Mr H Anderson Smith (lay representative) For the v Mr R Kerr, Consultant — 2020

Miss Anderson had significant difficulties with reading, writing and numbers, and the tribunal accepted her evidence only so far as it could be understood with the help of her son, Mr Anderson Smith. The judge also refused an attempt to add a holiday pay claim, applying Selkent Bus Company Ltd v Moore, because Churchill had not been given prior notice that holiday pay would be pursued and the case management directions had not been followed.

The central factual issue was how Miss Anderson had been paid before and after her TUPE transfer from Cambridge City Council to Churchill. The tribunal found that Cambridge City Council had calculated her annual pay in advance and paid it by 12 equal monthly instalments, but that Churchill changed the method so that she was paid each month for the days and hours actually worked. The judge found the averaging arrangement was a contractual term preserved on transfer, that Churchill had not shown any legally effective variation or ETO reason, and that the fact her total annual pay was the same did not prevent there being unlawful deductions when individual monthly payments were lower than the wages properly payable on that occasion. The tribunal relied on s.13(3) ERA 1996 and cited Pendragon plc v Nota and Laird v AK Stoddart Ltd.

Of the specific complaints identified at the case management hearing, the alleged sick pay underpayment failed because there was no specific evidence and any complaint about June 2015 was out of time under s.23(4)(a) ERA 1996. The enhancement underpayment complaint was not upheld because Churchill had already identified a £675.64 error and corrected it on 23 March 2018. The five-minute lunch-break deduction claim was dismissed because the tribunal found the contractual lunch break had been varied to one hour during her Cambridge City Council employment. The judge made a declaration under s.23 ERA 1996 that the complaint was well founded, but could not finally quantify the amount due under s.24(1)(a) and directed the parties to try to agree the monthly calculations.