England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE HOOPER)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 3rd July 2001

1. LORD JUSTICE PILL: This is an application for permission to appeal. It is brought by Mr Fadipe. He made an application to the Employment Tribunal. He complained of an unlawful deduction from wages and unfair dismissal contrary to section 104 of the Employment Rights Act 1996. The Employment Tribunal, by a decision notified to the parties on 20th November 2000, unanimously dismissed the complaints. He appealed to the Employment Appeal Tribunal which dismissed the appeal at a preliminary hearing, Hooper J presiding, on 26th March 2001.
2. The applicant has submitted detailed written arguments to this court and has made forceful and eloquent submissions in support of them.
3. The proposed Respondents, Fairstaff Agency Limited, are a recruitment agency. They supply administrative and clerical staff to hospital trusts and other public sector bodies. In early 2000 the applicant entered into an arrangement with them such that they would, if available, offer him suitable assignments in the medical field. A written agreement was signed on 10th April 2000.
4. The first assignment was at the Great Ormond Street hospital as a copy typist. The applicant received £7.73 an hour and the assignment lasted for two weeks, a period which he completed at that rate of pay. Shortly afterwards he was offered a further assignment at the same hospital. It was then that the difficulty which has led to the present application arose.
5. The Respondent's case was that their contact at the hospital, Miss Burnett, had made complaints on 17th May about the way the applicant was doing his work. They said that she requested that his assignment be terminated with immediate effect. The Respondents did that. He was paid during the short time he worked there on the second assignment at a rate of £6.18 an hour.
6. The Employment Tribunal set out the relevant statutory material. Section 13.1 of the Employment Rights Act 1996 provides:

"An employer shall not make a deduction from wages of a worker employed by him unless:

(a) the deduction is required, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction."

7. Mr Fadipe rightly refers me to subsection 3, which provides that:

"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion after deductions, the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion."

8. This is not the order in which the applicant addressed the court but his submission is that the payment of £6.18 per hour for that short period amounted to an unlawful deduction within the meaning of section 13 from the sum which he should have been paid, namely £7.73 per week.
9. If there was an unlawful deduction under section 13 that triggers the operation of section 104, which I need not set out in full but which provides the basis for the application to the Employment Tribunal, Mr Fadipe had not served for the qualifying period, which is normally required.
10. But section 104 provides that:

"An employee ... shall be regarded ... as unfairly dismissed if the reason ... for [his] dismissal is [if he has] alleged that the employer had infringed a right of his which is a relevant statutory right."

11. This is a claim that the statutory right is that not to suffer unauthorised deductions from wages.
12. Mr Fadipe first addressed me about the evidence before the employment tribunal and the absence of evidence from Miss Burnett. His first submission, something about which he obviously feels strongly, is to challenge the Respondent's claim that Miss Burnett had made a comprehensive complaint to them about the applicant's conduct while at the Great Ormond Street hospital. Mr Fadipe submits that the burden of proof is on the employer. They had not proved that the complaints had been made. They did not even have a signed statement from Miss Burnett and, what is more, it is quite inconsistent, he submits, with a complaint having been made by her that she provided him with a most favourable reference, which appears at page 38 of the bundle. She replied, "Good," to questions which, had she made the complaint, she could not properly have done.
13. The employers relied on evidence of their representatives that the complaint had been made to them and was the reason for the dismissal. The applicant submits that, in the circumstances, it was perverse of the tribunal to accept that evidence.
14. The central question is, however, the alleged unauthorised deduction from wages and I regard the issue which I have just considered, the apparent contradiction between a complaint and the reference given by Miss Burnett as a peripheral issue, though I well understand the surprise and feelings which the applicant has on that subject.
15. The employment tribunal set out the issues in this way and, in my judgment, correctly:

(a) whether there was a unlawful deduction from Mr Fadipe's wages;

(b) whether he was an employee;

(c) if he was an employee, whether he was dismissed; and

(d) if he was dismissed, whether the reason for that dismissal was his assertion of a statutory right.

16. The tribunal accepted, and were entitled to accept, the evidence of the employer's witnesses on the point I have already considered but they also made the finding of fact, paragraph 19:

"With regard to the claim of an unlawful deduction from wages, the tribunal found that Mr Fadipe agreed the rate of pay on the second assignment of £6.18 an hour. There was no question but that he was paid that amount. Therefore, we unanimously found that there was no deduction from his wages."

17. The applicant submits that, having regard to the provisions of section 13, which I have read, that was not a finding the tribunal were entitled to make. The Employment Appeal Tribunal upheld that finding, stating at paragraph 10:

"It is the unanimous view of this tribunal that this does not raise an arguable ground of appeal. This was not a case of an unlawful deduction; this was a case of no deduction at all."

18. The applicant accepts that he did agree with Miss Burnett a rate of £6.18 per hour. He draws attention to the fact that, under subsection 3 of section 13, a deduction must be agreed in writing. If, however, the view of the EAT is correct that this was not a deduction at all, then that subsection does not apply.
19. What the applicant says is that he was misled. Though he did agree the rate of £6.18 an hour, he was misled by Miss Burnett as to the work which was to be done. He was told that the rate of £6.18, which he has told me is the clerk's rate, was the appropriate rate because he was told that there would be two people sharing the job, that there would be no typing and not much administration. He says that, once he started the job, he found all that to be false. He took it up first with her and then with the proposed Respondents and it was then that the alleged complaint was made by her and, if it was made, accepted by the employers.
20. The applicant's basic submission is that he agreed the clerk's rate of £6.18, which is lower than the receptionist's rate of £6.88 and the ward administrator's rate, which he had been paid for the first assignment, of £7.73 a hour because of false information he had been given. There was no informed consent by him. There was no written consent by him.
21. I am unable to accept in the circumstances that it is arguable that section 13 applies in this case. He was employed with his consent as a clerk. The appropriate rate for a clerk was that of £6.18 an hour. The fact that there then arose a dispute as to whether the work he was doing was a clerk's job rather than one which deserved a higher pay was not in my judgment such that the provisions of section 13 can be said to operate. It was not intended to deal with this situation, where there is a dispute between the employer and the employee as to the appropriate rate for the job and/or as to whether the work which is being done complies with the definition of clerk which deserves the rate of £6.18 per hour and would be the sum properly payable for a clerk.
22. The situation might be different if there had been a prolonged period of employment and there was then evidence that, over such a period, the job being done was that of a ward administrator. In such circumstances the provisions of section 13 may come into operation. This dispute arose very early on. If he is right in what he says, Mr Fadipe took immediate action. Hence the dispute between him and the Respondent to which I have just referred. In my judgment it is not arguable that, against the background I have described, there has been a breach of section 13 which would bring the provisions of section 104 into play. In any event it was not the reason for the dismissal.
23. I understand his sense of grievance. It is not for me to judge what happened between him and Miss Burnett, whether he was misled or whether there was a misunderstanding of some kind, or what the factual position was. Especially having regard to the shortness of the period for which the second assignment lasted, I am unable to hold that it is arguable that he has suffered an unauthorised deduction from his wages.
24. In those circumstances this application must be refused.
Order: Application refused.