Leeds, England 1 February 2011: The Sheffield Employment Tribunal last week found in favour of 31 long-serving bus drivers whose employer had failed to make an agreed ‘custom and practice’ Christmas period payment, where the company claimed there was no written agreement, in a case described as going “to the heart of trade union principles and why people join unions.”
The drivers, each of whom had worked for First South Yorkshire Buses since at least 1988, are members of Unite the union. Since 1990 and at the union’s written notification, the company had made an annual ‘spreadover’ payment to these drivers for the split shift roster they are required to work over the week between Christmas Day and New Years Day from Sheffield’s Olive Grove depot.
The spreadover payment is made to compensate the driver for working a longer weekday when there is an unpaid break of between 3 and 4 hours in the middle of the duty. It would ordinarily not apply to weekend duties and although the company referred to the Christmas – New Year weekdays as ‘Saturday’ services, they had been making the payment to the drivers for that one week. The spreadover payment would be payable on top of duty paid hours.
In 2008 the company refused to make the payment and after a meeting in February 2009 Unite lodged a claim on behalf of 12 drivers to the Employment Tribunal, which the company settled prior to hearing, agreeing in August 2009 to pay £30 to each driver. When the union wrote regarding the spreadover payment for Christmas 2009, the company refused, arguing that an agreement had been reached in February 2009. Unite pursued a claim in the Sheffield Employment Tribunal of unauthorised deductions from pay.
First South Yorkshire Buses’ lawyers contested in the Tribunal that there was no written agreement to make spreadover payments to the drivers over the Christmas week, and that the company retained the right to decline the payment. They further argued that a minute of the meeting in February 2009 showed the Operations Director had said he would not make the payment in future years and that this constituted a clear agreement.
In finding for the drivers, the Tribunal found that it was ‘custom and practice’ to make the spreadover payment because it had been paid consistently for up to 20 years and was therefore a reasonably expected payment which constituted implied terms and conditions. It was further found that the union’s annual communications were not a ‘request’ but a notification or reminder for the payment to be made.
The Tribunal also found that the quoted minute from the February 2009 meeting constituted a response from the company, and that no agreement was reached between the parties to terminate the spreadover payment for future years.
The total amount of compensation to be awarded to the drivers will be decided at a remedy hearing in March.
Speaking earlier today of the case, Baldeep Thiara of Morrish Solicitors acting for the drivers said “the Tribunal had to decide if the claimants were contractually entitled to receive a “spreadover payment” over the Christmas/New Year period 2009/2010 and if they were then was there an unlawful deduction by the company for failing to make this payment.
“This is one of those unusual cases. Not a technical case on the law or a high value case, but a case which goes to the heart of trade union principles and why people are in Unions. We had a situation where the drivers who were entitled to this payment were long serving i.e all employed before 1988. It was a longstanding agreement / arrangement made between the company and the union that they should not lose pay when the rota’s are changed over the Xmas period. This agreement had been in place for over 20 years.
“In seeking to break that agreement, the company failed to see the significance of this payment. It was a payment which would have paid for a grandchild’s present, a Christmas dinner etc. That is why it was important, in my view, to bring this case. It is a point of law, but it is also a point of principle. At Morrish Solicitors, we always fight for the little man. The whole cost of making these payments was nothing to the company if they balanced that against the years of loyal service these drivers had given.”
For further information, please contact Vanessa Charters at Morrish Solicitors on 0113 297 9844.