Claimant v Tesco Stores Limited
Outcome
Individual claims
The tribunal found that the 2023 collective agreement was expressly incorporated into the claimant's contract through clear wording stating 'There is a collective/partnership agreement with USDAW in place which affects your employment'. The collective agreement terms concerning unsociable hours payments were apt for incorporation as they went to the heart of the employment relationship. The claimant was therefore not entitled to night shift premium and there was no unlawful deduction of wages.
Facts
The claimant worked for DHL from 2007 to 2017 at a Tesco distribution centre in Daventry, transferring to Tesco under TUPE in October 2017. His DHL contract expressly referred to a collective agreement with USDAW. In March 2023, a new collective agreement was negotiated which provided that DHL TUPE transferees would not receive unsociable hours premium for night shift work, unlike other employees who received 25-33.33% uplift. When the claimant moved to night shift in May 2024, he claimed he should receive the premium. He was offered the opportunity to change to standard Tesco terms (with 25% night premium) but refused, wanting to retain other advantageous TUPE terms.
Decision
The tribunal found that the wording in the claimant's DHL contract expressly incorporated the collective agreement with USDAW into his terms and conditions. This incorporation continued after the TUPE transfer to Tesco. The 2023 renegotiated collective agreement was apt for incorporation as it concerned the employment relationship. TUPE Regulation 4(5B) permitted the variation as it occurred more than one year after transfer. The claimant was not entitled to night shift premium and his unlawful deduction of wages claim failed.
Practical note
Express incorporation clauses in contracts referring to collective agreements will bind employees to subsequent variations negotiated by the union, particularly where TUPE Regulation 4(5B) applies to permit variations occurring more than one year after transfer, even if some terms are less favourable than those for non-TUPE employees.
Legal authorities cited
Statutes
Case details
- Case number
- 6012250/2024
- Decision date
- 14 May 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- retail
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- warehouse worker
- Service
- 18 years
Claimant representation
- Represented
- No