Employment Law Advocates

The recent decision of the Employment Appeal Tribunal in Southern Cross Healthcare v Perkins deals with a number of issues, some of which are quite obscure, but one point arises from it that is of fundamental importance. This concerns the circumstances in which a tribunal can determine claims that have not been expressly pleaded, creating an exception to the general principle in Chapman v Simon that they cannot.

As a reward for long service, the three claimants had been entitled to five additional days of holiday, in addition to their statutory entitlement, at the time of a TUPE transfer to the respondent. However, when the statutory minimum increased from twenty to twenty eight days, the respondent only increased their contractual entitlement to twenty eight days, rather than thirty three days, with the effect that the five additional days were lost. The tribunal construed the contract so that thirty three days should be given.

The claimants were unrepresented and the basis on which they wanted to bring their claims was unclear. They could not be brought under the Working Time Regulations because they concerned a contractual rather than a statutory entitlement to holiday pay and they could not be brought as breach of contract claims because the claimants remained employed by the respondent and so the tribunal would have had no jurisdiction. The tribunal relied upon its powers under Part 1 of the Employment Rights Act to grant the claimants a declaration as to their contractual entitlement, a remedy that was never expressly requested.

In upholding this approach, Judge Hand stated that a tribunal is entitled to reformulate a claim, so that it is brought on an entirely different legal basis, in circumstances in which all of the relevant facts are before the tribunal and there is no prejudice to the respondent. This principle is likely to have a much wider application than merely to claims about holiday pay and ought to soften the effect of Chapman v Simon on discrimination cases as well. The final point made by the judgment is that Part 1 of the Employment Rights Act does allow the making of a declaration about the meaning of a contractual terms in dispute, even in circumstances in which there is compliance with the requirement to give a statement of particulars.