Terms and Conditions of Employment in UK Law

It seems to me, first, that the language of the subsection is clear and unambiguous. The concept of common terms and conditions of employment observed generally at different establishments necessarily contemplates terms and conditions applicable to a wide range of employees whose individual terms will vary greatly inter se. On the construction of the subsection adopted by the majority below the phrase "observed either generally or for employees of the relevant classes" is given no content.

So long as industrial tribunals direct themselves correctly in law to make the appropriate broad comparison, it will always be a question of fact for them, in any particular case, to decide whether, as between two different establishments, "common terms and conditions of employment are observed either generally or for employees of the relevant classes."

It was suggested that those words related only to the contractual terms and editions. Some of us said as much in Cory Lighterage v. TGWU (1973, 1 WLR, 814 at 821). But that, I think, would be too limited. Terms and conditions of employment may include not only the contractual terms and conditions but those terms which are understood and applied by the parties in practice, or habitually, or by common consent, without ever being incorpated into the contract.

In the fourth place, it is not the function of the "same employment" test to establish comparability between the jobs done. That comparability is established by the "like work", "work rated as equivalent" and "work of equal value" tests. Its function is to establish the terms and conditions with which the comparison is to be made.