(sitting alone) Mr J O’Hara v Represented by Ms D Flanigan - Solicitor XPO Supply Chain UK Ltd — 2021

The claimant, a Class 2 driver at the Livingston site, was employed from 11 February 2019 to 11 August 2020. His Addendum stated that drivers were entitled to shift allowances of £1.29 for 06:00 to 07:00, £1.92 for 18:00 to 22:00, £2.38 for 22:00 to 06:00, and £25.71 for night out. The tribunal read that wording in its natural and ordinary sense as conferring an entitlement to the hourly allowance for any part of a shift worked between 06:00 and 07:00, regardless of whether the shift began before 06:00.

The respondent relied on clause 12 of the contract and on a collective agreement, including a 2009 schedule said to amend the earlier site agreement. The tribunal accepted that the original 2007 collective agreement was capable of incorporation, but found that the 2009 schedule had not been communicated to the claimant during his employment, despite the agreement's own term that amendments would be fully communicated before any amendment became effective. On that basis, the purported amendment was not effective against the claimant.

The tribunal also held that, even if the 2009 schedule had been communicated, its wording did not clearly restrict the 06:00 to 07:00 allowance to drivers who started exactly at 06:00. Read with the collective agreement as a whole, including the statement that shift allowances would be paid pro rata for rostered basic shift hours worked, the bracketed note '(new shift allowance for drivers starting at 06.00 am)' was treated as describing the new allowance rather than imposing the limitation contended for by the respondent. The tribunal therefore found the claimant remained contractually entitled to the allowance and that the non-payment was an unlawful deduction from wages. The respondent was ordered to pay £336.72 gross.