Mr R Ross For the v Mr M Purchase — 2019

The claimant had been employed by the Government Legal Department since 1988 and had received an ADP allowance from 1 October 1992 until 31 August 2017. The dispute was whether he remained entitled to that allowance after his temporary Grade 7 promotion in April 2015 and his substantive Grade 7 appointment in September 2017. The respondent stopped the allowance from 1 September 2017 and did not seek repayment of the earlier period.

The tribunal rejected the case that he was an "existing Grade 7" for the purposes of the August 2017 trawl notice. Reading the notice objectively together with the April 2015 temporary promotion letter, the claimant remained SEO for promotion purposes. It also rejected the fallback reading of the trawl notice: on promotion the notice provided for a 10% increase or the Grade 7 minimum, and stated that permanent allowances would be consolidated into salary. On the tribunal's construction, that wording did not preserve a separate continuing entitlement to the ADP allowance.

The tribunal also rejected the argument that a term had arisen by custom and practice or implication requiring the allowance to continue until an express contractual variation. It held that after the CSPCSC was replaced by the CSMC in 1996, continued payment of the allowance was explained by the original contractual framework, and after April 2015 by mistake or discretion rather than by a new contractual entitlement. Mr MacGruer's February 2012 email, which said the claimant would likely lose the allowance on promotion to Grade 7, and the absence of any reference to the allowance in the April 2015 promotion letter, were inconsistent with an implied permanent entitlement.

Finally, the tribunal held that paragraphs 3625(a) and (b) of the CSPCSC did not assist the claimant because those provisions concerned transfers, not his voluntary promotion. Even if a discretion to continue payment on a mark-time basis had arisen, the tribunal found the respondent could rationally refuse to exercise it in the claimant's favour. The result was that there was no entitlement to the ADP allowance after 1 September 2017 and the unlawful deduction from wages claim was dismissed.