Mr M Devlin Mr T Richardson Mr K Kirton Mr C Stephen Mr A Perkins Mr C Scott v Tyne & Wear Passenger Transport Executive (T/A Nexus) — 2020

The claimants were employed by Tyne & Wear Passenger Transport Executive (T/A Nexus) as infrastructure workers in the Capital Delivery Section. Their claims under section 13 of the Employment Rights Act 1996 concerned the period May 2016 to May 2018, and the issue was whether, in addition to the agreed 33⅓% permanent nightshift supplement, they were also contractually entitled to a further 10% weekend working supplement when rostered on permanent nights at weekends.

The tribunal accepted that the parties had agreed in March 2010 that the maximum shift allowance should be 33⅓% for staff working permanent nightshift, regardless of whether this included work at weekends, and that staff who had previously received 43⅓% were red-circled. It found that this agreement was implemented in April 2010 and then operated without complaint until Mr Scott raised the issue in 2016. The tribunal also accepted the respondent’s evidence that the Red Book was not routinely updated after annual pay negotiations and that the 1 September 2011 version did not record every later collective agreement.

On construction of the contracts, the tribunal held that the reference to “Collective Agreements” was not confined to the 1 September 2011 Red Book. Applying the objective interpretation approach identified in Arnold v Britton and the guidance in Tyne and Wear Passenger Transport Executive (T/A Nexus) v Mr S Anderson and Others, the tribunal found that a reasonable person with the relevant background knowledge would understand the claimants’ contracts to incorporate the wider collective bargaining arrangements, including the 2010 supplement cap. The “Entire Contract” clause did not alter that conclusion.

Because the 2010 collective agreement capped the allowance at 33⅓% and was incorporated into the claimants’ contracts, the tribunal held that no additional weekend supplement was payable. The claims for unauthorised deduction from wages therefore failed. The hearing was on liability only, so no monetary remedy was awarded.