Strathclyde Joint Police Board Sub Nom v Scottish Police Authority

Where a collective agreement is incorporated into an employment contract, a term unknown to one party at contracting cannot form part of the shared factual background used to construe the contract. Clear language must instead be given its proper effect.

A clause giving an employer a choice between separate allowances and an inclusive salary creates two equally valid alternatives. It does not establish a default entitlement to allowances. The tribunal must determine, on the evidence, which alternative was incorporated into the individual contract.

Mora, taciturnity and acquiescence does not bar a timeous statutory wages claim where the statute provides its own time limits. A distinct plea of delay and affirmation must be properly advanced.

Seven customer support representatives brought complaints of unauthorised deductions from wages under section 13 of the Employment Rights Act 1996. They worked night shifts but received no night-working allowances.

The Employment Tribunal held that a collectively agreed clause incorporated into their contracts entitled them to the allowances. It rejected the employer's plea of mora, taciturnity and acquiescence. The Tribunal confirmed its decision on reconsideration on 4 May 2017.

The employer appealed from the Tribunal's decision of 16 February 2017. The central issues were whether the contractual clause created a default entitlement to allowances, and whether the employees' delay barred their statutory claims.

1. Appeal allowed in part and remitted. The Tribunal erred in its construction of clause 41.1. The claimants did not know the clause's detailed terms when contracting. The Tribunal therefore could not apply the reasonable-person exercise by treating that clause as part of factual material available to both parties.

2. Applying Arnold v Britton, contractual interpretation may take account only of facts and circumstances known, or reasonably available, to both parties when the contract was made. The fact that clause 41.1 was incorporated did not prevent its clear language from operating as a contractual term. It did, however, prevent the Tribunal from relying on the claimants' supposed understanding of a term of which they were unaware.

3. Clause 41.1 offered two equally valid contractual alternatives: separate appropriate allowances, including night-working allowances, or an inclusive salary taking all features of the post into account. “Alternatively” did not create an exception to a default entitlement. The Tribunal had wrongly elevated the allowances alternative into a term which the employer had to disapply. It had to decide, on the evidence already led, which alternative was incorporated into these contracts.

4. The appeal failed on mora, taciturnity and acquiescence. That Scots-law plea is not apposite where a statute fixes the period within which a remedy may be sought and the claim is timeous. Delay and affirmation may constitute another form of personal bar, but it is not the same plea. The employer neither pleaded nor sought to amend to plead delay and affirmation. It would have been unfair to recast its case in that way against unrepresented claimants. The Tribunal also had material supporting its finding that the employees had not affirmed the alleged contractual position.

5. The case was remitted to the same Tribunal. It was to determine, without further evidence, which clause 41.1 alternative applied. The claimants, having declined to give evidence, could not require a change to that position.

• Employment Appeal Tribunal: Allowed the appeal on contractual construction, dismissed the appeal on mora, taciturnity and acquiescence, and remitted the construction issue to the same Employment Tribunal.
• Employment Tribunal: On 16 February 2017, upheld the claims for night-working allowances under section 13 of the Employment Rights Act 1996 and rejected the employer's plea of mora, taciturnity and acquiescence. It confirmed that decision on reconsideration on 4 May 2017.