CONTRACT OF EMPLOYMENT: Construction of Term
PERSONAL BAR: Mora taciturnity and acquiescence
The claimants were successful before the Tribunal in arguing that night allowances were properly payable to them in terms of their contracts of employment. The respondent appealed and contended that the Tribunal had erred in its approach to the construction of the contracts. It was not in dispute that clauses in a collective agreement had been incorporated therein, although the material provisions were not known to the claimants at the time of contracting. The respondent also appealed the Tribunal’s decision that the doctrine of mora taciturnity and acquiescence did not apply to such claims.
Held:
Appeal allowed in relation to the ground relative to construction of contract. The Tribunal had erred in concluding that the reasonable person test applied in circumstances where the claimants were unaware of the term they subsequently claimed was incorporated. The relevant clause was clear and provided for two equally valid alternative approaches to payment of allowances. There was no default or implied provision. The question of which option applied to the claimant’s’ contract was a matter for evidence. There was material before the Tribunal on which it could make findings in relation to the issue of which option applied. The case would be remitted for the Tribunal to make those findings based on the evidence already available.
Appeal dismissed in relation to the ground relying on mora taciturnity and acquiescence. The plea is not apposite where statute imposes a limited period during which a remedy can be sought. The respondent had not sought to amend to introduce a plea of delay and affirmation. Further, as the claimants were party litigants it would be unfair and inappropriate simply now to treat the argument as one of delay and affirmation.
Citations:
[2018] UKEAT 0012 – 17 – 1805
Links:
Jurisdiction:
England and Wales
Employment
Updated: 24 April 2022; Ref: scu.618920