At the end of last week, the High Court held that the Department for Work and Pensions was in breach of two PCS members contracts when it abolished the check-off system.

As part of its policy to get rid of check-off in the public sector over the last few years, the DWP ended the system in May 2015. However, members of the PCS trade union brought a claim that they had a contractual right to the arrangement contained within a salary policy published by the Department on its intranet. For its part, the DWP disagreed, arguing that the term was not contractual or that, even if it was, it could be withdrawn by giving reasonable notice.

PCS also argued that the union had the right to enforce the term under the Contracts (Rights of Third Parties) Act 1999 which allows third parties to enforce a term if it “purports to confer a benefit” on that person. Following the DWP’s withdrawal of check-off, PCS had lost membership funds, despite a campaign for members to switch to Direct Debit payments (which the majority did). PCS claimed under the 1999 Act that the check-off term conferred a benefit on the union.

The High Court has now given its judgment, holding that the term “you can choose” within the salary policy meant that staff had a right to check-off which could not be removed either unilaterally or by giving notice. The judge also held that, as the arrangement clearly conferred a benefit on the union, it must be able to enforce the arrangements. There will be a further hearing to establish what damages are payable.

Victoria Phillips of Thompsons Solicitors commented “Following the Government’s climb down over check-off in the Trade Union Bill this case underlines that union members check-off may be contractual and so cannot be unilaterally withdrawn”

Thompsons were instructed by the PCS to act on behalf of its members. We will provide a full summary of the judgment shortly.