Amy Rogers acts in successful appeal in Tesco v USDAW


The Court of Appeal has, today, unanimously allowed Tesco’s appeal in Tesco v Union of Shop, Distributive and Allied Workers [2022] EWCA Civ 978.

Amy Rogers acted for Tesco, led by Anthony de Garr Robinson KC of One Essex Court, and instructed by Rachel Lidgate, Andrew Taggart, Peter Frost and Alan Watts of Herbert Smith Freehills LLP.

The High Court (Ellenbogen J) had granted a permanent injunction to prevent Tesco dismissing and re-engaging employees to remove a particular pay supplement known as “retained pay”. Discharging that injunction, the Court:

  1. held that the relevant pay terms permitted Tesco to give notice in the ordinary way, and that employees’ right to “retained pay” would last only as long as the contract in which it was contained;
  1. declined to imply any term preventing Tesco exercising that right to give notice so as to remove “retained pay”. The Court rejected the analogy drawn by the Judge below with Aspden v Webbs Poultry and Meat Group (Holdings) Ltd [1996] IRLR 521 and other cases relating to permanent health insurance;
  1. rejected USDAW’s alternative case in estoppel; and
  1. held that the Judge should not have issued any injunction in any event. The remedy for a wrongful dismissal at common law is almost invariably financial. Further, an injunction cannot be granted unless it is clear beyond argument what the Defendant can and cannot do: which was not the position here.

The judgment is available here.