In this case the appellant employer appealed against a decision of the EAT that an Employment Tribunal had been wrong to find that enhanced redundancy payments had not been paid to their employees as a matter of custom and practice. The employees in this case were made redundant two years after a TUPE transfer. They claimed they were contractually entitled to enhanced redundancy payments of twice the statutory amount, plus a lump sum of £600, under a formal redundancy scheme that had been operated for many years. The employer claimed that the payments had been made under a company policy rather than a contractual obligation, and that the policy had not been communicated to the employees. The claimants dropped a claim in relation to an express right to the enhancement and argued custom and practice.

The Court of Appeal upheld the decision of the EAT in this case – the case was remitted to a fresh tribunal after the EAT and the Court of Appeal found the original Tribunal had failed to find that enhanced payments had been paid on seven or more previous occasions. Underhill LJ, giving the lead judgement, set out a non-comprehensive list of factors that might be relevant when considering whether employees should reasonably understand that an enhanced redundancy benefit was conferred as of right: (a) On how many occasions, and over how long a period, the benefits in question have been paid. (b) Whether the benefits are always the same. (c) The extent to which the enhanced benefits are publicised generally. (d) How the terms are described. (e) What is said in the express contract? (f) Equivocalness. http://bit.ly/16wu6i6