Ms Barbara Yellow v Tesco Stores Ltd — 2021

The claimant was employed by Tesco from November 2017 until her resignation by notice expiring on 2 May 2019. She claimed payment for work she said she carried out at home in response to work-related calls, texts, emails and WhatsApp messages, and said she felt compelled to respond because many requests came from managers including the Store Manager. Tesco said there was no expectation that she reply outside work, that any additional paid work was to be clocked in at store, and that home working had not been authorised.

The tribunal accepted that the claimant was conscientious, that workplace equipment issues contributed to her working in ways she considered necessary, and that Mr Wilson knew she was working at home. However, after considering the messages and the contract, it found no message requiring an immediate reply or requiring work from home, no express right to be paid for home working, and no legal basis to imply such a term. The claim for unpaid home-working wages therefore failed.

The tribunal also dismissed the constructive dismissal and bonus complaints. It found no breach arising from unpaid wages because no wages were properly due, and found that the claimant had not taken her complaint beyond an informal complaint to Mr Wilson despite knowing formal routes were available. It held that Mr Wilson's handling of the informal complaints fell far short of repudiatory breach and that the bonus claim would fail under the bonus scheme terms in any event. The final-day pay claim failed because the claimant had left work sick on 1 May, did not attend on 2 May, and was objectively still on sick leave under the relevant policy and communications.