Case 4117001/2018 · Employment Tribunal
(sitting alone) Malcolm McGuire v Caledonian MacBrayne Crewing (Guernsey)Limited — 2018
- Case reference
- 4117001/2018
- Decision date
- 3 December 2018
- Jurisdiction
- Scotland
- Judge
- Employment Judge Michelle Sutherland
- Venue
- Glasgow
Parties
2 namedClaimant
(sitting alone) Malcolm McGuire
Key findings
Tribunal's reasoningThe claimant, Malcolm McGuire, was employed as a bosun from 12 June 2000. His employment was governed by the Western Isles Agreement, which stated that overtime was payable only if worked and did not specify any guaranteed overtime. The tribunal found that, on the MV Caledonian summer timetable, the deck crew had historically worked a pattern of overtime that generated around 164 hours a year and overtime payments of about £2,800, but that those arrangements had been in place only on that vessel and the overtime was not paid if it was not worked.
On 14 February 2018 the claimant was compulsorily transferred to the MV Hebridean Isles. He complained on 13 February 2018 about the loss of his claimed guaranteed overtime and later about inadequate notice of transfer. The grievance about notice was upheld on 28 June 2018, but the grievance about guaranteed overtime was not upheld. The claimant argued that the overtime pattern on the MV Caledonian was reasonable, certain and notorious and therefore gave rise to an implied contractual entitlement. The respondent said the overtime was variable and not guaranteed.
The tribunal applied section 13 of the Employment Rights Act 1996, with reference to section 27 on the meaning of wages and section 23 on time limits, and considered whether any term could be implied by custom and practice. It held that, if an implied term existed at all, it related only to working on board the MV Caledonian in the summer timetable and did not carry across to work on the MV Hebridean Isles. The tribunal also found there was no evidence of any custom and practice giving pay protection on compulsory transfer other than in a redundancy situation, and the claimant had not transferred in a redundancy situation.
The tribunal therefore concluded that the claimant had not been paid less than the amount properly payable and there had been no unlawful deduction from wages. The complaint was dismissed and no monetary award was made.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | The complaint concerned failure to pay what the claimant described as guaranteed overtime. The tribunal found there was no implied term entitling him to guaranteed overtime on the MV Hebridean Isles and no entitlement to pay protection on compulsory transfer outside a redundancy situation. | Dismissed | — | — |
Legal tests applied
6 references- s.13 ERA 1996
- s.23 ERA 1996
- s.27 ERA 1996
- implied term by custom and practice
- Devonald v Rosser and Sons
- Sagar v H Ridehalgh and Son Ltd
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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