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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> James Ritchie Robertson v Blackstone Franks Investment Management Ltd [1998] EWCA Civ 654 (7 April 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/654.html
Cite as: [1998] EWCA Civ 654, [1998] IRLR 376
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IN
THE SUPREME COURT OF JUDICATURE
EATRF
97/0416
COURT
OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal
Courts of Justice
Strand,
London WC2
Tuesday,
7th April 1998
B
e f o r e :
LORD
JUSTICE NOURSE
LORD
JUSTICE POTTER and
LORD
JUSTICE MUMMERY
---------------
JAMES
RITCHIE ROBERTSON
Appellant
-v-
BLACKSTONE
FRANKS INVESTMENT MANAGEMENT LIMITED
Respondent
----------------
Handed
Down Judgment prepared by
Smith
Bernal Reporting Limited
180
Fleet Street London EC4A 2HD
Tel:
0171 421 4040 Fax: 0171 831 8838
(Official
Shorthand Writers to the Court)
---------------
MR
A DYER (MR B PILLING 7.4.98)
(instructed by the Employment Rights Unit, Northwich) appeared on behalf of the
Appellant.
MR
R HOWARD
(instructed by Messrs Barlow Lyde & Gilbert, London EC3) appeared on behalf
of the Respondent.
---------------
J
U D G M E N T
(As
Approved by the Court)
Crown
Copyright
Tuesday,
7th April 1998
LORD
JUSTICE MUMMERY:
Introduction
In
Extended Reasons sent to the parties on 18 March 1996 the Industrial Tribunal,
held at Liverpool, decided that the complaint of the applicant, Mr James
Robertson, against Blackstone Franks Investment Management Limited (Blackstone)
under the Wages Act 1986 (the 1986 Act) was in part well founded. The hearing
of his complaint took place before the Chairman alone on 15 December 1995. The
Chairman reserved his decision. He heard no further argument on the form of
order appropriate to his decision. The parties' representatives said nothing at
the hearing to alert him to the need for further argument on the order.
He
ordered Blackstone to pay to Mr Robertson, in respect of unauthorised
deductions of wages contrary to the 1986 Act, the total sum of £14,126.50.
On
10 October 1996 the Employment Appeal Tribunal unanimously allowed Blackstone's
appeal to the extent of substituting a revised sum of £3,626.50.
On
11 March 1997 a single Lord Justice granted Mr Robertson leave to appeal. His
notice of appeal dated 17 March 1997 seeks an order setting aside the decision
of the Employment Appeal Tribunal and directing Blackstone to pay him the sum
awarded by the Chairman without any deductions. On 19 May 1997 the same single
Lord Justice granted Blackstone leave to cross appeal and to serve a
respondent's notice. That was duly done on 20 May 1997. Blackstone seek an
order dismissing Mr Robertson's application to the Industrial Tribunal in its
entirety; alternatively, affirmation of the order of the Employment Appeal
Tribunal.
On
the hearing of this appeal Mr Dyer appeared on behalf of Mr Robertson, who had
previously been represented in the Industrial Tribunal and in the Employment
Appeal Tribunal by a member of the staff of the Citizens' Advice Bureau.
Blackstone were represented by Mr Howard, who has appeared for them throughout.
The
Facts
The
facts may be conveniently summarised as follows:-
(1) Blackstone
carry on, subject to statutory regulation, the business of providing investment
advice and assistance for clients or potential clients. They derive their
income from commissions paid to them by the company in whom the investment is
made, known as the " Investment Product Provider". In order to generate
business Blackstone engage the services of self-employed consultants paid on a
"commission only" basis. The commission is usually 50% of the amount of the
commission paid to Blackstone by the Investment Product Provider.
(2) By
a written contract dated 10 January 1994 Mr Robertson entered into a written "
Contract of Services " with Blackstone under which he was engaged as a
self-employed person. The services which he agreed to provide to Blackstone
included obtaining clients for them by advertising, running seminars,
networking, developing leads and such other ways as he considered appropriate.
The contract provided that he would entitled to commission on business
completed by him; that such commission was payable at the end of the month in
which Blackstone were paid by the Investment Product Provider; and that the
commission rates were as set out from time to time in Blackstone's Procedures
Manual, which might be varied at their absolute discretion. In the first year
of service he was also to be paid an additional non-recoverable commission of
up to £2,500 at the discretion of Blackstone's directors. The contract was
terminable at any time by either party giving one month's notice in writing to
the other.
Paragraph 9 of the Procedures Manual provided that
"
Commission will only be payable during the continuation of this agreement when
the business has been completed and commission received by the company. Any
business introduced but not completed at the date of termination will be
completed on your behalf with due diligence."
(3)
Mr Robertson was appointed to represent Blackstone's interests in the Midlands
and Wales regions. In January 1994 he was informed that, so that he had
sufficient monies to support day-to-day living expenses, Blackstone agreed to
make him an advance against future commissions, repayable to Blackstone within
the first 2 years of the contract ie by 10 January 1996. The advance was to be
paid by monthly instalments for the maximum period of 6 months. The total sum
of £10,500 was paid by Blackstone to Mr Robertson under this arrangement.
(4) On
6 September 1994 Blackstone gave Mr Robertson 28 days notice of termination of
his contract, which came to an end on 4 October 1994.
(5)
On 20 December 1994 Mr Robertson made an application to the Industrial
Tribunal against Blackstone seeking payment of wages and expenses, unresolved
outstanding commission and damages for breach of contract. The claim was
contested by Blackstone in their Notice of Appearance dated 30 January 1995, in
which they disputed the jurisdiction of the tribunal; contended that Mr
Robertson was a self-employed contractor; alleged that he had enjoyed
allowances against anticipated commissions; denied that he had any entitlement
to claim payment of wages or expenses; denied that there was any commission
outstanding; and disputed his claims for anticipated commission and damages for
breach of contract.
Decision
of the Industrial Tribunal
The
findings and reasoning of the Chairman of the Industrial Tribunal may be
summarised as follows:-
(1) Mr
Robertson was not entitled to pursue his claim for damages for breach of
contract, as he was not an employee of Blackstone. That claim was struck out at
a preliminary hearing.
(2) Mr
Robertson was entitled to commissions in respect of sums which had been paid to
Blackstone on behalf of business conducted in relation to the client
commissions, which were due in respect of business introduced by Mr Robertson
and completed after his contract had been terminated in respect of the client.
Those sums totalled £14,126.50.
(3) The
commissions which Mr Robertson was entitled to be paid were " wages " as
defined by section 7 of the 1986 Act.
(4) By
refusing to pay him those sums, Blackstone made unauthorised "deductions"
contrary to section 1(1) of the 1986 Act.
(5) Mr
Robertson was a " worker ", as defined by the 1986 Act, and Blackstone were "
employers " within the meaning of the Act in relation to him as a worker.
(6) Mr
Robertson never signed any agreement or given any written consent to deductions
being made from the commission owed to him. Blackstone were not, therefore,
entitled to make these deductions in respect of the outstanding debt which
Blackstone considered was owed to them by Mr Robertson. That debt was in excess
of £10,000. At the date of the termination of Mr Robertson's contract in
October 1994 no agreement had been reached between him and Blackstone as to
when the advance commissions paid to him in the first six months of his
contract were to be repaid. The Chairman considered that it was a matter for
Blackstone to decide whether they would take legal action elsewhere to recover
the monies which the Chairman was satisfied were owed by Mr Robertson to
Blackstone.
Decision
of the Employment Appeal Tribunal
The
decision of the Employment Appeal Tribunal may be summarised as follows:-
(1) The
Appeal Tribunal rejected Blackstone's criticisms of the Chairman's decision on
the individual items of commission. They specifically rejected the submission
that the sums claimed were not " wages " within Section 7(1) of the 1986 Act.
The Tribunal agreed with the Chairman that commission payable after termination
of the contract fell within the definition of " wages." The Tribunal held that
"
the commissions claimed are the subject of a contractual entitlement, readily
to be identified as and when due and plainly to be paid to Mr Robertson in his
capacity as a worker."
Mr
Justice Holland, who gave the judgment of the Appeal Tribunal, stated that the
total amount of commission, as and when it was properly payable, could be
identified by reference to the contract.
(2) The
advance of £10,500 by Blackstone to Mr Robertson against commission and
repayable before 10 January 1996 could be offset against the commission claimed
as a deduction pursuant to the provisions of section 5(6) of the 1986 Act. The
tribunal stated
"
Prima facie the application of that subsection serves to achieve an offset,
that is against the total award arising out of all four claims,
£14,126.50 there should be set off the sum already paid as advance
commission (that is,"wages"), £10,500 so that Mr Robertson's outstanding
entitlement is £3,626.50p."
(3) The
Appeal Tribunal concluded
"
In the overall result we are entirely satisfied that the Tribunal (through no
fault of its own) misdirected itself as to the significance of the advance on
commission so that it did not make the set-off that was required by reference
to the facts and section 5(6). This we now put right by allowing the appeal so
as to substitute for the total sum originally ordered to be paid as reflecting
an authorised deductions from wages, £14,126.50p, the revised sum,
£3,626.50p."
The
Issues
The
two questions on this appeal are whether the Industrial Tribunal erred in law
(a) in
holding that the commissions paid to Mr Robertson after the termination of his
contract were "wages" within the meaning of section 7 of the 1986 Act; and
(b) in
ordering Blackstone to pay the sum of £14,126.50 to Mr Robertson in
respect of the deduction of his commissions, without taking account of the sum
of £10,500 which Blackstone had already paid to him in 1994 as an advance
against future commissions. This point turns on the construction of section
5(6) of the 1986 Act.
The provisions for the protection of wages contained in the 1986 Act(as
amended), which was in force at the relevant time, have been re-enacted in Part
II of the Employment Rights Act 1996.
The
Wages Point
It is common ground that, if the commissions due from Blackstone are not
"wages", the Industrial Tribunal had no jurisdiction to hear and determine Mr
Robertson's claim under the 1986 Act.
Section 7 of the 1986 Act provides that
"(1)
In this Part "wages", in relation to a worker, means any sums payable to the
worker by his employer in connection with his employment, including-
(a) any fee, bonus, commission, holiday pay or other
emolument,
whether payable under his contract or otherwise.......
(b)
- (f).........
but excluding any payments falling within subsection (2)."
The excluded payments specified in subsection (2) are, inter alia,
"
(e) any payment to the worker otherwise than in his capacity as a worker."
Mr
Robertson was a "worker" for the purposes of the 1986 Act: see section 8(1)
where worker is defined as:
"an
individual who has entered into or works under (or, where the employment has
ceased, worked under) one of the contracts referred to in subsection (2)...."
Those
contracts include
"
(2).......
(c)
any other contract whereby the individual undertakes to do or perform
personally any work or services for another party to the contract whose status
is not by virtue of the contract that of a client or customer of any profession
or business undertaking carried on by the individual..."
"employment",
in relation to a worker, means employment under his contract: see section 8(1).
Mr Robertson had such a contract with Blackstone under which, in connection
with his employment, commissions were payable to him by Blackstone.
I would reject, just as the Chairman and the Appeal Tribunal rejected, Mr
Howard's contention that the commissions payable to Mr Robertson after the
termination of his contract were not wages. He submitted that those commissions
were post-termination payments payable in connection with the termination of
his contract, not in connection with his employment; that they were not payable
to him in his capacity as a worker, because he had ceased to be a worker on the
termination of his contract; and that the commissions were not referable to
work done by him as a worker.
These
submissions are inconsistent with the wide definition of "wages" in section 7,
as construed by the House of Lords in
Delaney
v Staples
[1992]
ICR 483. The section refers to
any
sums and to
any
commission payable, without limit as to the time when it is payable or paid:
the sum must be payable "in connection with his employment", but the definition
does not require it to be payable or paid during the currency of his contract
of employment.
The
sum must have the "essential characteristic of wages........consideration for
work done or to be done under a contract of employment," per Lord
Browne-Wilkinson in
Delaney
v Staples
(supra) at p.488 D. See also p.493 H-494 A where reference was made to
"...the
basic concept of wages as being payments in respect of the rendering of
services during the employment, so as to exclude all payments in respect of the
termination of the contract save to the extent that such latter payments are
expressly included in the definition in section 7(1)."
The
commissions were payable to Mr Robertson in respect of services rendered during
his employment and work done by him in his capacity as a worker under his
contract of employment before it was terminated. Unlike the payment in lieu of
notice in
Delaney
v Staples,
the commissions were not payable in respect of the termination of the contract
of employment. Wages for work done
before
termination
may be payable and paid
after
termination without thereby losing their character as wages or becoming a
payment in respect of the termination of the contract under which the work was
done.
The
Chairman of the Industrial Tribunal made no error of law on this point. He
correctly assumed jurisdiction to determine Mr Robertson's claim under the
1986 Act.
The
£10,500 Advance Commission
The
payment of the sum of £10,500 advance commission in the first six months
of Mr Robertson's employment was relied on by Blackstone in their Notice of
Appearance as a sum in respect of which they had a right of recovery. As found
by the Chairman in his Extended Reasons the agreement
"...did
not contain any provision which entitled the respondents to
deduct
from commission properly payable to him under the terms of the contract any
debts owed by him to the respondents nor did the applicant, during the period
when he worked for the respondents, signify in writing his agreement or consent
to any such deductions being made by the respondents from commission properly
payable to him." (paragraph 9 vi)
(That is a reference to permitted deductions in accordance with section 1
(1) (a) or (b) of the 1986 Act).
In paragraph 9 xiv of the reasons the Chairman made this finding:
"At
the time when the applicant's contract came to an end in early
October
1994 he and the respondents had not entered into any agreement as to when the
advanced commissions etc. paid to him in the first six months of his contract
were to be repaid. However I am satisfied that he does owe debts in excess of
£10,000 to the respondents. (It will be a matter for the respondents to
decide whether they will take legal action elsewhere to recover these monies
owing to them.)"
In those circumstances the Chairman ordered Blackstone to pay the full
amount of the commissions which he found to be owing, without taking any
account of the sum which he found was owing by Mr Robertson to Blackstone. At
the date when he made that order (signed 14 March 1996) the latest date by
which Mr Robertson should have repaid the advance commissions to Blackstone (10
January 1996) had passed. The Chairman's attention was not drawn to section
5(6) and (7) of the 1986 Act.
The
point on set-off surfaced for the first time on the appeal to the Employment
Appeal Tribunal after Mr Robertson had pleaded section 5(7) as a defence to a
claim brought by Blackstone against him in the County Court for the recovery of
sums owed by him, as found in the Tribunal. (We have been told by counsel that
those proceedings, which were not pursued pending the outcome of this appeal,
have been struck out under Order 17 rule 11 CCR).
Mr
Dyer contended on behalf of Mr Robertson that this case falls within Section 5
(7) and outwith section 5(6), from which it follows that the Appeal Tribunal
had no power to set off the sum of £10,500 against the unpaid commission
and that Blackstone are not entitled to recover the sum of £10,500 from Mr
Robertson by any other means. Mr Robertson finds this result attractive: he
recovers from Blackstone all the commission owed to him, without having to pay
back or give credit for a penny of the commission paid by Blackstone to him as
an advance against future commissions not then earned by or owed to him.
Section
5 (7)
The
first question is whether this case falls within section 5(7) . It is the case
that that provision is capable of producing penal effects for an employer who
has made a deduction which he was not entitled to make from the wages of a
worker.
The subsection provides:
"
(7) Where a tribunal has under subsection (4)(a) or (b) ordered an employer to
pay or repay to a worker any amount in respect of a particular deduction or
payment falling within subsection (1)(a) to (d)
("
the relevant amount ") the amount which the employer shall be entitled to
recover (by whatever means) in respect of the matter in respect of which the
deduction or payment was originally made or received shall be treated as
reduced by the relevant amount."
In
Delaney
-v- Staples
(supra) both Lord Browne-Wilkinson in the House of Lords and Nicholls LJ in the
Court of Appeal summarised the potentially punitive effect of this provision.
Lord Browne-Wilkinson said at [1992] ICR 483 at 491 A
"
This is a penal provision. If, for example, an employer made an unauthorised
deduction from wages in respect of a valid cross-claim against the worker the
industrial tribunal would be bound to order repayment of the deduction and the
employer's cross-claim would for all purposes and in all courts be reduced by
the amount improperly deducted."
In
the Court of Appeal Nicholls LJ made this comment on Section 5 (7) at [1991]
ICR 331 at 340 C to D
"
So far as the employer is concerned, the real sting lies in the further
consequence which such orders have. Thereafter the employer is precluded from
recovering (" by whatever means") the amount comprised in such an order for
payment: see Sections 5 (7) and (8). For instance, if an employer has a claim
against an employee, and he asserts that claim by making a deduction from the
employees' wages in contravention of the Act, he will find himself barred from
pursuing that claim in other proceedings after the complaint before the
Industrial Tribunal has reached the stage of the Tribunal actually making an
order. This is the peril confronting an employer if, in contravention of the
act, he makes a deduction in reliance on such a cross claim."
Finally,
in
Potter
-v- Hunt Contracts Limited
[1992] ICR 337 at 340 F to G Mr Justice Wood, giving judgment on behalf of the
Employment Appeal Tribunal, said
"
The provisions of section 5 (7) are clearly intended as a sanction against
unlawful deductions by employers and once a tribunal has ordered an employer to
repay any amount on the basis that a particular deduction or payment was
invalid, the employer loses the right to recover the money in any other way."
Mr Dyer forcefully argued that section 5(7) had been contravened in this
case and that Blackstone were not entitled to recover the £10,500 from Mr
Robertson, either by set off in the Industrial Tribunal proceedings or by
direct action in the County Court. Blackstone made an unauthorised deduction of
wages (ie non payment of the commission owed to Mr Robertson). They did so in
respect of their cross-claim against Mr Robertson for repayment of advance
commission under a separate agreement, in respect of which the Industrial
Tribunal had no jurisdiction under the 1986 Act. Further, the deduction was
made by Blackstone, even though there had been no final agreement between
Blackstone and Mr Robertson on the method of repayment of the £10,500,
save that it was to be repaid at the latest by 10 January 1996. There was no
agreement for the recovery of the advance by deduction from wages which
satisfied the requirements of section 1(1)(a) or (b) of the 1986 Act.
Blackstone made deductions of commission well before the repayment date had
arrived. Indeed, the repayment date was not reached until after the hearing of
Mr Robertson's claim in the Industrial Tribunal had taken place (15 December
1995).
Mr
Howard, on behalf of Blackstone, responded by contending that Section 5(7) does
not apply, because the deduction of commission originally made by Blackstone
was not in respect of the matter of the cross claim for repayment of the
£10,500 commission: it was in respect of the matter of Blackstone's
contention that Mr Robertson was not entitled to be paid the claimed
commission, quite apart from the matter of the £10,500 advance commission.
There was, as appears from Blackstone's notice of appearance, a dispute about
Mr Robertson's primary entitlement to be paid the commission claimed. That was
ultimately resolved against Blackstone by the Chairman, but that did not
prevent the deduction from being made in respect of the matter of
non-entitlement to payment rather than in respect of the matter of a cross
claim for the £10,500.
I am not satisfied that Mr Howard is right on this point since the matter
of the £10,500 featured prominently in Blackstone's Notice of Appearance
resisting Mr Robertson's claim. It is not, however, necessary for the purpose
of this appeal to reach a final decision on that particular argument, since Mr
Howard is correct in his contentions on the construction and application of
Section 5 (6).
Section
5 (6)
On
the one hand, it was submitted on behalf of Blackstone that section 5(6)
applied to the circumstances of this case and that the Chairman made an error
of law in ordering Blackstone to pay to Mr Robertson the amount of
£14,126.50p in respect of the deduction of commission, without taking into
account the amount of £10,500 advance commission already paid to Mr
Robertson. On this argument the Employment Appeal Tribunal had correctly
modified the order of the Chairman.
On the other hand, it was argued on behalf of Mr Robertson that Section 5(6)
did not apply to this case because, on its true construction, it was limited to
an amount the employer had paid to the worker
after
the deduction by the employer. In this case, the amount of advance commission
was paid by the employer to the worker
before
the deduction.
It
is common ground that (a) there is no judicial authority on the construction of
Section 5(6) (it only receives a passing mention in the cases); and (b) it is
necessary to construe the language of section 5(6)in its statutory context.
The
subsection provides:
"
(6) An employer shall not under subsection (4)(a) or (b) be ordered by a
tribunal to pay or repay to a worker any amount in respect of a deduction or
payment, or (as the case may be) in respect of any combination of deductions or
payments, in so far as it appears to the tribunal that he has already paid or
repaid any such amount to the worker."
The
subsection must be viewed in the following context. Sections 1 to 4 of the 1986
Act are concerned with restrictions on unauthorised deductions from wages by
employers. Sections 5 and 6 define the jurisdiction and powers of Industrial
Tribunals in dealing with complaints from workers about unauthorised deductions
by employers. An exclusive jurisdiction is conferred on Industrial Tribunals
to entertain complaints by workers in respect of any contravention of the
restrictions on deductions.
It
is a wide jurisdiction:it was held by the Court of Appeal in
Delaney
-v- Staples
[Supra] that it covers even a case of a total failure by an employer to pay to
a worker the full amount of wages properly payable to him.
Section
5(1) and 6(1) deal with the jurisdiction of the Industrial Tribunal. Section
5(2) imposes a time limit for presenting a complaint. Section 5(3) contains
special provisions affecting time limits when the complaint relates to a series
of deductions. Section 5(4) specifies the powers which might be exercised by an
Industrial Tribunal when it finds that a complaint is well founded: "it shall
make a declaration to that effect" and "it shall order (in an appropriate case)
the employer to pay to the worker the amount of any deduction..." Those powers
are, however, made expressly "subject to subsections (5) and (6) ".
Subsection
(5) deals with the special case of a tribunal ordering a lesser amount where
only one of the conditions set out in section 1(1)(a) and (b) is satisfied.
The
critical question is: in what circumstances does subsection (6) apply? The
subsection is a prohibition against the Industrial Tribunal making an order for
payment to a worker of an amount " in so far as it appears to the tribunal that
[the employer] has already paid..... any such amount to the worker". The
context and the language indicate that this prohibition affects the Industrial
Tribunal's powers at the date when it makes an order that the employer should
pay an amount of money to the worker. The Industrial Tribunal has to consider
the circumstances existing at the day of the order. The question for the
Industrial Tribunal on that day is: has the employer "already paid " any amount
to the worker "in respect of a deduction" ?
The
subsection does not identify the date on which the employer actually made the
payment, other than that he must have "already" paid it. In ordinary English "
already " means"before this time"," beforehand" or "in anticipation". If the
language of the subsection is given its ordinary meaning, it applies to any
payment by an employer to a worker in respect of a deduction
at
any time
before the date on which the Industrial Tribunal makes an order against the
employer. No distinction is drawn between a payment by the employer
before
he made the deduction and a payment by the employer
after
he made the deduction.
I
reject Mr Dyer's contention that subsection (6) only applies where the employer
had made a payment to a worker after he had made an unauthorised deduction. He
argued that subsection (6) could only apply to relieve an employer" in respect
of" a deduction, if the payment was made after the deduction; and that this
construction has the virtue of consistency (a) internally; (b) with the
remainder of the Act (in particular section 7(2)(a)); and (c) with the general
scheme of the Act read as a whole.
Mr
Dyer's difficulty is that, on its ordinary and natural meaning, the language of
the subsection covers the payment of advance commission by Blackstone to Mr
Robertson in the first six months of 1994, ahead of the deduction of commission
by Blackstone following the termination of the contract. The subsection does
not impose an additional requirement as to the timing of the employer's payment
on which Mr Dyer based his argument. When the Chairman made the order in March
1996 he should have asked: has Blackstone already paid any amount in respect of
a deduction to Mr Robertson? The answer to that question is that Blackstone
had already paid such an amount to Mr Robertson: an amount of advance
commission, which he had no right to retain after January 1996, and that amount
was "in respect of" the future commission which was later deducted by Blackstone.
For
these reasons, the Chairman erred in law by making an order in contravention of
the prohibition in subsection (6): he ordered Blackstone to pay an "amount in
respect of a deduction" of commission which Blackstone had already paid to Mr
Robertson in the form of the £10,500 advance commission.
This
construction of subsection (6) and the effect of applying it to the facts of
this case accords with the policy and purpose of the 1986 Act identified by
Nicholls LJ in
Delaney
-v- Staples
(supra) at 338 G:
"
Stated very broadly, the object of the Act was to see that workers receive
their wages in full at the time they are due."
If subsection (6) has the effect proposed by Mr Dyer, Mr Robertson would be
better off as a result of Blackstone contravening the statutory restriction on
deductions than he would have been if they had complied with it:he would
receive more than the full wages due to him. It is true that in some cases
section 5(7) may produce that effect. It does not, in my judgment, produce that
effect in this case.
Conclusion
The
Chairman was right on the wages point, but failed to reduce, in accordance with
section 5(6), the amount to be paid to Mr Robertson. The Appeal Tribunal
correctly modified his order. I agree with the decision of the Appeal Tribunal.
I would dismiss this appeal.
LORD
JUSTICE POTTER: I agree.
LORD
JUSTICE NOURSE: I also agree.
Order: appeal
dismissed with costs provisionally (order not to be drawn up until 24.4.98 to
enable Mr Dyer to make written submissions as to costs if so minded).