Trade union judicial review on civil service pay guidance dismissed

Cabinet Office invites national trade union representatives to discuss how pay engagement could be improved for next year following the judgement


By Richard Johnstone

24 Oct 2018

Photo: PA
A trade union challenge to the government’s civil service pay remit has been dismissed after a court ruled that there was not insufficient consultation on the guidance, which set a 1%-1.5% average pay range for increases.
The FDA, Prospect and Public and Commercial Services unions have brought a judicial review of the Treasury pay remit that covers over 400,000 civil servants. The guidance was published on 25 June, and unions argued it was produced without adequate consultation.
Following the publication of the guidance in June – which allows for average pay awards of between 1% and 1.5% – unions challenged the pay regime on three grounds. These were: that they had a legitimate expectation of a formal consultation on the pay increase amount, referred to in court as the ‘X figure’; that there was a duty of sufficient inquiry that the government had not met; and that, even short of the statutory consultation, there was voluntary consultation on the pay proposal that was inadequate.
However, in her judgement published yesterday, Mrs Justice Simler said that all the challenges failed.

The judgement highlighted that meetings were held in June in the build up to the publication of the guidance, but concluded that these did not amount to consultation.

“By letter dated 5 July 2018 the minister for the Cabinet Office wrote apologising ‘regarding the process around the publication of this year's pay remit’,” Simler notes. “I do not read this apology as an acknowledgement of any promise to consult.  It seems to be a simple reference to perceived discourtesy shown in the process. Again, in light of all the evidence, this is not a basis for concluding that there was in fact a promise of consultation made by Mr Thomas [Mervyn Thomas, the executive director for employee and trade union relations at the Cabinet Office] on behalf of the defendant.”

On the second argument of on the duty for sufficient inquiry, Simler said that the pay guidance in general, and the 'X figure' in particular, effectively operates as a ‘cost control’ mechanism governing administrative arrangements between Treasury and departments/agencies, and setting a limit on annual average pay awards that can be made without departments needing to set out a business case.

Simler concluded that “the remit does not set the terms of service of civil servants (including the claimants’ members) or determine the pay award of any individual civil servant… Although the process may be onerous, nevertheless a business case can be advanced by any department to support a larger award.”
As a result, the judgement concluded “it was rational for Ministers to conclude that they could decide this question without seeking the claimants’ views on the X figure”.
The third element of the challenge also fell after the judge concluded that the process was not a formal consultation. The unions claimed “that the process adopted between March and June was in substance a consultation about the 2018 guidance and that included the X figure.”, and that the language used in these consultations was “incompatible with the defendant’s characterisation that it simply involved ‘the provision of information’ with any dialogue being limited to the expression of views but without any commitment to consider those views”.
However, Simler said “I do not accept these submissions” and concluded that the unions and the Cabinet Office were not embarked on a formal consultation.
“My conclusion altered by the fact that the word “consultation” was used from time to time… The context of the email exchanges and discussions where the word consultation was used is inconsistent with its use by the defendant’s officials in that formal sense.”
Responding to the decision in their favour, a government spokesman said: “The government is pleased with this ruling which will allow departments to continue implementing the 2018 Pay Award for their employees without any further delays. Departments who have not already implemented the pay awards will continue to engage with local union representatives as usual.
“Cabinet Office officials have also invited national trade union representatives to discuss how the process of engagement on pay could be improved for next year and we look forward to working constructively with unions in the future.”
PCS general secretary Mark Serwotka said that the result underlined the need for a return to national pay bargaining in the civil service.
“Only then can meaningful pay negotiations take place,” he said. “Evidence put forward to the court demonstrated that there is no effective mechanism in place that allows for the unions to collectively bargain on behalf of their members and that situation will not be tolerated by PCS.”
Prospect deputy general secretary Garry Graham said: “It is deeply disappointing that the court has not found in our favour – but what our legal challenge has flushed out is both revelatory and deeply damaging to the Cabinet Office.

“Whatever the result of the judicial review- we are not going away and will continue to argue for a fair deal for our members.”

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