Mr. A. Kersse v Epsom and St Helier University Hospitals NHS Trust — 2025

Mr Kersse began work for Epsom and St. Helier University Hospitals NHS Trust as a shuttlebus driver on 29 May 2021 following a TUPE transfer. He was paid £12.27 per hour for 63.4 hours each week, comprising 42 worked hours and 21.4 hours of downtime. The tribunal found that the Trust had continued these payments because of an administrative oversight and was not seeking to recover the resulting overpayments.

In May 2023, the Trust introduced a new pay model under which eligible staff received £13.75 per hour. It did not apply that rate to Mr Kersse because his pay for hours actually worked equated to £18.52 per hour. A letter stating that his rate had risen to £13.75 was sent to him by mistake on 6 June 2023 and corrected that day. The Trust asked him several times for evidence of a contractual right to payment for downtime, but he provided none. His pre-transfer contract stated a basic working week of 37.5 hours and did not mention downtime.

Applying section 13 of the Employment Rights Act 1996 and the general rules of contract governing what was properly payable, the tribunal held that Mr Kersse bore the burden of proving the claimed contractual entitlement. Although it found the witnesses on both sides credible, it preferred the Trust's evidence where accounts differed because that evidence was backed by documents. As there was no proof of an entitlement to payment for 63.4 hours or for unworked downtime, the unauthorised deductions claim was not well founded and was dismissed. No monetary award was made.