Mrs L Brennan v St Helens and Knowsley Teaching Hospitals NHS Trust UPON APPLICATION made by letter dated 18 September 2022 to reconsider the — 2023

This was a reconsideration under rules 70 and 73 of a judgment originally given on 13 September 2022. The claimant said her amended schedule of loss had wrongly reduced occupational maternity pay by taking £243 per month of salary sacrifice for childcare vouchers into account, and she asked for the award to be increased from £977.92 plus £93.02 interest to £2,673.63 plus £254.32 interest.

The tribunal accepted that the matter was capable of reconsideration, but refused the application. It held that the NHS Terms and Conditions of Service Handbook required full pay to be calculated using the average weekly earnings rules for statutory maternity pay, and that where part of salary is sacrificed under a salary sacrifice arrangement the sacrificed amount does not count as earnings for SMP, and therefore OMP, purposes. On that basis, the tribunal said the original calculation was correct and the claimant's argument that £243 should be added back was wrong.

The tribunal also said that Williams v Ferrosan Ltd did not assist the claimant because there had been no shared misapprehension by the tribunal and both parties about the figures used at the hearing. It found that the claimant had positively advanced the calculation that was accepted at the original hearing, so the reconsideration application would have failed in any event. The application was refused and the original award of £977.92 plus £93.02 interest, totalling £1,070.94, stood.