From: Jordan English
<jordan.english@sjc.ox.ac.uk>
Sent: Thursday 12 September 2024
12:17
To: obligations@uwo.ca
Cc: Alan Bogg
Subject: Tesco Stores Ltd v Union
of Shop, Distributive and Allied Workers [2024] UKSC 28
Dear all,
Members might be interested in the decision today of
the UKSC in Tesco
Stores Ltd v Union of Shop, Distributive and Allied Workers [2024] UKSC 28.
The case concerns Tesco workers who were induced to
relocate to other sites in 2007 for the promise of retained pay . Basically,
any difference in value between their old remuneration and their new
remuneration was to be protected. The express retained pay term provided that
the retained pay would be a permanent feature of an the employees
contractual eligibility. The term was part of a collective agreement
incorporated into the employees contract of employment (either expressly or by
custom).
Suffice to say, in 2021 Tesco wanted to phase out the
retained pay obligation. As a carrot , it offered an advance payment of 18
months of retained pay in return for employees agreeing to the cessation of
their retained pay rights. The stick was that if did not agree, the contracts
would be terminated on notice pursuant to an express contractual term and the
dismissed employees would then be re-engaged under a new contract without the
retained pay benefit (a strategy known as fire and rehire ).
Allowing the appeal from the Court of Appeal, Lord
Burrows and Lady Simler (Lord Lloyd-Jones agreeing; Lord Leggatt and Lord Reed
concurring but writing separately) held:
The judgment obviously will be of interest to labour
lawyers but for doctrinal private lawyers it is also worth reading. It contains
a discussion about the approach to contractual interpretation and the
implication of terms by fact (see at [32] [57] per Burrows and Simler and
[98] [106] per Leggatt) and more interestingly (for me at least), a good
discussion about injunctions/indirect specific performance and whether specific
performance should be ordered of a contact of employment (for which the general
rule is no , but it was allowed here where there was no breakdown in trust and
confidence). This discussion is at [58] [84].
For Braganza enthusiasts, there is also a
little dialogue between Lord Leggatt and Lord Reed on this (see at [115] [120]
and [149]).
Finally, the case which although involving a
fundamental labour law dispute is, at bottom, a contract case is a good
illustration of a point Alan Bogg has been making for some time about the role
of doctrinal private law and labour law. In his words:
It
is now time for a renaissance of lawyer s law in labour law given the
relative success of strategic litigation. Historically, doctrinal scholarship in
labour law was viewed with a degree of suspicion . The underlying message of
this article rejects this fashionable view of serious legal scholarship.
Doctrinal analysis is indispensable to the scholarly enterprise in labour law.
It should take its rightful place alongside socio-legal, critical, comparative,
and philosophical modes of enquiry.
(A.
Bogg, Can We Trust the Courts in Labour Law? Stranded Between Frivolity and
Despair (2022) 38 Int.J.Comp.L.L.I.R. 103).
All best,
Jordan
Jordan
English
Supernumerary
Teaching Fellow in Law
St
John s College, Oxford OX1 3JP
T: +44
(0)1865 270862