Mr S Masterson and Others v Asda Stores Ltd: 2301910/2022 and 2301911/2022
EMPLOYMENT TRIBUNALS
Case No 2301910/2022, 2301911/2022
Between
Mr S Masterson and OthersClaimantAsda Stores LtdRespondent
Before
Employment Judge EvansMr Findley (instructed by counsel) for claimantMs Tutin (instructed by counsel) for respondentDate 4 July 2024
JUDGMENT
[1]The claims, which are for unauthorised deductions from wages, are not well-founded. The claims fail and are dismissed.[2]The claims of 26 claimants were struck out or dismissed prior to the Hearing leading to this judgment. This judgment brings to an end all outstanding claims under the case numbers set out above.[1]The claims, which are for unauthorised deductions from wages, are not wellfounded. The claims fail and are dismissed.[2]The claims of 26 claimants were struck out or dismissed prior to the Hearing leading to this judgment. This judgment brings to an end all outstanding claims under the case numbers set out above.
REASONS
[1]These are the reasons for my judgment given orally at the end of the Hearing on 4 July 2024. Page 1 of 22[2]The claim came before the Tribunal between 1 and 4 July 2024. The parties had agreed a bundle of documents prior to the Hearing containing 376 pages. All references to page numbers are to the pagination of that bundle.[3]The Tribunal heard evidence from the following witnesses who were all crossexamined: 3.1. Mr Allen Machemedze (a Warehouse Operative at the respondent’s Dartford Distribution Centre and a shop steward for the GMB Union (“the GMB”)); 3.2. Mr Paul Campbell (an HGV driver at the respondent’s Dartford Distribution Centre); 3.3. Mr Barry Sherwood (a Warehouse Operative at the respondent’s Dartford Distribution Centre and a shop steward of the GMB); 3.4. Mr David Turner (a Senior Director of the respondent).[4]Mr Findley and Ms Tutin both provided written submissions prior to oral submissions being heard. Those of Mr Findley ran to six pages. Those of Ms Tutin ran to 15 pages. An issue arose in relation to the construction of a particular clause in a collective agreement during closing oral submissions and, at my request, Mr Findley provided further written submissions dealing with this issue after oral submissions had concluded (running to 5 pages) to which Ms Tutin replied by providing further written submissions (running to 2 pages). I am grateful to the representatives for the time they spent preparing written submissions, including at short notice. Procedural history[5]The claim was presented on 1 June 2022 on behalf of 78 claimants. The claim was given two numbers (as shown above). The claim number ending 11 related to Mr Ian Mayers who is in fact the second named claimant in the schedule attached to the claim number ending 10 (page 31).[6]The claims of 21 claimants were struck out pursuant to rule 37(1) by a judgment claimants were struck out in a judgment sent to the parties on 6 June 2024 (page 66). Two further claims were withdrawn. The representatives agreed during the course of the Hearing that the extant claimants as at the date of the Hearing were the 52 whose details were set out in the schedule of loss at page 347.
The issues
[7]A very brief list of issues had been included in the case management orders of 14 October 2022 (page 60). The respondent had produced a draft list of issues considering matters in more detail prior to the Hearing. The claimants were not Page 2 of 22 prepared to agree that list and produced on the first morning of the Hearing a competing list of issues of their own. The respondent was not prepared to agree that list.[8]In summary, this case is about the payments due to the claimants in respect of 27 and 28 December 2021 and 3 January 2022. Essentially, the claimants say that they were entitled to “bank holiday enhancements” in respect of those days. The respondent says that they were not. If the claimants were not entitled to “bank holiday enhancements” on those dates, their claims fail. If they were entitled to "bank holiday enhancements” on those dates, I will need to decide further issues in order to determine their claims.[9]It seemed to me that the reason the parties were unable to agree a list of issues was that each of them had to some extent incorporated into their draft their own position in relation to the principal issue as summarised in paragraph [8] above. I therefore suggested that we took a less involved approach to the drafting of the principal issue and the parties agreed to that.[10]I was also keen that the parties should be very clear about the terms on which they contended the claimants were employed at the relevant time. This issue was not dealt with expressly in either of their lists of issues, although the position seemed reasonably clear from the claim form and response. This issue was therefore also discussed.[11]At the conclusion of the discussion in relation to the list of issues, it was agreed that they were as set out in italicised text below. It was further agreed that the principal issue – that is to say issue 1 below – would be dealt with as a preliminary issue because, if decided in the respondent’s favour, that would be determinative of the claims. These reasons therefore deal with that issue only. The Respondent asserts that each of the Claimants was at the relevant time employed under either the Statement of Terms and Conditions applicable to Warehouse Staff [bundle pages 106 to page 112] or the Statement of Terms and Conditions applicable to Transport Staff [bundle pages 98 to 105] (together “the Statements of T&C”) contained in Appendix 3b to the National Recognition Agreement (“the NRA”); The Claimants agree that they were so employed save that to the extent that there is an inconsistency between the Statements of T&C and the NRA the terms set out in Appendix 3a to the NRA [bundle pages 93 to 96] prevail. The Parties agree that the issues for the Tribunal to decide are as follows: 1. What wages were properly payable to the Claimants in respect of 27 and 28 December 2021 and 3 January 2022? Specifically were any ‘Bank Holiday Enhancements’ (as set out in Appendix 3a at the bottom of page 94 and the top of page 95 of the bundle) properly payable to the Claimants for any hours worked on(i) 25 and 26 December 2021 and/or 1 January 2022 (as the Page 3 of 22 Respondent contends) or(ii) 27 and 28 December 2021 and/or 3 January 2022 (as the Claimants contend)? It was agreed that Issue 1 would be dealt with as a preliminary issue. If the determination of that issue does not dispose of the claims, the Tribunal will then determine: 2. Which dates were the Claimants rostered to work across the 2021/22 festive season? 3. If the Claimants were rostered to work when the Bank Holiday enhancements applied, whether they opted to be paid double or single time for the hours worked, with shift premia paid at single time? (The Respondents say that the Claimants did not have any right to be paid for hours accrued but untaken which they were granted by way of the Bank Holiday Enhancements). 4. What does each Claimant say they should have received in respect of their wages paid on 29 January 2022 for the pay period from 25 December 2021 to 22 January 2022? (Presently, the Claimants have focused upon the pay they say was due to each of them on 27 and 28 December 2021 and 3 January 2022 only.) 5. Were the total wages paid to each Claimant on 29 January 2022 for the pay period from 25 December 2021 to 3 January 2022 less than the amount of the alleged properly payable wages on that occasion? (Presently, the Claimants have focused upon the pay they say they received on 25 and 26 December 2021 and 1 January 2022 only). 6. What repayment and/or compensation does each Claimant say they are entitled to? (The Claimants have provided a Schedule of Loss seeking arrears of pay only).[12]The issues as set out above were circulated by me to the representatives at the end of the first day of the Hearing and agreed at the beginning of the second day. The Law Unauthorised deductions from wages
The Law
[13]Section 13 of the Employment Rights Act 1996 (“the 1996 Act”) provides that an employer may not make a “deduction” from the “wages” of a worker unless the deduction is required or authorised by virtue of a statutory provision or a relevant provision of the worker’s contract or the worker has previously signified in writing their agreement or consent to the making of the deduction.[14]Section 13(3) provides that a deduction is made: Page 4 of 22 Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the amount of the wages properly payable by him to the worker on that occasion…[15]For an amount to be “properly payable” it is necessary for the worker to show some legal entitlement to the sum in question, although the entitlement need not necessarily arise from an express term in the contract (New Century Cleaning v Ltd v Church [2000] IRLR 27). The first question is therefore always whether any sum is legally due. It is only if the answer to that first question is in the affirmative that the Tribunal will need to consider whether or not there has been a deduction from that sum (Hellewell v Axa Services [2011] ICR D29) and, if there has, whether such deduction was authorised in terms of subsections 13(1) and (2) of the 1996 Act.[16]An amount will not be “properly payable” if its payment is conditional upon an event which has not occurred. For example, in Lucy v British Airways plc UKEAT/0033/88 a failure to pay a flying allowance to crew who had been grounded did not give rise to an unauthorised deduction from wages because the payment of the flying allowance was conditional on the employees flying. Equally, in Johnson v Veritas Technologies (UK) Ltd [2023] EAT 15, the EAT concluded that a commission payment was not properly payable when a condition for payment (the approval of two senior managers) had not been met.[17]The vexed question of whether a Tribunal can determine the terms of a contract when deciding an unauthorised deduction complaint was answered in the affirmative by the Employment Appeal Tribunal in Agarwal v Cardiff University [2018] EWCA Civ 2084. Principles of contractual interpretation etc[18]One of the general rules which applies when interpreting the express terms of a contract is that the Tribunal’s aim is to give effect to what the parties intended. The golden rule in ascertaining that intention is that the words of the contract should be interpreted in their grammatical and ordinary sense, unless some modification is necessary to avoid absurdity, inconsistency or “repugnancy”. That is to say the words used in the contract should be interpreted in accordance with conventional usage.[19]Turning to collective agreements, a presumption that they are not enforceable in law is contained in section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992. That presumption is confirmed by clause 7 of the National Recognition Agreement in this case (page 81). Nevertheless, the terms of a collective agreement may still be enforceable by an individual employee if the relevant terms have been adopted or incorporated into their individual contract. Not all collectively agreed terms will, however, be apt for incorporation. A term that is incorporated into an individual contract of employment from a collective agreement should be construed in accordance with the usual rules of construction. Page 5 of 22[20]Hobhouse J set out the position in relation to incorporation as follows in Alexander v Standard Telephones and Cables Ltd (no.2) [1991] IRLR 286: The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document, or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn.[21]The question of aptness was also considered in Framptons Ltd v Badger [2006] All ER (D) 127. At [33] the EAT commented: 33. Fourth, not all terms typically found in a Collective Agreement will be incorporated. That is so, even where the contract of employment ostensibly incorporates all the terms from the Collective Agreement. The terms must, by their nature and character, be suitable to take effect as contractual terms. Some collective terms will not do so because, for example, they are too vague or aspirational, or because their purpose is solely to regulate the relationship between the collective parties.[22]In National Coal Board v Galley [1958] 1 WLR 16 the Court of Appeal found that a provision contained in a collective agreement that “deputies shall work such days or part days in each week as may reasonably be required…” was “meant to have binding effect”, noting that “The court will supply an implied condition as to reasonableness in many contracts where duties are not fully defined”. It rejected the employees’ contention that the term had no contractual force because it was too vague.[23]In Lee and others v GEC Plessey Communications [1993] IRLR 383 the High Court was considering terms of a collective agreement relating to redundancy matters. Referring to Alexander, Connell J noted at [177]: In order to decide whether this has occurred in a particular case, the court must look for the necessary contractual intent on both sides of the bargain Page 6 of 22 and also look at the content and character of the relevant parts of the collective agreement.[24]He concluded that on the facts of the case the necessary contractual intent was lacking. In relation to content, he found as follows at [181] to [182]: Further, as to its content, the agreement dealt with redundancy terms and/or severance pay in two places, namely, the restoration of the 1985 terms up to 31 May 1991 and the agreement thereafter to negotiate on any enhanced severance payments. Whilst the former term is, as I conclude, apt for incorporation, the latter is not. Such a term is unenforceable (see Walford v Miles [1992] AC 128 at A36G138H), it is uncertain, and whilst it is appropriate for collective negotiations, it is not suitable for incorporation in an individual contract.[25]As such, a term contained in a collective agreement may be insufficiently precise to enable it to be enforced as a contractual obligation.[26]In Malone and others v British Airways Plc [2011] ICR 125 the Court of Appeal held that a term in a collective agreement headed “minimum planned crew complements” which stated “All services will be planned to the current industrially agreed complements for each aircraft type” and which included a table setting out the crew numbers for each type of aircraft for the various classes of service was not intended to be individually enforceable. Although the term did impact to some extent on the working conditions of individual employees (which pointed towards it being apt for incorporation) that had to be set against the potentially disastrous effect on the defendant’s business if an individual employee could with impunity refuse to fly without the agreed crew complement. The Court applied the rule whereby a term of uncertain meaning is to be construed by asking what, objectively considered in the light of the factual matrix against which the agreement was made, the parties should be taken to have intended the term to mean. The Court concluded that the parties could not have intended the term to be individually enforceable; it was intended partly to protect jobs and partly to protect crews against excessive demands in terms of work and effort and binding only in honour.
Findings of fact
[27]These findings of fact do not of necessity refer to all of the evidence that was before me. As in many cases, the bundle was of excessive length and contained many documents to which no reference was made. I made plain at the outset that I would not necessarily read pages contained in it that were not referred to in the witness statements, the written submissions or otherwise during the course of the Hearing. The National Recognition Agreement Background findings in relation to the National Recognition Agreement Page 7 of 22[28]The respondent agreed a National Recognition Agreement (generally, “the NRA”) with the GMB in 2012 (“the 2012 version of the NRA”) which has since been amended on various occasions. The version of the NRA included in the bundle is version 5 dating from February 2014 (pages 69 to 258) (“the 2014 version of the NRA”). In their closing submissions the parties accepted that the 2014 version of the NRA was the version of the NRA in force at the time of the events giving rise to the claim. None of the witnesses provided any significant evidence about the negotiation of the 2012 version of the NRA.[29]However, despite the lack of oral evidence about the origins of the NRA, Mr Turner explained in his oral evidence, which I accepted, that the NRA is “refreshed” on an annual basis as a result of negotiations at the national NJC. Mr Turner chairs the respondent’s side of the NJC. The GMB side comprises national stewards. Mr Turner explained that he was currently working at NJC level on version 7 of the NRA. Mr Turner explained that amendments to the NRA resulting in new versions generally arose from pay negotiations and restructuring exercises. There was a process of negotiation with the details of amendments being agreed at NJC level.[30]I find that the NRA is therefore a document which has evolved over time (and, indeed, which continues to evolve) as a result of negotiations between the respondent and the GMB. The relevant provisions of the NRA[31]The version of the NRA relevant to the claim – that is to say the 2014 version of the NRA - has four sections (page 70). Section 1 is the NRA itself. Section 2 is “Ways of Working”, Section 3 is “Pay” and Section 4 is “Policies”.[32]In part 4 of Section 1 of the 2014 version of the NRA, under the heading “a. Negotiation”, the NRA states (page 79): Following negotiation, it has been agreed between ASDA Distribution and GMB that the terms and conditions of employment set out in Appendix 3 will have contractual effect for all hourly paid Warehouse and Transport colleagues employed by ASDA Distribution at or from the ASDA Distribution sites listed in Part 1 of Appendix 1 and that these colleagues’ pre-existing terms and conditions of employment are therefore amended, with effect from the date of this agreement, insofar as necessary to give effect to the terms set out in Appendix 3.[33]There is in fact no “Appendix 3”. Rather there is an Appendix 3a (page 89) and an Appendix 3b (page 97). In light of the lack of evidence in relation to the original negotiation of the 2012 version of the NRA as noted above, no clear explanation for this has been provided by either party. However, I find that inconsistencies of this nature are likely to be explained by the way in which the NRA has evolved over time as found at [30] above. I therefore find on the balance of probabilities that as Page 8 of 22 a result of negotiation changes were made to the 2012 version of the NRA which led in time to the 2014 version of the NRA. Appendix 3a[34]Appendix 3a is headed “Summary of Terms and Conditions” and then, immediately below those words, there is a subheading of “Proposed National Terms & Conditions”. There are two sets of Proposed National Terms & Conditions: the first set is for “Drivers/Shunters” (pages 89 to 92). The second set is for “Warehouse” (pages 93 to 97).[35]Under the heading “Customary Holidays” (page 90) the Proposed National Terms & Conditions for Drivers/Shunters states: All Bank Holidays are ‘fixed’ to the calendar day they fall on. In the event that the Government re-designates these, by local agreement with GMB sites will [sic] decide to redesignate or not. If the Government designates additional public holidays in any year, these will not count automatically as Bank Holidays and will be agreed nationally with the NJC. Some sites have nominated day [sic] and this remains – those sites are; Wigan, Warrington, Bristol, Lutterworth ADC and Washington ADC. Bank holidays as follows; Christmas Day, Boxing Day, New Year’s Day, Good Friday, Easter Monday, May Day, Spring Bank Holiday, Late Summer Bank Holiday (each a “Bank Holiday”). Asda Distribution may require you to work on any Bank Holiday.[36]I will refer to this section under the heading “Customary Holidays” as “the Summary Term”. The equivalent provision for “Warehouse” is at page 94 and is in identical terms. Appendix 3b[37]Appendix 3b begins at page 97. That page describes Appendix 3b as follows: Statements of Terms and Conditions Transport Warehouse Clerical Clerical with Warehouse 40%[38]The Statement of Terms and Conditions – Transport is between pages 98 and 105 (“the Transport T&C”). The Statement of Terms and Conditions – Warehouse is between pages 106 and 112 (“the Warehouse T&C”). Page 9 of 22[39]Both the Transport and the Warehouse T&C are clearly intended to be used as templates with the details of the relevant employees entered (for example, their name and their normal place of work at page 98).[40]There is nothing in either of the Statements of Terms and Conditions which deals with the question of how any conflict between the Statements and other parts of the NRA should be dealt with.[41]The clause in the Transport T&C dealing with bank holidays is entitled “Customary holidays” (page 102). It provides as follows: Asda Distribution recognises the following bank or public holidays: Christmas Day, Boxing Day, New Year’s Day, Good Friday, Easter Monday, May Day, Spring Bank Holiday, Lates Summer Bank Holiday (each a “Bank Holiday”). Asda Distribution may require you to work on any Bank Holiday. Insert difference for Grangemouth and Falkirk All Bank Holidays are ‘fixed” to the calendar day they fall on. In the event that the Government redesignates any Bank Holiday that falls on a Saturday or Sunday, Asda Distribution reserves the right at its sole discretion to decide to leave them as they fall or to redesignate them to other days. Insert difference – nominated day – Bristol and Wigan Washington Lutterworth ADC If the Government designates additional public holidays in any year, these will not count as Bank Holidays for the purposes of this contract. [Highlighting included to reflect the original.][42]I will refer to this section under the heading “Customary Holidays” as “the Statement Term”. The equivalent clause in the Warehouse T&C is in identical terms (page 110). The dispute giving rise to the claims[43]The origins of the dispute giving rise to the claims lies in the days of the week on which Christmas Day, Boxing Day, and New Year’s Day fell in 2021 and 2022: 25 December 2021 – Saturday - Christmas Day 26 December 2021 – Sunday - Boxing Day 1 January 2022 – Saturday - New Year’s Day[44]The printout from the .gov.uk website (beginning at page 289) states in several places “If a bank holiday is on a weekend, a ‘substitute’ weekday becomes a bank holiday normally the following Monday”. The printout shows the following in relation to the Christmas/New Year Period in 2021/2022 under the heading “Past Page 10 of 22 bank holidays in England and Wales”: 3 January Monday New Year’s Day (substitute day) 28 December Tuesday Boxing Day (substitute day) 27 December Monday Christmas Day (substitute day)[45]The claimants’ trade union, GMB, “proposed to move 28th December [i.e. the Boxing Day “substitute day”] to 26th December 2021 and 3rd January 2022 [i.e. the New Year’s Day “substitute day] to 1 January 2022” ([7] Mr Machemedze statement). However, they wanted the Christmas Day bank holiday to be on the “substitute day” of 27 December. This was because Christmas Day is the one day on which the depot in which all the claimants work is closed. Consequently, none of the claimants would be working that day and so none of them would be entitled to the “Rota’d In” Bank Holiday enhancements set out in the second row of the box at the bottom of page 94.[46]The respondent did not agree. Mr Turner set out how it saw its approach at [14] of his witness statement: “In line with the NRA, Asda decided (at its sole discretion) to leave the bank holidays as they fell. In other words, work on 25 and 26 December and 1 January would attract the Bank Holiday Enhancements”. I find that the respondent therefore purported to exercise the discretion contained in the Statement Term as set out at [41] above.[47]Some of the claimants (and other employees) raised a collective grievance about this on 25 January 2022 (page 263). They stated, “without an agreement to move, the bank holidays should have remained 27th, 28th and 3rd”. The collective grievance was refused by a decision of the respondent of 25 March 2022 (page 277). An appeal followed, which was also refused by a decision of the respondent of 15 June 2022 (page 301). Submissions[48]The parties both provided written and oral submissions for which I am grateful. I do not set them out in detail here. Summary of the respondent’s submissions[49]The respondent’s submissions may, however, reasonably be summarised as follows. 49.1. Judged objectively the respondent and the GMB considered themselves bound by the terms contained in Appendix 3b only. The respondent had Page 11 of 22 exercised its discretion under the Statement Term not to redesignate the bank holidays and that disposed of the claim. 49.2. Further or alternatively, only the Statement Term was apt for incorporation; 49.3. Further or alternatively, even if the Summary Term were incorporated into the contracts of employment of the claimants, the claims would still fail: no payments were properly payable because the Summary Term triggered a requirement for the parties to agree whether or not to redesignate the bank holidays whenever the government decides to redesignate them and agreement had not been reached. The claim remained conditional on events which did not in fact occur and so no wages were “properly payable”. 49.4. At the heart of both parties’ submissions were their respective constructions of the following words in the Summary Term: All Bank Holidays are ‘fixed’ to the calendar day they fall on. In the event that the Government re-designates these, by local agreement with GMB sites will [sic] decide to redesignate or not. If the Government designates additional public holidays in any year, these will not count automatically as Bank Holidays and will be agreed nationally with the NJC. 49.5. The respondent contended that: 49.5.1. “‘fixed’ to the calendar day they fall on” meant fixed to what the respondent described as the conventional day – so 25 December, 26 December and 1 January in the case of the Christmas Day, Boxing Day and New Year’s Day bank holidays; 49.5.2. “in the event that the Government re-designates these” meant in the event that the government identified a “substitute” weekday for the bank holiday in the event that a bank holiday day fell on a weekend day (as described at [44] above); 49.5.3. Consequently, in light of the dates on which the relevant bank holidays fell as set out at [43] above, the Summary Term required the respondent and the GMB to agree whether the bank holidays should remain on what the respondent termed the “conventional day” or should move to the “substitute” weekday. Summary of the claimants’ submissions[50]The claimants’ submissions may reasonably be summarised as follows: Page 12 of 22 50.1. The limited evidence suggested that it was the Summary Term, not the Statement Term, that was what was agreed between the GMB and respondent at the relevant time. This was because: 50.1.1. The index to the NRA at page 77 refers only to Appendix 3 and that is said to be the “Summary of Terms”. There is no reference to Appendix 3a or Appendix 3b; 50.1.2. The formatting of Appendix 3b is different to the “rest of the document”, for example the font is smaller; 50.1.3. Appendix 3b does not appear to set out a record of specifically agreed terms. Rather it is meant to be a working document for the respondent to complete. It is incomplete and unfinished and deals with matters outside the scope of the collective bargaining arrangements between GMB and the respondent; 50.1.4. The grievance outcome and the grievance appeal outcome seemed to reflect an understanding on the part of the decision makers that the terms recorded in Appendix 3a (i.e. the Summary Term) represented what was actually agreed; 50.1.5. The existence of Appendix 3a was “inexplicable” on the respondent’s case; 50.1.6. The Summary Term was more consistent with the rest of the NRA than the Statement Term, in particular with the commitment to establishing local consultation arrangements on changes to pay and working patterns where possible; 50.1.7. Appendix 3b refers to “the NRA signed in 2012” (page 98) which implies that “the text of 3b was settled post signature”. 50.2. Further, the Summary Term was apt for incorporation. This was because: 50.2.1. The correct interpretation of the Summary Term provided certainty for employees about which days would attract the Bank Holiday Enhancements. By contrast, the Statement Term did not. 50.2.2. The lack of particularisation in relation to the process for consulting local representatives did not matter because functional local consultation arrangements clearly existed. Equally, it was common for contracts to be silent about precise rules “such as time limits for reaching agreements on issues”. The fact that the clause could have been “stricter or more detailed” did not mean that as drafted it was not sufficiently clear to be workable in practice. Page 13 of 22 50.3. Further, the question of “conditionality” did not arise. The claim did not remain conditional on events which did not in fact occur because, on the correct construction of the Summary Term, it was clear what payments were due. 50.4. The correct construction of the Summary Term was as follows: 50.4.1. “‘fixed’ to the calendar day they fall on” meant “those days fixed by the government as bank holidays”. What Mr Findley meant by that was that in the event that the government identified a “substitute” weekday for a bank holiday falling on a weekend day (as it did in relation to the days in question), “fixed to the calendar day they fall on” meant fixed to the “substitute” weekdays. 50.4.2. It would be absurd to construe the Summary Term as the respondent did because the “default position” for the respondent’s employees would be out of step with “the actual bank holidays enjoyed by the public in any year”. 50.4.3. Further, the Easter, May and August bank holidays do not fall on the same calendar day every year. The Easter bank holiday is the calendar day fixed by the government in any given year. Consequently, the parties could not have intended “’fixed to the calendar day they fall on” to mean “the bank holidays are always fixed to the same calendar day”. 50.4.4. Bank holidays are a statutory construct and there is no commonsense definition of a bank holiday other than that a bank holiday is the day designated by the government as a bank holiday as set out in Schedule 1 to the Banking and Finance Act 1971. The claimants’ interpretation was consistent with that Act, but the respondent’s was not. 50.4.5. The consequence of this construction of the Summary Term is that “Absent agreement to the contrary between Asda and the GMB, the Claimant submits that a bank holiday is whatever day either statute or the government says it is, and therefore the days which should have attracted enhanced bank holiday pay in the festive period 2021/22 were the 27th and 28th of December and 3rd January”. 50.4.6. However, the claimants accepted (see [7] of their supplementary submissions) that “in the event that the Government redesignates these” refers to situations in which “the government uses the powers in section 1(2) of the Banking and Finance Act 1971 to appoint a day as a bank holiday that would not otherwise be a bank holiday if no proclamation was issued”. Conclusions Page 14 of 22
Conclusions
[51]I follow the structure I have followed in summarising the parties’ submissions in setting out my conclusions, except that I have considered the correct construction of the Summary Term at an earlier stage because it is relevant to the question of incorporation. Whether the parties considered themselves bound by Appendix 3a or Appendix 3b[52]It is not possible to reconcile the Statement Term and the Summary Term. The former gives the respondent a right to “leave [Bank Holidays] as they fall or to redesignate them to other days” in the event that the Government redesignates “any Bank Holiday that falls on a Saturday or Sunday”, and the latter does not. It requires agreement between the respondent and the GMB in relation to the matters it deals with. There is no provision in the NRA which deals with how a conflict between terms contained in different appendices to it will be dealt with.[53]The parties both therefore approached the question for me as being whether, judged objectively, the respondent and the GMB considered themselves bound at the relevant time by the terms within Appendix 3a (the Summary Term) or Appendix 3b (the Statement Term). This reflects the fact that part 4 of the 2014 version of the NRA provides that “the terms and conditions of employment set out in Appendix 3 will have contractual effect” (see [32] above) but does not explain whether the reference to Appendix 3 is a reference to Appendix 3a or to Appendix 3b. It cannot be a reference to both, given the irreconcilable conflict between the Statement Term and the Summary Term.[54]It is necessary to consider whether the respondent and the GMB considered themselves bound by the terms within Appendix 3a or Appendix 3b in order to decide whether it was the Summary Term or the Statement Term which the parties to the contracts of employment (that is the respondent and the claimants) intended to form part of the contracts between them. Given what I have observed at [19] above in relation to the enforceability of collective agreements as between a union (in this case the GMB) and an employer (in this case the respondent), referring to the GMB and the respondent considering themselves “bound” is not a reference to a contractually binding obligation. Rather it is a reference to identifying the Appendix which, at the relevant time, the GMB and respondent agreed contained the terms and conditions which they had agreed elsewhere in the NRA would have contractual effect between the respondent and its employees.[55]As noted at [28] above, both parties also approached this issue, at least by the time of their closing submissions, on the basis that the 2014 version of the NRA contained in the bundle was the one in force at the time relevant for the purposes of this claim and that its contents had been agreed between the GMB and the respondent and I have therefore taken the same approach.[56]I conclude that the parties considered themselves bound by Appendix 3b (the Statement Term) rather than Appendix 3a (the Summary Term) for the following reasons: Page 15 of 22 56.1. Appendix 3a does not purport to set out either final or complete terms and conditions of employment. This is reflected in the way that both the words “Summary” and “proposed” appear at the head of Appendix 3a. It is also reflected in the relative lack of detail. For example, the proposed terms for drivers/shunters run to 4 pages. By contrast, the Transport T&C run to 8 pages. 56.2. Appendix 3b by contrast does set out what appear to be both final and complete terms and conditions of employment for individual employees. There is no suggestion that they are merely “proposed”. Contrary to the submissions of Mr Findley, neither the Transport T&C nor the Warehouse T&C contained in Appendix 3b is an incomplete and unfinished working document. Rather, before being issued to individual employees little needs to be done to them other than the addition of details relevant to the particular employee (name, rate of pay, workplace etc). This is indeed reflected in the fact that the Statement of Terms and Conditions issued to Ms Prazmowska (page 360) is very similar to that contained in Appendix 3b (and, indeed, the term under the heading “Bank and public holidays” is identical to the Statement Term (page 363)). 56.3. I conclude, given the evolving nature of the NRA (as found at [30] above), and in light of the claimants’ acceptance that the 2014 version of the NRA included in the bundle did properly include Appendix 3b, that the contents of Appendix 3b simply reflect the fleshing out through negotiation of the contents of Appendix 3a and that this also explains any inconsistencies between them. Indeed, it explains any such inconsistencies in a satisfactory manner: it would of course have been open to GMB negotiating the terms of the NRA as a principal (not as an agent) to agree terms in Appendix 3b which were inconsistent with the terms included in Appendix 3a (for example, because some of the terms included in Appendix 3a were on further consideration unworkable). In these circumstances, it is inevitable that the parties would at the relevant time have considered themselves bound by Appendix 3b and not Appendix 3a. 56.4. In reaching these conclusions I have taken account of the way in which Ms Tanner and Mr Morris approached the grievance and the grievance appeal. Although it might fairly be said that neither of them analysed in detail how the conflict between the Statement Term and the Summary Term might be resolved, it does not seem to me that either of them “accepted” that the Summary Term (rather than the Statement Term) reflected what had been agreed between the respondent and the GMB. Further, even if they had, this would have been of limited relevance. 56.5. I have also taken account of the various further points made by Mr Findley. In light of the evolving nature of the NRA, I conclude that the fact that at page 73 there is a reference to “Appendix 3 Terms and Conditions Summary” probably simply reflects the contents of the 2012 version of the NRA, given that at page 70 in the index to the 2014 version of the NRA there Page 16 of 22 is a reference to both Appendix 3a and Appendix 3b. Equally, differences in formatting, the existence of Appendix 3a and the fact that Appendix 3b post dated the date on which the NRA was signed are also all explained by its evolving nature. Finally, I do not accept in light of my construction of the Summary Term below that a term requiring agreement in relation to very specific matters was more consistent with the commitment to establishing local consultation arrangements. 56.6. I have also taken into account the very limited evidence before me in relation to what happened in 2016 and 2020 (when in each case one or more of the Christmas/New Year bank holidays fell on a weekend day). I conclude that the lack of any reference to an agreement in the relevant LJC minutes demonstrates that there were no significant discussions in relation to the issue. If it is the case - as it may well be - that the respondent did not treat one or more of 25 December, 26 December or 1 January as a bank holiday but rather moved the bank holiday in question to a weekday, that is as consistent with it exercising its discretion as it is with an agreement being reached with local representatives of the GMB.[57]In light of the conclusion that the GMB and respondent considered themselves bound by the terms contained within Appendix 3b rather than those in Appendix 3a, no “Bank Holiday Enhancements” were properly payable to the claimants for any hours worked on 27 and 28 December 2021 and/or 3 January 2022. This is because the relevant term in the claimants’ contracts of employment (whether incorporated from the NRA or actually included) was the Statement Term (not the Summary Term). Under the Statement Term, the respondent was entitled to exercise its discretion to leave the bank holidays as they fell (i.e. on 25 and 26 December 2021 and 1 January 2022). I conclude that this is what it did. As such no Bank Holiday Enhancements were payable for 27 and 28 December 2021 and/or 3 January 2022 because these days were not, under the claimants’ contracts of employment, to be treated as “Bank Holidays”.[58]This conclusion in fact disposes of the preliminary issue identified in the respondent’s favour with the result that the claims fail and are dismissed. The correct construction of the Summary Term[59]I go on to set out my conclusions in relation to this issue because it is to a limited extent relevant to my conclusions above and, also, in case I am wrong in those conclusions, with the result that in fact at the relevant time the parties considered themselves bound by the Summary Term. The question for me of course is what the parties would have intended the Summary Term to mean.[60]I conclude that it is commonly understood that in England the bank holidays each year are New Year’s Day, Good Friday, Easter Monday, the Early May bank holiday, the Spring bank holiday, the late Summer bank holiday, Christmas Day and Boxing Day. Further, I conclude that it is commonly understood that in principle Page 17 of 22 New Year’s Day is 1 January, the Early May bank holiday is the first Monday in May, the Spring bank holiday is the last Monday in May, the late Summer bank holiday is the last Monday in August, Christmas Day is 25 December and Boxing Day is 26 December. So far as Good Friday and Easter Monday are concerned, it is commonly understood that these will fall either side of the Easter weekend, the dates of which vary from year to year.[61]Further, it is commonly understood that the only bank holidays which may fall on a weekend day are New Year’s Day, Christmas Day and Boxing Day and that, when this happens, they will be moved to a substitute weekday.[62]I have set out this common understanding of what bank holidays are, when they fall, and when they will be moved because it is, I conclude, a common understanding that would have been held by those negotiating the Summary Term and, also, by the claimants.[63]I also note at this point that there is no statutory right for an employee employed in a business such as that of the respondent to take as holiday a bank holiday. The minimum amount of annual leave any employee is entitled to is of course determined by the Working Time Regulations 1998 (although they may have greater contractual entitlements). However, whether an employee in a business such as that of the respondent is entitled to take as holiday a bank holiday (and how much they are entitled to be paid if they work on a bank holiday) is a matter for agreement between the employer and employee. I conclude that the parties would have known this when negotiating the Summary Term.[64]I conclude that the parties intended the Summary Term to bear the meaning set out in the respondent’s submissions summarised at [49.5] above. This is for the following reasons: 64.1. Against the commonly understood factual and legal backdrop that I have set out above, I conclude that the natural meaning of “ ‘fixed’ to the calendar day they fall on” is that the bank holiday is ‘fixed’ to the day when it is commonly understood it will fall (as set out in [60] above) – what the respondent refers to as the “conventional day”. The reality is of course that it is only the dates of Easter which change significantly from year to year and so the uncertainty which the claimants suggest might arise from such a construction does not in fact arise at all. 64.2. Consequently, the natural meaning of “in the event that the Government re-designates these…” is in the event that the Government “substitutes” (to adopt the language of the .gov.uk website) a weekday to become a bank holiday because the commonly understood or conventional date of the bank holiday in question falls on a weekend. This will in practice only be a consideration in respect of New Year’s Day, Christmas Day and Boxing Day because the other five bank holidays each year all fall on a Monday or Friday. The respondent and GMB would have been well aware of this when negotiating the details of the Summary Term. Page 18 of 22 64.3. Consequently, the natural meaning of the Summary Term so far as the bank holidays in question in this case are concerned is that the GMB and the respondent were required to agree whether the bank holidays remained on their commonly understood or “conventional” days of 25 and 26 December and 1 January or were to be “re-designated” to the “substitute” dates of 27 and 28 December and 3 January. The natural meaning of the Summary Term does not set out what will occur in the absence of such agreement. 64.4. By contrast, the meaning contended for by the claimants requires a convoluted and complicated reading of the words in question which is far from their natural meaning. According to the claimants “fixed to the calendar day they fall on” means “those days fixed by the government as bank holidays”. In this case that means 27 December (fixed by section 1(1) and schedule 1 of the Banking and Financial Dealings Act 1971) and 28 December and 3 January (fixed by section 1(2) and schedule 1 of the Banking and Financial Dealings Act 1971 and a Royal Proclamation published in The Gazette on 23 July 2021). 64.5. The claimants accept ([7] of their supplemental submissions) that the words at the beginning of the second sentence of the Summary Term (“In the event that the Government redesignates these…”) “must be a reference to situations in which the government uses the power in section 1(2) of the act to issue a Royal proclamation to appoint a day as a bank holiday that would not otherwise be a bank holiday if no proclamation was issued”. However, if the claimants’ construction of “ ‘fixed’ to the calendar day they fall on” is correct, their construction of “in the event that the Government re-designates these” make little if any sense because, on their construction, Christmas Day and New Year’s Day have already been “re-designated” when the they were “’fixed’ to the calendar day they fall on” by the first sentence of the Summary Term. No explanation has been provided of why or when a second redesignation might take place. 64.6. Further, in light of the legal position in relation to bank holidays as noted at [63] above, there is nothing surprising or “absurd” about the respondent having the right in respect of its own employees to identify which days will be treated as Bank Holidays and so attract the “bank holiday enhancements”, particularly when its business in principle operates 7 days a week. Whether the Summary Term contained in appendix 3a is apt for incorporation[65]Strictly speaking the question of whether the Summary Term contained in Appendix 3a is apt for incorporation does not arise because the claim fails for the reasons set out above as a result of my conclusion that the GMB and the respondent intended themselves to be bound by the terms contained in Appendix 3b, and did not intend to be bound by the terms contained in Appendix 3a. However, I have nevertheless considered the issue in case I am wrong about that. Page 19 of 22[66]I have concluded that the Summary Term is not apt for incorporation. My reasons for this briefly are as follows: 66.1. I accept that that there are factors which point to the parties having intended the Summary Term to be legally enforceable by individual employees – in particular, it clearly relates to the holiday entitlements of individual employees. 66.2. However, the correct construction of the Summary Term as set out above would require the respondent and the GMB to reach local agreement on whether to move bank holidays which the government had moved to a “substitute” day or to leave them on what I have referred to above as the commonly understood or conventional day. I conclude that such a provision is unworkable (and so the parties would not have intended it to be a term of their contract) because:(1) it might not on any occasion be possible for agreement to be reached;(2) there is no provision which sets out what happens in the absence of agreement. I conclude that contrary to the submission of the claimants it is not possible to imply a term as to what should happen in the absence of agreement in light of the drafting of the Summary Term. 66.3. Further and separately, the GMB and the respondent could have stated that in the absence of agreement the bank holiday would move to the “substitute” day; alternatively, they could have stated that in the absence of agreement the bank holiday would remain on the commonly understood or conventional day. However, they did not do either of these things and I have concluded that there is no basis to imply a term which points in one direction or the other. It is therefore not the case, as Mr Findlay submitted, that “the term simply creates certainty for employees about which days will attract enhanced bank holiday payments in the event the fixed day for bank holiday is moved by the government”. I conclude that the failure to include a provision dealing with what happens in the absence of agreement results in the term being uncertain, vague and, arguably, aspirational, and so not apt for incorporation. The claimants would not by any particular date know to which dates the Bank Holiday Enhancements would apply. 66.4. Further and separately, the fact that the Summary Term is contained in an Appendix which describes itself as a “Summary of Terms and Conditions” and refers to “Proposed National Terms & Conditions” (page 89) again suggest that it is not apt for incorporation because it appears to be both lacking in detail (“Summary”) and subject to further negotiation (“Proposed”). The parties would not have intended such a term to be part of their contract. 66.5. Further and separately, the Summary Term conflicts with the express terms of the contracts of those claimants which postdate the NRA. See, for example, the statement of terms and conditions of Ms Prazmowska (page 360) which explicitly includes the Statement Term. Page 20 of 22 The question of conditionality[67]Again, the question of conditionality does not, strictly speaking, arise. However, I have nevertheless considered this issue in case I am wrong in my conclusions in relation to the GMB and the respondent considering themselves bound by the terms contained within Appendix 3b only, and in relation to the question of incorporation.[68]In light of my conclusions in relation to the correct construction of the Summary Term, no Bank Holiday Enhancements would have been properly payable to the claimants for any hours worked on 27 and 28 December 2021 and/or 3 January 2022 unless and until the GMB and the respondent had agreed to redesignate the bank holidays falling on 25 and 26 December 2021 and 1 January 2022 to those dates. In fact, no such agreement was ever reached. Indeed, if such an agreement had been reached, this litigation would not have taken place. Equally, the claimants cannot say that such agreement would have definitely been reached if the parties had at the time agreed (which they did not) that it was the Summary Term rather than the Statement Term which applied.[69]Consequently, at no point have the Bank Holiday Enhancements become properly payable. Overall conclusion[70]No Bank Holiday Enhancements (as set out in Appendix 3a at the bottom of page 94 and the top of page 95 of the bundle) were properly payable to the claimants for any hours worked on 27 and 28 December 2021 and/or 3 January 2022. Consequently, in light of the issues agreed at the beginning of the Hearing, the claims of the claimants fail and are dismissed.