Implied terms

Case 1: The facts

Mr Fisher, who received a basic salary plus an unsocial-hours allowance, was promoted to a managerial post. It was custom and practice for anyone so promoted to get a minimum 5% pay rise. Although Fisher received a 5% increase on his basic salary, this did not take his unsocial-hours payment into account - so he was on less money after his promotion than before it. He argued that the unsocial-hours payment should have been taken into account as part of his salary.

The ruling

The Employment Appeal Tribunal (EAT) held that, although the result may be unfortunate, it was clear that the 5% increase established by custom and practice related to basic pay only. The unsocial-hours payment had always been referred to as a separate entitlement and not part of the basic pay, and there had been a deliberate decision during negotiations to keep them separate.

London Underground v Fisher UKEAT/0104/04