Although collectively agreed terms can be incorporated into individual contracts in certain circumstances, the Employment Appeal Tribunal (EAT) held in Hamilton v Fife Council that a term in a collective agreement, stating that permanent posts would normally be advertised unless there were teachers who had been designated surplus, was not appropriate for incorporation.

Basic facts

Ms Hamilton, who has high-functioning autism, was a religious education teacher at Queen Anne High School in Fife. On 3 March 2016, she was informed by the head teacher that there was a surplus of staff within the department and that, as the staff member with the shortest service, she was likely to be transferred to another school in accordance with a collective agreement known as LNCT 06.

Following that meeting, Ms Hamilton wrote to the head teacher indicating that the school was in breach of the collective agreement and that, if it did not address her concerns, she would consider lodging a tribunal claim. After a meeting with the head teacher on 26 April 2016 to ascertain her concerns, Ms Hamilton lodged the first of several grievances. She then went off sick until her ultimate resignation in September 2017. In August 2017, the school advertised a vacancy for a full-time position in her department.

Prior to the termination of her employment, Ms Hamilton lodged a number of tribunal claims under the Equality Act 2010. Following her resignation, she brought a further claim of constructive unfair dismissal on the basis that the council was in breach of paragraph 2 of LNCT 06 which stated that: “Unless there are teachers who have been designated surplus, any permanent post will normally be advertised.”

Tribunal decision

The tribunal agreed that the council had failed to make reasonable adjustments on two grounds - firstly in the way that it had applied the collective agreement and secondly in relation to the meeting on 26 April. It therefore awarded compensation to Ms Hamilton for hurt feelings.

Despite a further finding that there had been a breach of the policy in the way that it had been applied to her, the tribunal dismissed her constructive dismissal claim because she had not resigned in response to the breach.

Ms Hamilton appealed, arguing that the tribunal was wrong not to hold that paragraph 2 of the policy contained an obligation which she had a right to enforce. In addition, by advertising the vacancy, the council had also breached the duty of trust and confidence that was implied in her contract of employment.

EAT decision

While agreeing that collectively agreed terms can sometimes be incorporated into individual contracts of employment (for instance terms relating to pay, holiday entitlement and hours of work), terms which are truly collective (such as redundancy procedures) are not.

In this instance, paragraph 2 was no more than a broad statement of agreement between the employer and the union about what would happen when there was a surplus of staff. The vagueness of paragraph 2, and the fact that it did not specify any circumstances in which it could be invoked by a particular employee, led the EAT to conclude that it was not intended to confer any individual contractual rights on Ms Hamilton.

As for the argument about the breach of the duty of trust and confidence, the EAT held that Ms Hamilton had failed to show that the “action by the employer [was] without reasonable and proper cause.” As the tribunal had concluded that the council acted in good faith and had reasonable and justifiable grounds for advertising the post, her argument could not succeed.


This case illustrates the principle that, while parts of a collective agreement may be incorporated into individual contracts of employment, this does not necessarily mean that the whole collective agreement is incorporated. Some parts will be essentially collective in nature between the employer and the union. The courts will consider whether or not the part of the collective agreement relied on by the employee was intended, by both the union and the employer, to be part of individual contracts of employment.