award in their favour, and they cannot necessarily take the risk of going through court after court in pursuit of their claim as far as a public body with immense financial resources can take it. I therefore find that this principle enunciated by the Minister—that where a liability is in dispute, the employer, who apparently in this case has accepted it in principle, need not bother to settle the claim in full.

I find it the more remarkable in this case that, having paid some arrears of salary and having paid the legal costs, the employer should for some reason regard it as satisfactory not to pay the full arrears of salary which had been calculated and the figure of which is known.

On those grounds I have ventured to trouble the House with this matter. I hope that the Minister may now feel disposed to take a more generous view and to authorise full payment of Mr. Noble's arrears of salary.

4.13 p.m.

The Parliamentary Secretary to the Ministry of Health (Mr. Charles Loughlin)

Let me say at the outset that the parties to the dispute with which we are concerned have both agreed to and accepted a settlement. As my hon. Friend the Member for Sheffield, Heeley (Mr. Hooley) has said, Mr. Noble is a scientific officer and joined the Blood Transfusion Service under the Sheffield Regional Hospital Board as a probationer on 1st April, 1960, in accordance with the terms and conditions of service negotiated by the appropriate Whitley Council.

In 1962, the Whitley Council published a new agreement and there was a dispute between Mr. Noble and the Board on its interpretation which went on until about a year ago, when Mr. Noble took legal advice and proposed to institute legal proceedings against the Board. Before the action was taken consultations took place and, as a result, the Board made an offer in settlement of Mr. Noble's claim, and Mr. Noble accepted it.

The Board has a letter written by Mr. Noble's solicitors saying that the matter has been finally settled. The settlement included a lump sum payment in adjustment of past salary and a revised current salary in accordance with the national scales in force at that date.

In industry generally, such disputes are not uncommon but in these disputes we normally expect the decision of the court, or the settlement out of court, to put an end to the matter. However, I trust that the House will bear with me for a moment or so while I go into this very complicated issue.

My hon. Friend said that the Whitley Council agreement in force at the beginning of 1962 was P.T.A. Circular No. 83. Under this agreement, the salary scale for the basic grade was divided into a probationary period, starting at £650 rising by nine annual increments to £925, and a post-probationary period starting at £925 and rising by six annual increments to £1,150.

As he rightly said, before an officer could proceed to the post-probationary part of the scale a certificate of proficiency had to be given by the head of his Department and had to be accepted by the Hospital Board. The minimum period of probation was two years and a man who got the certificate in his third year would advance from the £700 to the post-probationary salary of £925. On 1st April, 1962, Mr. Noble reached the salary point of £700. On 8th October, the head of the Department issued a certificate and if the Board had acted upon it Mr. Noble would thereupon have been transferred to the post-probationary salary scale and his salary would have been advanced from £700 to £925, with effect from 8th October, 1962, in accordance with the circular to which my hon. Friend referred.

On 29th November, before the Board had adjusted Mr. Noble's salary the Whitley Council published a new salary agreement, P.T.A. Circular 96, which revised the salary scale retrospectively with effect from 1st April, 1962. Circular 96 introduced a new basic grade scale of £720 at starting point, rising to £1,345 compared with the old scale of £650 to £1,150. Instead of being continuous the two parts of the scale overlapped, the probationary scale ran from £720 to £1,020 while the post-probationary scale started at £870 and rose to £1,345. This overlapping was done deliberately in order to enable graduates with first or second-class honours degrees to retain in their post-probationary period the salary advantage that they had previously had in their probationary period.

The circular said that the new scale would operate from 1st April, 1962, and that an officer on the scales of Circular 83 would be assimilated to the scales of Circular 96 as at 1st April, 1962, or at the date of appointment, if he was an entrant between 1st April, 1962, and the publication date of the new circular. Acting on its own interpretation of this provision the Board decided, because at 1st April, 1962, Mr. Noble was a probationer, with a salary of £700 under Circular 83, he should from that date be considered a probationer with a salary of £770, under Circular 96.

This was so as far as the Board was concerned, whether or not it had acted immediately on the certificate of proficiency and paid Mr. Noble at £925 a year on the 8th October under Circular 83. The new agreement also laid down conditions for transfer from the new probationary to the post-probationary scales, and the Board decided that Mr. Noble's salary should be £870 at 8th October. The effect of this was that Mr. Noble's salary, under Circular 83, was £700 at 1st April and his expectation was £925 at 8th October with an eventual maximum of £1,150; but under Circular 96, he would have a salary of £770 at 1st April and an expectation of £870 at 8th October with an eventual maximum of £1,345.

Mr. Noble, of course, took a different point of view. He said that at 8th October, when Circular 96 had not been Published, his certificate had been issued and he should from that date have had the post-probationary salary of £925 under Circular 83. When Circular 96 was issued he should have had his salary further adjusted from 8th October to the corresponding point of the new overlapping post-probationary scale which was £1,020. Whereas his expectations under Circular 83 had been an immediate increase of £225 and an ultimate maximum of £1,150, he was seeking an immediate increase of £320 and an ultimate salary of £1,345.

The Board relied on the assimilation terms of Circular 96, which said that an officer on a scale in Circular 83 should be assimilated as at 1st April, and on that date Mr. Noble was, in fact, still a probationer; not, as Mr. Noble argued, as at 8th October when he got his certificate of proficiency. Mr. Noble, however, said that his case was covered by the alternative assimilation provision in Circular 96. This was the one which said that an officer on a scale in Circular 83 should be assimilated at the date of appointment if he was an entrant between 1st April and the date of the circular. Mr. Noble claimed that on the date of his certificate he was an entrant—that is, an entrant to the post-probationary scale between those two dates. It was on this that he proposed to base his action against the Board.

The Board was advised by the Secretary of the Management Side of the Whitley Council that the alternative assimilation proposed in Circular 96 was intended by the Council solely to meet the situation of officers entering the Board's employment after the operative date of the Circular. It was not applicable to officers already in the service moving from one scale to another. This provision for new entrants to the service is common form in Whitley agreements which have retrospective effect and its meaning has not previously been questioned by staff organisations or management.

Mr. Hooley

Is not there a further clause in that Circular which refers specifically to new entrants?

Mr. Loughlin

The last minute of my speech was a reference to new entrants. The interpretation I was talking about, on which the Board was advised by the Secretary of the Management side of the Whitley Council, was that the alternative assimilation proposed and which Mr. Noble wanted to be applied in his own case was intended to meet solely those cases of officers entering the Board's employment after the operative date of the circular.

After the Whitley Council had reached the agreement embodied in Circular 96, the Staff Side of the Council discussed with the Ministry the position of officers like Mr. Noble, without first and second-class honours degrees, who completed their probation between the operative date of the new circular and the date on which the circular was issued. For these officers the immediate financial benefit under Circular 96 was less than they had expected under Circular 83, although eventually they would reach a considerably higher maximum.

As some of these officers might not, for various reasons, follow a permanent career in the Hospital Service, the Department agreed that, if any such officer appointed before 1st April, 1962, preferred to be paid according to the old Circular, special authority for this would be given by means of a variation of the Whitley agreement under the National Health Service Remuneration Regulations, 1951, but an officer having once exercised this option would not be allowed to change to the scale in Circular 96 when that was to his advantage.

Mr. Noble was given this option, but refused. Eventually, in February 1965, the Regional Board told Mr. Noble that it would allow payment under Circular 83 at £925 from 8th October—that is, the date of his certificate—to 28th November which is the day before the issue of Circular 96. Discussions followed between the Board, the Ministry and the Staff Side of the Whitley Council on a method of assimilation to the current salary scales which would bring about a reasonable settlement. There had been further Whitley agreements since 1962, the latest being Circular 144, effective from 1st April, 1964.

A proposal was made to Mr. Noble that he should proceed up the old scale under Circular 83 from £925 at 8th October, 1962, to £960 at 1st April, 1963, and to £995 at 1st April, 1964, when he would transfer to the salary of £999 under Circular 114. Mr. Noble rejected this. He obtained a legal opinion regarding the assimilation terms and prepared to institute proceedings. In the event, instead of the matter going to court, it was settled out of court.

Neither the regional hospital board nor the Ministry accepted Mr. Noble's interpretation of the Whitley Council circular. He had the opportunity to proceed with the matter in court, but he chose to settle it out of court. I appreciate that my hon. Friend has claimed that this man has not the financial backing to pursue the case in court, but there were two people joined in the action so that the financial implications were not so great as my hon. Friend might suggest.

Mr. Noble was a free agent. He had taken legal action against the board, and at that time one could have a measure of sympathy with him in the sense that the matter had not been finally disposed of. Before the case went to court, however, Mr. Noble, through his solicitor—I have here a copy of the letter from his solicitor—agreed to a settlement. Mr. Noble having agreed to that settlement rather than proceed in the courts, I think that that is the end of the matter, and I am not prepared to reopen it at all.

Question put and agreed to.

Adjourned accordingly at twenty-seven minutes past Four o'clock.