Case of the Week
Another Friday is upon us which means it is time for another dose of case law. Last week’s update concerned sex discrimination and legal costs. This week we have two cases for you, there is no special reason for this bumper edition other than there is a dearth of HR applicable cases so two lesser cases will have to suffice.
Our first case has similar facts to a case we covered in June which concerned annual leave entitlement in the contract of employment following a trade union collective agreement. In that case it was held that a collective agreement did not form part of a contract of employment because it was poorly drafted and did not expressly state what it applied to.
The question in this case is:
Can an employee reject changes to the contract of employment that are negotiated by collective agreement?
Ms Egbayelo, the Claimant, was a Personal Shopper for Ocado, the Respondent. The Claimant had worked for the Respondent for seven years. During her first year of employment, the Respondent entered into collective bargaining agreement with the trade union USDAW to negotiate terms, including pay, hours and holiday.
The Claimant received annual pay rises and was notified that this contractual change was governed by the collective bargaining agreement. In the latest collective agreement, the Claimant was notified of a pay rise and also a change in holiday entitlement which deducted the Claimant’s entitlement but further increased her pay.
The Claimant accepted the pay increase but wrote to the Respondent to reject the change to annual leave entitlement. It was the Claimant’s belief that the collective agreement did not apply to annual leave. The Claimant issued an ET claim seeking a declaration of what her contractual terms were.
The ET rejected the claim, it held that the collective agreement had formed part of the Claimant’s contract of employment for several years and she had accepted this agreement when each annual pay rise was announced. Therefore, the collective agreement applied as the Claimant could not cherry pick which parts of the collective agreement applied and only incorporate preferable terms.
The Claimant appealed and the EAT rejected the appeal. The EAT held that the Claimant had accepted the collective agreement via her conduct through the several pay rises she had received and the ET was right to hold the Claimant could not cherry pick which parts of the collective agreement applied.
The takeaway point:
In this case, no, an employee cannot reject changes incorporated by a collective agreement. In this case the Claimant had accepted the agreement via her conduct over several years and, in any event, the agreement was well drafted and notified employees of changes coming into effect.
This differed from our previous case on collective agreements where the holiday clause did not take effect. However, in that case the clause was poorly drafted and did not notify employees of whether it applied or not. As always, the drafting is key.