Campbell v British Airways Plc

An Employment Tribunal judgment substantially complies with Rule 62(5) where, read as a whole, it identifies enough of the material evidence and reasoning to show the parties why the claim succeeded or failed. A defective structure, including a conflation of evidence and findings, does not itself require remittal.

In construing contractual provisions, the tribunal must take an objective approach. It may consider the document’s purpose and the relevant factual background, but not parties’ subjective intentions. A claim for unlawful deduction of wages fails where the asserted pay entitlement was no longer an operative contractual term.

The claimant, employed by British Airways, was promoted in 2015 from Material Supplier to Logistics Co-ordinator. He claimed a Personal Differential under the Glasgow Forum Agreement, alleging an unlawful deduction from wages under section 13 of the Employment Rights Act 1996.

The Employment Tribunal sitting at Glasgow dismissed the claim on 12 April 2017. It concluded that the Personal Differential was a transitional pay-protection provision which had ceased to operate in 2008, and that the claimant had no contractual entitlement to it.

The claimant appealed, contending that the Tribunal’s reasons failed to comply with Rule 62(5) and that it had wrongly construed the collective agreement.

1. Appeal dismissed. Although the Employment Tribunal’s judgment was poorly structured, it gave just sufficient reasons. It made clear that the claimant failed because he had no contractual entitlement to the Personal Differential.

2. Rule 62(5) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires identification of the issues, findings, relevant law and its application. The rule is satisfied in substance if those components can be identified by reading the judgment as a whole. Here, the Tribunal should have distinguished accepted findings from a narration of witness evidence and should have expressly stated the issues. Nevertheless, its deliberation section identified the material conclusions on which it relied.

3. The decisive finding was that the Personal Differential was transitional pay protection and had ceased to be operative in 2008. Once that provision was no longer incorporated into the claimant’s 2015 contract, it was unnecessary to decide whether its wording would otherwise have covered a person promoted in the claimant’s position.

4. In any event, the Tribunal made no material error in its approach to construction. It was for the Tribunal, rather than the witnesses, to construe the Glasgow Forum Agreement objectively. It could have regard to its purpose, the factual background and the knowledge available when it was made. The Tribunal’s acceptance of evidence from those involved in the negotiations was properly understood as assistance in that objective exercise, rather than reliance on subjective intention.

5. The Tribunal’s failure expressly to decide the respondent’s proposed amendment concerning the 2015 offer letter had no material effect on the appeal. The letter was treated as significant, not determinative, and the respondent had not cross-appealed.

• Employment Appeal Tribunal: Appeal dismissed: [2018] UKEAT 0015_17_1311.
• Employment Tribunal, Glasgow: Claim for unlawful deduction from wages dismissed in a judgment dated 12 April 2017.