ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4121039/2018 Hearing at Edinburgh on March 2019 Employment Judge: M A Macleod (sitting alone) Serge Cornu v The Edinburgh Woollen Mill (Group) Limited — 2019

Mr Cornu remained employed by The Edinburgh Woollen Mill Limited as a store supervisor. His unlawful deduction from wages claim concerned April and May 2018, when his hourly rate increased to the National Minimum Wage rate of £7.83 but did not include the additional 20p per hour supervisor premium that had been paid in previous years. From June 2018 his rate was increased to £8.03 per hour, representing the minimum wage plus 20p.

The Tribunal accepted that the applicable standard contract provided that rates of pay were normally reviewed in October and that there was no contractual right to any increase following a review. Mr Cornu argued that a term should be implied by custom and practice requiring payment of the National Minimum Wage plus 20p per hour. The respondent denied that the contract contained or implied such an entitlement.

Applying the custom and practice authorities referred to in the judgment, the Tribunal found that Mr Cornu had not proved a reasonable, notorious and certain contractual term. The previous premium had not always been the same, because it had been 26p before being reduced to 20p, and Mr Cornu's evidence indicated that a smaller differential would have satisfied his wish for supervisor pay to remain above sales assistant pay. The Tribunal also found that the express contract reserved pay increases to review and did not guarantee them, and that the respondent's practice was explicable as discretionary rather than legally obligatory.

The Tribunal concluded that Mr Cornu had no contractual or legal entitlement to be paid £8.03 per hour in April and May 2018. His right was to have pay reviewed with no guarantee of an increase, and the respondent had met its legal obligation by paying the National Minimum Wage. The unlawful deduction from wages claim therefore failed and was dismissed, with no monetary award recorded.