Miss S Fielding v Sara’s Group Limited — 2023

Miss S Fielding had been employed through a series of TUPE transfers, from Hanbury Stores to the Co-operative Group, then to Martin McColl Limited on 19 May 2014, and finally to Sara’s Group Limited on 1 April 2021. The tribunal found that the 2011 Co-operative terms continued to govern key aspects of her employment, including enhanced sick pay after 12 months’ service and a holiday year running from 1 April to 31 March.

On the sick pay claim, the claimant was absent from 4 July 2021 until her resignation on 22 October 2021 and was paid SSP only. The tribunal held that the 2011 terms had removed the earlier handbook wording that made sick pay subject to the employer’s absolute discretion, so the claimant had an entitlement to Group Sick Pay. It rejected the respondent’s argument that she lost that entitlement by not following absence-reporting procedures, finding that this was not the reason given when pay was withheld and that the claimant had in fact notified her absence by fit notes. The grievance report dated 29 September 2021 upheld her complaint, but the respondent did not give her the report or any appeal outcome.

The tribunal awarded £3,827.38 for unlawful deductions in respect of sick pay, calculated as £5,715.84 enhanced sick pay less £1,888.46 SSP. It then applied a 25% uplift of £956.84 under s.207A of the Trade Union and Labour Relations (Consolidation) Act 1992 because the respondent unreasonably failed to comply with the ACAS grievance procedure requirements. On the holiday pay claim, the tribunal found that the claimant remained entitled to 39 days, or 7.8 weeks, annual leave, that the relevant leave year started on 1 April, and that she was owed payment for untaken accrued holiday on termination. It rejected the respondent’s attempt to reduce the award by alleged pre-transfer holiday payments and alleged bank holidays, noting the absence of reliable records, and the operative order records a holiday pay award of £1,225.52.