Mr A Addison Mr G Halliday v PossAbilities CIC — 2021

The claimants worked as support workers for the respondent, a social care provider. Their employment had transferred from Calderdale Council to Horton Housing and then to the respondent, and the parties agreed those were relevant transfers under TUPE so that the claimants' transferred terms and conditions were protected. During the hearing, the Tribunal allowed amendments to add a section 23 ERA claim for alleged underpayment during sleeping-in duties and section 11 ERA claims about Bank Holiday time off in lieu. Various other aspects of the original claims were withdrawn and dismissed on withdrawal.

On the sleeping-in duty issue, the Tribunal construed the Green Book wording as providing payment for call-outs beyond 30 minutes, not for every disturbance to sleep from whatever source. It rejected the argument that the earlier payment practice had become a contractual right by custom and practice, finding that the initial payments were more likely to have reflected a misunderstanding of the Green Book and that there was no evidence of a local agreement reducing the rate to normal pay only. The claim nevertheless failed because the Tribunal was not presented with evidence establishing the dates of the alleged unauthorised deductions, the dates of the call-outs, or the length of time spent on them.

On Bank Holidays, the Tribunal accepted the respondent's construction of the Green Book wording and held that a "full day" of time off in lieu meant one normal working day for the employee concerned, not the same number of hours as were worked on the Bank Holiday. It rejected the claimants' reliance on later summaries and past practice as proof of a contractual entitlement to hour-for-hour time off. The Tribunal therefore amended the written particulars to include wording stating that if the claimants were required to work on a Bank Holiday, they were entitled to time off in lieu later, with half a normal working day where less than half the normal daily hours were worked and one normal working day where more than half were worked.