Miss S Gemmell v Represented by:10 Ms D Smith - Friend Palmaris Services Limited and 1 other — 2022

Miss S Gemmell was employed by Palmaris Services Limited as a sales ledger administrator and credit controller. She brought an unlawful deduction from wages claim, contending that her contractual sick pay entitlement had not been honoured during a period of sickness absence. The tribunal identified the issue as whether she had a contractual entitlement to sick pay beyond the five weeks full pay provided under the 2011 contract.

On the evidence, the tribunal found on the balance of probabilities that the claimant did not have a written employment contract predating the 2001 TUPE transfer, and therefore did not have the sick pay entitlement she alleged to have transferred. It preferred the respondents' evidence, including evidence from Ms Gall, Mr Paterson and Mr Richardson, and accepted that searches of archives and systems did not locate any pre-2001 contract. The tribunal also found the claimant's evidence about the terms of her alleged entitlement unreliable because she had variously said it was full pay without limit of time and then six months full pay and six months half pay.

The tribunal accepted that the 2011 contract had been given to the claimant on 14 February 2011. It found that the contractual sick pay term in that document provided one week of full pay for each year of service up to a maximum of five weeks, and that the claimant had been paid five weeks full pay followed by statutory sick pay during her 2021-2022 absence. It therefore held that there had been no unlawful deduction of wages by either respondent. The separate sex discrimination claim is recorded in the judgment as dismissed having been withdrawn at the case management hearing on 12 August 2022.