Mr Jones (solicitor) For the v Mr Maratos (consultant) — 2019

After the transfer of the golf club business from Cheshire East Council to the respondent in 2011, the claimant's original written particulars contained a sickness absence term giving one month's full pay and, after four months' service, two months' half pay in the first year, rising to six months' full pay and six months' half pay after five years' service. In February 2012 the respondent issued the `Malkins contract`, which contained a less favourable sick-pay clause. The tribunal found that the attempted variation was overwhelmingly likely to have been introduced because of the transfer, only about 4.5 months after it, and there was no evidence of any economic, technical or organisational reason entailing changes in the workforce.

Applying regulation 4 of TUPE 2006 and the principle in Daddy's Dance Hall, the tribunal held that the claimant's signature on the 2012 contract did not make the variation effective. It also rejected the respondent's limitation arguments, holding that the written-particulars claim and the unlawful deduction claim were brought within the statutory time limits. The tribunal therefore substituted the Cheshire East sickness clause into the respondent's particulars under section 12 ERA 1996.

Because the claimant should have been paid sick pay under the preserved Cheshire East term, the tribunal declared an unlawful deduction from wages of £4,892.45 and ordered payment by 23 December 2019. The parties had accepted that a £1,360 goodwill payment would be set off against any sick-pay sum, but the order remained for £4,892.45. The tribunal also considered section 38 Employment Act 2002 and declined any additional award, finding exceptional circumstances made an uplift unjust and inequitable in light of the history of the transfer and the passage of time.