Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 1711_7IT, [2008] NIIT 1711_07IT

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Cranston v Royal Mail Group Limited [2008] NIIT 1711_07IT (19 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1711/07

CLAIMANT: Paul Mark Cranston

RESPONDENT: Royal Mail Group Limited

DECISION

The unanimous decision of the tribunal is that the claim in respect of unauthorised deductions from earnings is dismissed.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mrs E Torrans

Mrs M Gregg

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by Mr David Dunlop BL instructed by Napier & Sons Solicitors.

THE ISSUES

(1) The first issue for the tribunal was to determine the precise nature of the claim or claims before the tribunal. It was agreed between the parties and was apparent from the papers that there was a claim that the respondent had unlawfully deducted sums from the claimants wages by paying £5.80 per hour instead of the higher rate of £7.30 per hour to which the claimant alleged that he was contractually entitled. The claimant also alleged during the course of cross examination that his case also included a claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Mr Dunlop on behalf of the respondent stated that this was the first occasion on which a claim under these regulations had been suggested. Mr Dunlop pointed out that a written grievance completed by the claimant on 23 July 2007 did not raise an issue of comparison between the claimant as a fixed term worker and permanent employees engaged by the respondent. The grievance simply alleged that the claimant had been treated less favourably than other temporary employees in that he had been paid a lower sum of money as a casual worker than a temporary worker on a fixed term contract would have received. Mr Dunlop argued that the lack of a proper grievance meant that the tribunal had no jurisdiction to consider this additional claim even if it were properly grounded and even if it had appeared properly in the claim form. The tribunal however concluded that Article 19 of and Schedule 3 to the Employment (Northern Ireland) Order 2003 did not specify a claim under the 2002 regulations as a claim in respect of which the statutory dispute resolution procedures should be completed. Mr Dunlop raised two further issues; i.e. firstly whether or not the casual contract under which the claimant was engaged attracted the protection of the 2002 regulations and secondly whether or not the claim form lodged on 20 September 2007 included any claim under the 2002 regulations. In relation to the latter point, the claimant stated that he had completed his claim form on line. In response to paragraph 7.1 where he was asked to indicate the type of complaint that he wished the tribunal to consider, he stated that he was faced with a selection of boxes to be ticked and that the only box which came anywhere close to the complaint that he wished to make was a box marked "part time working". He stated he then proceeded to tick that box. The position is in fact somewhat different. Completion of the on line claim form offers a claimant an alternative to any of the specific boxes under paragraph 7.1. The clamant is in fact invited to complete a box which is headed "OTHER TYPE OF COMPLAINT (please specify)".

The tribunal has considered the contents of the claim form and notes that the claimant has included a brief reference at the end of paragraph 13 which refers to the response to his grievance and states that "this letter did not explain why I received a lower rate of pay to a temporary or full time post person". However, it is apparent from the rest of the form and from the grievance which the claimant pursued that the claim he was bringing was a claim alleging that he had been treated unfairly in comparison with those individuals engaged on temporary fixed term contracts and that he was not, at the time he completed the claim form, pursuing a claim under the 2002 regulations. When the claimant was asked specifically by the tribunal why he had not completed paragraph 7.1 of the claim form to include a specific reference to a claim under the 2002 regulations he stated that "I thought my claim was for an unauthorised deduction from wages". He went on to state that he knew at that point about the 2002 regulations and had received advice from a solicitor. However he thought at that point that his claim was in respect of an unauthorised deduction from wages.

The tribunal therefore concluded that the only valid claim before it was a claim of unauthorised deduction from wages contrary to Part IV of the Employment Rights (Northern Ireland) Order 1996 and advised the parties accordingly.

FINDINGS OF FACT

(2) The claimant was a student who completed an on line application for a post advertised by the respondent. That advertisement sought fixed term temporary workers at the Belfast South and Central Delivery Offices. The pay advertised for this post worked out at £7.30 per hour. The claimant completed an on line test and questionnaire and was invited for an interview on 16 May 2007.

(3) On 17 May 2007 the claimant was advised by telephone that he had been successful and that further details would be sent out to him. Approximately one week later he received an identical telephone call.

(4) A written contract was sent to the claimant on 5 June 2007 for completion. That contract was a contract as a casual employee at £5.80 per hour. The claimant was invited to sign the contract indicating his acceptance to the terms and conditions contained in that contract. The casual contract was not the post for which the claimant had applied.

(5) The respondent used two different types of non permanent contracts:-

(i) Temporary contracts for fixed terms with fixed hours at £7.30 per hour and

(ii) Casual contracts without fixed hours for up to twelve weeks at £5.80 per hour.

(6) The claimant did not sign the contract immediately. He attended work on the first scheduled day i.e. 11 June 2007 and raised the question of the contract and hourly rate with a Mr Eddie Spence. He was informed there was nothing that he could do. The claimant was unable to speak to his line manager until the following week. He completed and signed the contract on 11 June 2007. He indicated his acceptance of the terms of the contract and that acceptance was unqualified.

(7) The claimant raised a written grievance on 23 July 2007 alleging that he was entitled to £7.30 per hour and that he had been discriminated against in comparison with temporary fixed term employees. He did not allege in this grievance that he was discriminated against in comparison with permanent employees.

(8) The respondent replied on 16 August 2007 and advised the claimant that the requirement had originally been for temporary fixed term staff in Belfast. However by the time a job offer was made, the requirement had changed and the respondent needed only casual employees. The offer of employment which had been made to the claimant had been in clear and express terms and had been accepted on that basis.

THE LAW

(9) An employee who is paid less than the amount to which he is contractually entitled can in certain circumstances bring a claim to the Industrial Tribunal under Part IV of the Employment Rights (Northern Ireland) Order 1996.

DECISION

(10) The tribunal can understand that the claimant feels somewhat aggrieved when he had applied for employment as a temporary fixed term worker over the summer period but was then offered a different post on less favourable terms and conditions of service and in particular on a lower hourly rate. However the issue before the tribunal is not whether or not the claimant is entitled to feel aggrieved. The issue is rather whether or not the claimant is contractually entitled to the hourly rate of £7.30. The question is essentially a question of contract. The offer made to the claimant in the letter of 5 June 2007 and detailed in the attached contract was clear and unambiguous. The contract on offer was a casual contract with no fixed hours and an hourly rate of £5.80. The claimant clearly understood the terms of this contract and appreciated that the terms were fundamentally different from the terms of the contract for which had originally applied. Nevertheless he accepted the casual contract and indicated that he understood and accepted the terms and conditions of that contract. He continued to work for the respondent until the end of September 2007 and therefore worked on these terms and conditions for a period of more than three months.

(11) The tribunal concludes that the claimant accepted the terms of the casual contract and that he received all the monies due to him under that contract. The claim for unauthorised deductions from earnings is therefore dismissed.

Chairman:

Date and place of hearing: 29 January 2008, Belfast.

Date decision recorded in register and issued to parties: