Mr D Duncan v - Representative Elgin Town Hall for the Community — 2019

Mr D Duncan brought a claim for arrears of pay based on an acting-up allowance under Moray Council's collectively agreed policy for employees temporarily undertaking higher graded duties. The tribunal accepted that the policy contained a contractual entitlement where the circumstances justified an allowance, and that the entitlement transferred to the Respondent by TUPE when the Claimant's employment transferred on 1 December 2019.

The tribunal found that, after the Senior Hall Keeper became absent through sickness, the Claimant assumed many of that post's responsibilities, including line management, rotas, arranging volunteers, inspections, contractor direction, stock ordering, building checks, and reporting to board members. On the evidence, the tribunal preferred the Claimant's assessment that he was performing about 75% of the Senior Hall Keeper's duties, rather than the Respondent's position that he was doing about 50%.

The tribunal also accepted that the Claimant had repeatedly raised the issue with Moray Council and then with the Respondent before transfer, including correspondence in November 2019. It preferred the Claimant's view that the £500 ex gratia payment offered on 30 November 2019 was connected with the acting-up issue, rather than being wholly separate from it. The tribunal held that the Respondent was liable for the arrears and ongoing allowance obligation after the TUPE transfer.

Applying its finding that the Claimant had carried out 75% of the Senior Hall Keeper duties, the tribunal awarded 75% of the agreed 100% quantum of £7,293.29. The final award was £5,469.97 gross, with the Respondent responsible for any required tax and national insurance deductions.