Mr W CUNLIFFE v North East and North Cumbria Integrated Care Board — 2024

This was a hearing before Employment Judge Gowland on 11 December 2023, with both parties represented. The claimant had been employed as a Secondary Care Clinician (Designate) and the case concerned whether he was entitled to an enhanced redundancy payment of £12,291.58 after deduction of the statutory redundancy payment, together with a s.11 ERA 1996 declaratory claim and an alternative s.13 ERA 1996 unlawful deduction claim.

The Tribunal allowed the claimant's written amendment dated 14 July 2023 to add breach of contract in the alternative, applying the approach in Selkent Bus Company v Moore and Vaughan v Modality Partnership. It found that the original claim was already plainly one for breach of contract and that the amendment was a matter of re-labelling with no prejudice to the respondent. However, it refused the claimant's late oral amendment at the hearing to substitute the consultant's contract for agenda for change, relying on the balancing exercise described in Selkent and the ET1 principles in Chandhok v Tirkey, because that would have been a substantial late change and would have prejudiced the respondent's defence.

On the merits, the Tribunal accepted the claimant's own evidence that agenda for change did not apply to him, so the breach of contract claim failed. It also held that the letter dated 4 October 2012 satisfied the requirements of s.1 ERA 1996, that the claimant had not shown any basis for implying a redundancy-pay clause, and that the consultant's contract did not apply to the role. The s.11 claim was therefore dismissed.

The s.13 unlawful deduction claim also failed because redundancy payments are excluded from wages by s.27(2)(d) ERA 1996. All claims were dismissed and no award was made.