Southern Cross Healthcare Co Ltd v Perkins & Ors

An employment tribunal may reformulate the juridical basis of a complaint where the factual basis remains unchanged and the opposing party suffers no prejudice. Under sections 11 and 12 of the Employment Rights Act 1996, the tribunal has jurisdiction to construe contractual terms recorded in written particulars and to amend or substitute particulars that do not accurately state the contractual agreement. Holiday particulars must accurately state the contractual entitlement, including entitlement to holiday pay. A contractual long-service holiday entitlement may therefore remain additional to the statutory minimum where that is the proper construction of the parties’ agreement.

Employees transferred to Southern Cross under the Transfer of Undertakings (Protection of Employment) Regulations 2006 claimed that five days’ long-service holiday had been preserved as an additional contractual entitlement. Southern Cross contended that the employees’ entitlement was limited to the statutory minimum, including public holidays, and that the tribunal had no jurisdiction to construe the contracts because the claims had not been formulated as contractual claims.

The Employment Tribunal found that the employees were entitled to five additional days and that the entitlement had been preserved on the transfer. Southern Cross appealed on jurisdiction and contractual construction.

1. Appeal dismissed. The Employment Tribunal had jurisdiction under section 11 of the Employment Rights Act 1996 to determine whether the written particulars accurately recorded the contractual holiday entitlement.
2. The tribunal was entitled to reformulate the juridical basis of the complaints. The factual complaint had consistently concerned the amount of holiday entitlement. This differed from Chapman v Simon, where the tribunal found a different factual complaint. Reformulation was permissible because Southern Cross knew the factual and legal issues and suffered no prejudice.
3. The fact of a TUPE transfer did not itself confer jurisdiction. The relevant jurisdiction arose through Part I of the Employment Rights Act 1996, particularly sections 11(2) and 12(2).
4. Sections 1(4)(d), 11(2) and 12(2) required the particulars to state the contractual terms and conditions accurately. The power to confirm, amend or substitute particulars was not confined to omissions or failures to identify the required topics. It necessarily permitted construction of the contract.
5. The July 2006 amendment stated that annual leave was four weeks plus accrued long-service leave of five days, which was frozen and protected. The singular word “this” referred to the immediately preceding long-service entitlement. Properly construed, the five days were additional to other holiday entitlement.
6. The appeal was therefore dismissed. The tribunal’s conclusion was substantively correct, although it would have been preferable for its judgment to have expressed the result expressly by reference to sections 11 and 12.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s judgment sent on 14 April 2009. The appeal was dismissed.
• Employment Tribunal: held that the employees’ five-day long-service holiday entitlement was preserved and additional to other holiday entitlement.