Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06266_09IT.html
Cite as: [2010] NIIT 06266_09IT, [2010] NIIT 6266_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6266/09

CLAIMANT: Wilf Carter

RESPONDENTS: 1. South Eastern Regional College

2. Belfast City Council

DECISION

The unanimous decision of the tribunal is that the claimant’s claim is dismissed.

(1) The claimant’s claim for unlawful deduction of wages is within time as it is of a continuing nature.

(2) The claimant has not established a contractual entitlement to be paid as a Senior Executive Officer.

(3) The claimant has not identified a specified sum or a quantifiable amount as required by Article 45 of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman: Mr D W I Wimpress

Members: Ms N Wright

Mr A White

Appearances:

The claimant was represented by Ms Roisin Graham of NIPSA.

The first named respondent was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by Worthingtons Solicitors.

The second named respondent did not appear and was not represented

The claim and the Response

1. The claimant's claim form comprised of claims in respect of breach of contract, unauthorised deduction of wages and unfair treatment on account of his union activities. The latter two heads of claim were withdrawn in advance of the hearing and as a result the only claim that remained to be determined was whether the first named respondent made unauthorised deductions from the claimant's wages. The claimant did not seek to pursue this claim against the second named respondent and it is dismissed from the proceedings.

The Issues

2. The parties helpfully agreed the issues as follows:-

(1) Does the tribunal have jurisdiction to entertain the claimant's claim by reason of the time requirement in Article 55 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order")?

(2) Did an email dated 30 September 2004 from John Heyburn of Belfast City Council to Terry McGonigal create a contractual entitlement for the claimant to be paid as a Senior Executive Officer?

(3) Even if the claimant does have a contractual entitlement, can he point to a specified sum or a quantifiable amount for the purposes of Article 45 of the 1996 Order?

Sources of Evidence

3. The tribunal received a bundle of documents from the parties and heard evidence from the claimant and Mr Heyburn.

The Facts

4. The claimant was employed by the first named respondent at the material time as a Monitoring Placement Officer (now named Training Support Officer). He commenced employment with the first named respondent which was formally known as Lisburn Institute on 8 November 1995 and remains employed by the first named respondent.

5. From April 2000 to April 2004 the claimant was the local NIPSA representative. The claimant was also a member of the Board of Governors from 2002 to 2006 having been elected as the Corporate Services Staff Representative. From 2002 to 2004 the claimant in his capacity as the NIPSA representative, was involved in representing Monitoring Placement Officers in a grievance process which overlapped with a Job Evaluation Process which took place between 2003 and 2005. During the grievance process the claimant perceived that two members of the Senior Management Team, Mr Alistair McReynolds and Mr Terry McGonigal, were ill disposed towards the Jobskills Operation, which was where the claimant worked, and to the claimant in particular.

6. The Job Evaluation Scheme in respect of the Monitoring Placement Officers was negotiated by the claimant and submitted by the claimant to his line manager on 9 September 2003.

7. The Job Evaluation Process was undertaken by the Business Improvement Service of the second named respondent on behalf of the first named respondent between 9 September 2003 and 26 April 2005. The claimant was chosen as a representative of a group of six employees who held the same position.

8. Prior to the process commencing the claimant's post was graded as AP3/4 or SCP (Spinal Column Point) 18-25. The range of points covered by this grade was 410 to 449. The next grade up which was known as Scale 6 or Senior Executive Officer went from 450 to 484 points.

9. The process involved an initial job evaluation interview which was conducted by his line manager, Ms Emer Boyle, on 5 July 2004. She assessed the claimant's post and awarded 440 points which equated to AP3/4 or SCP 18-25.

10. This assessment was then considered by a panel of three which was comprised of Mr Heyburn, Ms Phyllis Anderson and Ms Boyle. The purpose of having the matter considered by a panel was to remove any element of bias or discrimination. The panel adjusted the score downwards to 428 points which again equated to AP3/4 or SCP 18-25. The panel produced a score sheet dated 22 September 2004 which contained a breakdown of the claimant's score.

11. On 30 September 2004, unbeknown to the claimant, Mr Heyburn sent an email to Mr McGonigal. The material portion of the email read as follows:-

"Please find below a brief summary of the results so far although not all panelled.

Please come back when you have had a chance to examine them."

The results were then sent out in a grid. No actual scores were given for the claimant or his colleagues but the original grading was together with the evaluated grade and the equivalent NJC grade. In the claimant’s case the evaluated grade was given as Senior Executive Officer and the equivalent NJC grade was given as Scale Six. In terms of points this meant that the claimant’s post fell into the range of 450 to 484 range.

12. On 15 October 2004 the result of the Job Evaluation Process was communicated verbally to the claimant, the outcome being that the grade remained unchanged.

13. According to the claimant, he asked for an informal meeting with Mr McGonigal in order to request further information about the unsuccessful Job Evaluation and to obtain the score sheet. The meeting took place on 22 October 2004 and was described by the claimant as quite tense. To the claimant's surprise, Mr McGonigal called in Ms. Josephine Kelly, the Acting Director of Finance, and in her presence informed the claimant quite bluntly and aggressively that he should not appeal the result of the Job Evaluation because if he was successful he could lose his job along with his colleagues. The claimant asked if he was being threatened and whether his colleagues had been similarly threatened. Ms Kelly replied that it was not a threat but that there was always a question as to whether the Monitoring Placement Officer job could be done by work based assessors.

14. The outcome of the Job Evaluation Process was confirmed by letter dated 1 November 2004 from Ms Kelly. Ms Kelly enclosed a breakdown of the claimant’s marks dated 22 September 2004 together with a copy of the Job Evaluation Scheme. Ms Kelly also informed the claimant that if he wished to appeal he must do so within 15 days.

15. The claimant was encouraged to appeal the result by the Human Resources Manager, Catherine Sweeney. The claimant’s personal view was that the post should have scored 458. On 24 November 2004, a pre-appeal request was lodged and a pre-appeal meeting took place on 20 January 2005. On 26 April 2005, the claimant was advised of the result of the pre-appeal which was that the grade remained unchanged. The claimant had the option of pursuing the formal appeal but did not follow this through and subsequently withdrew it. According to the claimant, the decision to withdraw the appeal was due to pressure from Ms Kelly and Mr McGonigal who intimated that a successful appeal would be detrimental to the job security of the claimant and his colleagues. It is common case that other employees successfully appealed their assessments and moved to the higher grade. The claimant remained unhappy with the scoring and had suspicions about the matter but did not start to look for material that would assist his case until 2007.

16 On 3 April 2009, as a result of a data protection request, the claimant was provided with a copy of the email of 30 September 2004 from Mr. Heyburn to Mr. McGonigal which evaluated the claimant’s post as Senior Executive Officer/Grade 6. This meant that the claimant’s post had been assessed as being in the range of 450 to 484 points at some stage in the process. As a result of receiving this information, the claimant launched these proceedings.

17. In his evidence to the tribunal, the claimant, in reliance on the email of 30 September 2004, sought to make the case that his job was in fact upgraded and that the Job Evaluation process was not independent as it was open to manipulation, input and negotiation by the respondents without the knowledge or input from the claimant or NIPSA. The claimant also pointed out that two other posts referred to in the email, those of Mr Hicklin and Mr Rooney were also given lower marks than on the email but that they were able to successfully appeal their results. The claimant drew attention to the invitation contained in the email from Mr Heyburn to Mr McGonigal to come

back to him when he had a chance to examine them. According to the claimant this also demonstrated that the process was not independent. The claimant also criticised the failure of the first named respondent to send the second named respondent a copy of the Job Evaluation Procedure. In addition, the claimant complained of harassment, intimidation and pressure by Mr McGonigal and the Principal, Mr McReynolds. In his evidence to the tribunal the claimant described a number of occasions on which this occurred. It is not necessary to dilate upon the detail of these allegations and it is sufficient for present purposes to record that they were in large measure concerned with the budgetary impact of upgrading the Monitoring Placement Officers. In this regard we accept Mr Heyburn’s evidence that it was entirely normal and above board to consult with the customer that had commissioned the assessment and that the object of the exercise was to find the minimum grade at which the work could be undertaken effectively.

18. The claimant also drew attention to discrepancies in the dates on the score sheets. In particular, the claimant referred to the score sheet attached to the Ms Kelly’s letter of 1 November 2004 which was dated 22 September 2004 and therefore pre-dated the email of 30 September 2004 which purported to give the results as determined by the panel. Having considered carefully Mr Heyburn's evidence on this issue we believe that the date given in the score sheet attached to the letter of 1 November 2004 is in all likelihood erroneous. In any event it does not sound on the issues with which we are concerned in these proceedings.

The Law

19. Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:-

“(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

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

(2) In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) 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.

(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.”

19. Article 59(1) provides that for the purposes of a claim under Article 45,

““wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise[…]”

20. The time limit for complaints to industrial tribunals is dealt with in Article 55 as follows:

“55. —(1) A worker may present a complaint to an industrial tribunal—

(a) that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50( 2)),

(b) that his employer has received from him a payment in contravention of Article 47 (including a payment received in contravention of that Article as it applies by virtue of Article 52(1)),

(c) that his employer has recovered from his wages by means of one or more deductions falling within Article 50(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

(d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with Article 52) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under Article 53(1).

(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with—

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3) Where a complaint is brought under this Article in respect of —

(a) a series of deductions or payments, or

(b) a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates,

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”

Submissions

21. On behalf of the claimant Ms Graham submitted that the respondent had made an unlawful deduction from the claimant’s wages. Ms Graham based this submission on Halsbury's Laws Volume 41 (2009) 5th Edition paragraph 1042-1503 where is states as follows;

"where the total amount of wages paid on any occasion by an employer to a worker employed by him is less that the total amount of wages properly payable to the worker on that occasion, after deductions, then, except insofar as the deficiency is attributable to an error in computation, the amount of the deficiency is to be treated for these purposes as a deduction made by the employer from the worker's wages on that occasion."

Ms Graham submitted the focus is on what is "properly payable" in these circumstances and that the claimant's claim was based on the contention that a higher level of wages was properly payable to him as a result of a job evaluation but that this was not paid to him because of a deliberate and unlawful interference by Mr McGonigal which resulted in the downgrading of the claimant's salary scale level. Ms Graham also drew attention to threats made by Mr McGonigal to the job security of the claimant and his colleagues should they appeal the assessment. She also noted that other evaluations that were downgraded were successfully appealed. On this basis she argued that because this action was unlawful the grading in the earlier email communication was the correct one and represented the amount that was properly payable to the claimant.

22. In relation to the time point, Ms Graham placed reliance on Harvey, Division T paragraph 238-243.01 and in particular to paragraph 239 which states as follows:

"The leading case is Machine Tool Industry Research Association v Simpson [1988] IRLR 212, in which the Court of Appeal set out the principles that apply in such a situation. That was a case where the claimant, having been made redundant, sought to bring an unfair dismissal claim out of time on the ground that another employee had been re-engaged, thereby suggesting to her that there may not have been a redundancy situation at all. Purchas LJ, giving judgment, said that the determination of the issue of reasonable practicability in such a situation involves the study of the claimant's subjective state of mind. The claimant is not, therefore, required to prove the truth of the facts that led him to bring his claim. But in order to obtain the benefit of the escape clause, he must according to Purchas LJ, establish three things:

- that it was reasonable for him not to be aware of the factual basis upon which he could bring an application during the three-month limitation period (it being accepted that it cannot be reasonably practicable to bring a case based on facts of which he was ignorant);

- that the knowledge gained has, in the circumstances, been reasonably gained by him, and that that knowledge is either crucial, fundamental or important to his change of belief from one in which he does not believe that he has grounds for an application, to a belief which he reasonably and genuinely holds that he has a ground for making the application;

- and that the acquisition of the knowledge is crucial to the decision to bring the claim in any event.

On the particular facts of the Machine Tool case, both the EAT and the Court of Appeal upheld the employment tribunal's decision that it was not reasonably practicable for the claimant to have presented her claim in time."

On this basis, Ms Graham submitted that the claimant was able to satisfy all of the requirements in relation to the discovery of new facts. Ms Graham also submitted that the bullying of the claimant and his colleagues prevented the claimant from exercising his right to appeal the assessment and drew attention to the success of other appeals against downgrading.

In the alternative Ms Graham submitted that the unlawful deduction of wages had been continuing to date and therefore no time limit had been breached.

23. On behalf of the respondent, Mr McEvoy contended that time should run from the receipt of Ms Kelly’s letter of 1 November 2004. Mr McEvoy based this submission on the evidence that the claimant had been unhappy from an early stage about his score and that the recent discovery of the email of 30 September 2004 was merely the catalyst for issuing proceedings.

24. In relation to the substantive issues, Mr McEvoy placed reliance on Coors Brewers Ltd v Adcock [2007] IRLR 440 in which Walls LJ stated that the mechanics of Article 45 should operate as follows:

“The employee complains that there has been an unlawful deduction from his wages. He has not been paid an identified sum. He makes a claim under Part II. The employer may have a number of defences. Those defences may raise issues of fact. Those issues will be for the Tribunal to determine. But the underlying premise on which the case is brought is that the employee is owed a specific sum of money by way of wages which he asserts has not been paid to him. That, it seems to me, is the proper context both of Delaney v Staples and Part II of ERA 1996.

[Part IV of ERO 1996], as I read it, is essentially designed for straightforward claims where the employee can point to a quantified loss. It was designed to be a swift and summary procedure. Of course such claims would throw up issues of fact. The example canvassed in argument was of an employee being paid piece work, and asserting that his employer had deducted sums properly payable to him for work undertaken on the grounds that some of the items produced by the employee were defective. Delaney v Staples provides another example. Such a dispute would not take the case outside [Part IV of ERO 1996]. I also accept that [Part IV] is capable of expansion along Farrell Matthews and Weir v Hansen lines as envisaged by [ERO 1996, s.59(3)]. “

Mr McEvoy acknowledged that the jurisdiction to entertain a claim for unauthorised deductions is such that a tribunal can adopt a broad approach to claims under this heading: Delaney v Staples [1992] IRLR 191 HL but maintained that there are clearly defined parameters to claims for unauthorised deductions which a claimant must satisfy in order to stand a prospect of succeeding and that in several respects the claimant’s claim fell outside those parameters.

25 Firstly, Mr McEvoy pointed out that a claim under Article 45 required that a specific sum capable of quantification can be identified and the claimant had failed to do so. He had merely presented a schedule of the comparative payscales which was insufficient for the purposes of a claim under Article 45 and that there ought to be clear quantification of the ‘amount’ that has been deducted. In these circumstances, Mr McEvoy submitted that the claimant’s case was much too abstract to come even within the fairly liberal confines of an unauthorised deductions claim under Article 45.

Secondly, Mr McEvoy submitted that the wages that were the subject of the claim were not “properly payable” to the claimant under Article 45(3). In this connection, Mr McEvoy drew attention to the comments of the Court of Appeal in New Century Cleaning Co. Ltd v Church [2000] IRLR 27, where Morritt LJ put the applicable test as follows:

“the question, in terms of [Article 45(3)], is: what was the wage properly payable to Mr Church on the first payday thereafter? The word 'payable' clearly connotes some legal entitlement. The adverb 'properly' is also consistent with a legal requirement, but is not necessarily limited to a contractual entitlement. This is confirmed by the provisions of s.27(1)(a), which show that the wages 'properly payable' may not be due under the contract of employment. But the words 'or otherwise' do not, in my view, extend the ambit of 'the sums payable to the worker in connection with his employment' beyond those to which he has some legal entitlement.”(paragraph 43)

Beldam LJ also observed:

“For wages to be 'properly payable' by an employer, he must be rendered liable to pay, either under the contract of employment or in some other way. [Article 59] contains some examples of sums which may be payable, either under contract or because for some other reason the employer is liable to make payment as an addition or supplement to 'wages'. An example of a sum properly payable otherwise than under contract would be a minimum wage payable by order of a wages council. Nor is it difficult to see how a fee, bonus, commission, holiday pay or other emolument referable to employment may be payable otherwise than under the contract of employment. Such payments may be customary or required by collective agreements without express provision being made in a contract of employment.” (paragraph 62)

26. Mr McEvoy referred the tribunal to Kent Management Services Ltd v Butterfield [1992] IRLR 394 and submitted that it is for the claimant to demonstrate that the wages claimed are properly payable to him, within the “reasonable contemplation” of both parties. According to Mr McEvoy, there was no factual basis to permit this conclusion in the instant case and the email of 30 September 2004 from John Heyburn to Terry McGonigal did not create an entitlement for the claimant, whether contractual or otherwise, to be upgraded to SC6 or Senior Executive Officer. Mr McEvoy pointed out that this was acknowledged by the claimant at several junctures in his evidence. At its height, the claimant’s case is that, had he had sight of the email of 30 September 2004 prior to April 2009, this might have had some bearing on his willingness to have progressed an appeal in relation to the outcome of the 2004 Job Evaluation. It did not therefore follow that this email has any bearing or impact on the pay obligations owed to the claimant by the respondent under his contract of employment. Given that this email, which has been at the heart of the claimant’s case, carries no legal significance for the wage obligations of the respondent vis-à-vis the claimant, he submitted that it was plain that the claimant’s claim for unauthorised deductions is without proper foundation in fact or law.

Conclusions

27. (1) Does the tribunal have jurisdiction to entertain the claimant's claim by reason of the time requirement in Article 55 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order")?

The claimant remains employed by the second named respondent and it is clear that the alleged unlawful deduction is of a continuing nature. It therefore constitutes a series of deductions as referred to in Article 55(3) of the 1996 Order and as such the reference in Article 55(2) to the deduction is to the last deduction in the series and time therefore runs from the last payment of wages to the claimant. As held in Group 4 Nightspeed v Gilbert [1997] IRLR 398, time runs from the date on

which the last deduction could have been made in accordance with the contract and the entire series is recoverable. It is not therefore necessary to consider whether to extend time or the question reasonably practicability. We note however that the claimant was unhappy with the process from 2004/05 and certainly had suspicions when he commenced the appeal process. There was no documentation in relation to the informal appeal and therefore the claimant did not know why it was rejected. The claimant clearly could have brought proceedings at an earlier stage but he would not have known of the existence and contents of the email of 30 September 2004 which is self evidently crucial to the decision to bring the claim. It did not however effect any material change to his underlying belief that the procedure was flawed. No criticism can attach to the claimant’s actions thereafter as having acquired this crucial knowledge on 3 April 2009, he submitted his claim form promptly on 29 June 2009.

28. (2) Did an email dated 30 September 2004 from John Heyburn of Belfast City Council to Terry McGonigal create a contractual entitlement for the claimant to be paid as a Senior Executive Officer?

The key question for the tribunal is whether the alleged unlawful deduction of wages is of an amount properly payable to the claimant. It is clear that there was a process involving a job evaluation scheme and the posts in question were evaluated and given marks on two occasions. The initial evaluation undertaken by the claimant’s line manager produced a score of 440. This score was subsequently reduced by the panel to 428. Mr Heyburn’s email suggests that at some stage the claimant's post was scored at least 450. It is clear that the marks went up and down but that ultimately the panel’s view prevailed.

29. The claimant was given the opportunity to appeal but having gone through the pre-appeal process abandoned the appeal. The claimant alleges that there were improprieties in the Job Evaluation process and complains of bullying behaviour towards him but we do not consider these matters to be relevant in a case of unlawful deduction of wages. It was also open to the claimant to have taken a grievance about his alleged treatment. In this connection we note that the claimant was the NIPSA trade union representative and would therefore have been both familiar with such matters and well placed to take the necessary action.

30. The email of 30 September 2004 scored the claimant’s post at a level which equated to 450 at the very least. We can well understand how the late discovery of this document would have heightened the claimant’s suspicions about the independence of the process. However, even if the claimant’s beliefs were entirely well founded this does not in our view mean that the salary that attached to the higher grade was properly payable to him. It is clear from the letter of 1 November 2004 that there was scope for discussion and negotiation about individual scores and we are satisfied on the basis of

Mr Heyburn’s evidence that this is what occurred. The evaluated grade as given in Mr Heyburn’s email was therefore not final word on the subject as the comments made by Mr Heyburn in the email make abundantly clear. In particular, Mr McGonigal was invited by Mr Heyburn to examine the scores, the clear implication being that there would be scope for further adjustment. The email of 30 September 2004 did not therefore create a contractual entitlement for the claimant to be paid as a Senior Executive Officer.

31. (3) Even if the claimant does have a contractual entitlement, can he point to a specified sum or a quantifiable amount for the purposes of Article 45 of the 1996 Order?

It is clear from the case law that the deduction must be quantifiable. The claimant maintains that it is quantifiable because he is at the top of the salary scale. While on one view the loss was quantifiable it has not in fact been quantified beyond the schedule of loss presented on behalf of the claimant at this hearing. Although, the deduction could, no doubt, be quantified, this was not actually done. This does not affect the outcome of these proceedings, however, as even if the deduction was properly quantified we could not be satisfied that it was properly payable to the claimant for the reasons given above. Had we been persuaded that the claimant had established a contractual entitlement to be paid at the higher grade, we would not have been disposed to dismiss the claim on the basis that the claimant had not identified a specified sum or a quantifiable amount and we would have entertained an application for the claimant to be permitted to produce the necessary information.

32. The claim must therefore be dismissed.

Chairman:

Date and place of hearing: 7 – 8 June 2010, Belfast.

Date decision recorded in register and issued to parties: