Unite the Union and another (Respondents) v Tyne and Wear Passenger Transport Executive T/A Nexus (Appellant)

Awaiting judgment

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Case summary

Case ID

UKSC/2022/0180

Parties

Appellant(s)

Tyne and Wear Passenger Transport Executive T/A Nexus

Respondent(s)

National Union of Rail

Maritime and Transport Workers

Unite the Union

Issue

Did the Court of Appeal err in:holding that rectification is not available for a collective agreement which is not intended to be a legally enforceable contract; refusing to allow the claim to be amended; holding that an employment tribunal has power to reject a complaint on the grounds of rectification; holding that it would be an abuse of process to raise rectification in respect of past complaints and/or that a claim for rectification was estopped; and its holding on privity of interest.

Facts

Tyne and Wear Passenger Transport Executive, the Appellant, trades as Nexus. It operates the Tyne and Wear Metro (the "Metro"). The Respondents are National Union Rail, Maritime and Transport Workers (the "RMT") and Unite the Union ("Unite") (together the "Unions").These proceedings are a sequel to an earlier claim brought against Nexus by a group of employees (the "Anderson proceedings"). The background to the Anderson proceedings was that a collective agreement had been reached between the Unions and Nexus. In the letter of agreement (the "Letter Agreement") Nexus agreed to consolidate a pre-existing entitlement referred to (inaccurately) as a "productivity bonus" into the basic pay of the employees. In the Anderson proceedings the employees successfully argued that on the proper construction of the Letter Agreement their shift allowances were supposed to be calculated as a percentage uplift of their basic salary including the productivity bonus (the "enhanced basis"). As Nexus had been calculating shift allowances on an unenhanced basis, the employees' shift allowances had been underpaid.As a result of the Anderson proceedings, Nexus brought a claim to rectify the Letter Agreement for common mistake or alternatively unilateral mistake. A trial was held to determine preliminary matters. The Unions argued Nexus is estopped from pursuing its rectification claim since Nexus did not advance the mistake case in the Anderson proceedings. In support of the Unions' application for strike out or alternatively summary judgment, the Unions argued that the rectification claim was an abuse of process, barred by delay, and that the court had no power to rectify the Letter Agreement as it was a collective agreement which was not legally binding or enforceable.The High Court rejected the Unions' arguments and dismissed the strike-out and summary judgment applications. On appeal, the Court of Appeal ruled in favour of the Unions. Nexus now seeks permission to appeal to the Supreme Court.