The claimants in Abrahall v Nottingham City Council were paid a salary with an annual increment based on length of satisfactory service up to a ceiling. An employee who had not reached their grade ceiling would receive an annual increment in addition to any pay increase negotiated by the union.
In 2010 the employers decided to change the pay system (which it thought operated unfairly) and a new collective agreement was signed, including a fresh pay policy taking effect from November 2010. In May 2011 the employers decided to freeze annual increments for two years. The employees made unlawful deduction from wages claims.
The EAT, allowing the employees' appeal from the rejection of their claims at tribunal level, decided that their contractual right to increases had not been taken away by the subsequent collective agreement or by their decision to work on after the employers' decision to freeze increases.
The EAT commented that the removal of a valuable contractual right in an employment contract can only be achieved by clear language. In addition, if the new pay policy was intended to withdraw the entitlement, the employers should have given employees a statutory written statement containing details of the change. This was not done.
Of more general interest is the EAT's rejection of the employers' argument that the employees had accepted the incremental pay freeze by working on without protest. The words and actions of the unions at the time unequivocally indicated that they, and through them the employees, did not agree to the changes being made. An unequivocal “no” was not transformed into an unequivocal “yes” simply by silence over a period of time. The employers might very well reasonably have assumed from the unions’ and employees' silence on the point after May 2011 that they probably weren’t going to do anything about it (and had lost the right to treat their contracts as repudiated) but that is not the same as agreeing to a variation to their contracts.