A dispute arose when the Claimants became aware that, unlike office holders, they were not paid night allowances. They raised claims in respect of unauthorised deductions from wages contrary to s13 of the ERA 1996. The central issue for the Tribunal was whether night allowances were properly payable to the Claimants in terms of the contracts of their employment. That issue was decided in favour of the Claimants, the ET saying that a reasonable person would have understood from the written contractual documents that the allowances for night working would have been payable to the claimants. The ET also did not consider that mora, taciturnity and acquiescence applied - although the claim to the ET was not brought for a significant period of time after the first deduction, action was being taken about the matter. There was a complaint to the Respondent, union activity and ultimately a collective grievance. The Respondent appealed.

The EAT allowd the appeal. The Tribunal had erred in concluding that the reasonable person test applied in circumstances where the claimants were unaware of the term they subsequently claimed was incorporated. The appeal was dismissed in relation to the ground relying on mora taciturnity and acquiescence.