Mrs C Newman v Solutions4health and 1 other — 2021

Mrs Newman transferred from the NHS to Solutions4health on 1 April 2016 under TUPE. Her salary increased from £22,769.60 to £22,996.80 in April 2017. The judgment records that her separate breach of contract claim had already been withdrawn on 27 July 2020 because she remained employed by R2.

The main claim concerned alleged unlawful deductions from wages arising from the 2018 Agenda for Change pay award. The tribunal held that, applying Alamo v Heron and regulation 4A of the TUPE Regulations 2006, Mrs Newman could not rely on the later 2018 collective agreement against R1 because R1 had not participated in those negotiations. The tribunal also reviewed section 13 of the Employment Rights Act 1996 as the governing provision.

The tribunal then considered whether R1's communications created a contractual variation promising the 2018 increase. It found the relevant emails and letter were not sufficiently certain and were conditional on funding being obtained from NHS Pay, so there was no clear offer and no variation of contract. The first strand of the unlawful deduction claim therefore failed.

On the second strand, the tribunal found Mrs Newman had been paid throughout at the rate of £22,996.80. The apparent shortfall after her transfer to R2 was explained by the pay reference and pay date change, and the £600 advance was repaid over three months at £200 per month. That strand also failed, and the unlawful deduction from wages claim was dismissed in full.