EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
Bus drivers were transferred under TUPE by the Respondents. They claimed entitlement to meal allowances payable for any day when they were rostered to have a break away from the garage at which their route was based, and to disturbance allowance if they had a compulsory move from one garage base to another that was distant from the first. The contractual documentation was sparse, since it related to terms arising from service with the transferor any definitive record of which was lost in history. The Judge dismissed the claims for meal allowance, but gave reasons which did not appear to apply the law he had set out as applicable, did not engage with the Claimants’ case as to one of the bus routes, did not explain how he had reached his conclusions, and did not rectify these failings in a Reconsideration Decision.
An appeal was allowed on the basis that the reasoning was inadequate. A cross-appeal against the conclusion in respect of disturbance allowance was also allowed, again for inadequacy of reasons, for failure to deal with an argument that had been raised, and for dealing with a point which had not been raised, which he then appeared to use to support his conclusions.
In the first case the whole issue was remitted to be dealt with by a fresh Tribunal; in the cross-appeal, however, the employer argued that on the evidence and given the way in which the case had been argued, not only was the conclusion the Judge reached impermissible but he would have been bound to reject the claim. This relied upon the Claimants having each said they wished to be transferred to another garage from which the bus route on which they worked was thereafter to operate, and understood in requesting this that they would not be paid disturbance allowance. The Judge had based his decision on this being an unconscionable bargain, but during the hearing duress had specifically been disavowed by the Claimants, and nor had they run an argument based on the effects of the implied term of trust and confidence; and an argument based upon the agreement being a breach of TUPE since it varied pre-existing terms was not clearly advanced. Except in the case of the two Claimants who had indicated that they wished to move with their regular bus route under protest, it could not be said that the apparent agreement to a move to a different base without payment of disturbance allowance was ineffective to render the non-payment of that allowance an unlawful deduction – it was one the Claimants concerned had agreed to. Accordingly, the decision in respect of the Claimants other than the two was reversed. If the two wished to argue their case they had not given effective consent, that issue would be remitted too on their cases alone.
 UKEAT 0136 – 16 – 1011
England and Wales
Updated: 27 January 2022; Ref: scu.572667