Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02528_10IT.html
Cite as: [2010] NIIT 02528_10IT, [2010] NIIT 2528_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2528/10

CLAIMANT: Joy Hamilton

RESPONDENT: Health and Safety Executive of Northern Ireland

DECISION

The decision of the tribunal (Chairman sitting alone) is that there has not been any unlawful deduction from the claimant’s wages and the claimant’s claim is dismissed.

Constitution of Tribunal:

Chairman (Sitting Alone): Ms Julie Knight

Appearances:

The claimant presented her own case.

The respondent was represented by Mr Michael Potter Barrister-at-Law instructed by the Departmental Solicitor’s Office

Issue

1. The issue to be determined by the tribunal was whether there had been an unlawful deduction from the claimant’s wages by the respondent after her return to the Northern Ireland Civil Service from a secondment post.

2. During the hearing Mr Potter BL indicated that the respondent no longer asserted that the claimant had failed to comply with the statutory grievance procedures and accepted that the tribunal had jurisdiction to hear the claimant’s claim.

Evidence

3. The claimant gave evidence on her own behalf and Mr Dermott Breen gave evidence on behalf of the respondent. The tribunal was referred to various documents contained in bundles prepared by the parties.

Facts

4. The claimant Joy Hamilton commenced employment with the respondent (“HSENI”) on 14 February 2000. She took up a post with the Northern Ireland Assembly under a three year secondment arrangement on 22 July 2002. The conditions of the claimant’s secondment were set out in a memorandum to her dated 25 June 2002 from a Mr T M Blacker of HSENI. Under the terms of the secondment the claimant remained an employee of HSENI and a member of Northern Ireland Civil Service (“NICS”). At the end of the period of secondment she had the right to return to the Northern Ireland Civil Service. The claimant returned to HSENI temporarily during the suspension of the Northern Ireland Assembly in October 2002 and resumed her Assembly post in February 2007.

5. The claimant’s post in the Northern Ireland Assembly was equivalent to EOII and as such was subject to the terms of Circular CSC5/00 which set out changes to the rules on secondment for NICS staff. Paragraphs 7, 8 and 9 of CSC5/00 made interface arrangements for staff returning to the Northern Ireland Civil Service which essentially provided that after secondment there should be no financial loss to the employee on transfer back to NICS and that an individual transferring on higher pay that is available within the department would retain their pay under the normal marked time rules.

6. CSC5/00 was superseded by a further circular (2/O1) issued by the Central Personnel Group on 8 May 2001 which provided that paragraphs 7 – 9 of the CSC5/00 would no longer apply to Clerical Supervisory EOII posts and instead returning employees would be assimilated to a point on the pay range for the higher grade calculated under normal progression arrangements. The 2001 circular was not referred to in Mr Blacker’s memo to the claimant.

7. On 23 May 2005, Lorna Brown, Deputy Personnel Officer with HSENI, sent a memo to the claimant concerning her current secondment which was due to expire on 22 July 2005. She advised the claimant that it had been decided to offer her an extension to her current secondment for a period of up to 2 years with effect from 23July 2005. This confirmed that the terms and conditions of her original secondment would continue to apply during the extended period but went on to say: “Furthermore I note that included in the terms of your original secondment it was stated that provided you completed the three year secondment as a clerical supervisor to a satisfactory standard, at the end of the period you would retain the equivalent higher grade associated with this ie Executive Officer II. I can now confirm that with effect from 22 July 2002 your promotion within the Northern Ireland Civil Service is substantive. As the interface arrangements described in paragraphs 7-9 of the Annex to CSC5/2000 do not apply. If you return to HSENI CS you will be assimilated to a point on the pay range for the higher grade calculated under normal progression arrangements as if you had remained in the Northern Ireland Civil Service”. The claimant confirmed by memorandum also dated 23 May 2005 her acceptance of the offer of extension made. The claimant’s case was that she had not read the memo properly before accepting the terms of the extension and felt that the contents of memo was misleading.

8. In 2009 the Northern Ireland Assembly asked the claimant (and other secondees from NICS) to make a decision either to resign from the Northern Ireland Civil Service and remain with the Assembly or to return to the Northern Ireland Civil Service. On 6October 2009 the claimant indicated to HSENI that she intended to return to the Northern Ireland Civil Service.

9. On 20 August 2009 Mr Adrian Harris of HSENI wrote to the claimant advising her that she would return to the Northern Ireland Civil Service as an EOII and that her salary would be treated under the conditions of CSC5/00. The claimant responded by letter dated 6 October 2009 confirming it was her intention to return to a post in the Northern Ireland Civil Service and requested details of her salary at the point of return to the Northern Ireland Civil Service. A colleague of the claimant informed her that she may not be able to retain her NI Assembly salary upon her return to HSENI. She told the tribunal that she reviewed the offer of the extension from Ms Brown and was “horrified” to see the statement that Paragraphs 7-9 of CSC5/00 were no longer to apply. The claimant wrote to Mr Harris on 2 November 2009 requesting clarification on this point and he subsequently confirmed to her, after making enquiries, that CSC5/00 did not apply as it had been superseded by Notice 2/01, a copy of which he then provided to the claimant.

10. The claimant raised this matter by letter dated 24 November 2009 to Mr Alan Lamont Establishment Office and requested that she be allowed to return to HSENI as per CSC5/00. She contended that she had no reason to believe the terms of her secondment had changed although she accepted that the exclusion of Paragraphs 7-9 were referred to in the offer of extension memo on 23 May 2005. Mr Lamont responded to the claimant on 26 November 2009 asking her to continue to liaise with the Human Resources team at HSENI regarding the terms of her secondment and her return to the Northern Ireland Civil Service and that she should raise any concerns or query about her return with them. He noted that Mr Harris had provided her with a copy of Notice 2/01 setting out that paragraphs 7-9 of the Annex would not apply to returning staff and that this had been clearly communicated to her in the secondment letter from Lorna Brown in May 2005.

11. The claimant sent a copy of her correspondence with Mr Lamont to Mr Harris and on 4 December 2009 the Head of Human Resources, HSENI Directorate wrote to the claimant that there was no discretion to step outside the terms of the circular 2/01. The claimant was given an opportunity to reconsider her decision as to whether to remain with the NI Assembly or to return to HSENI following receipt of this decision. The claimant subsequently indicated her intention to return to HSENI and was assimilated back to NICS on a salary lower than her final salary in the Northern Ireland Assembly which was £22,988.00 pro rata in accordance with the arrangements set out in circular 2/01.

12. The claimant lodged an originating claim with the Office of the Industrial Tribunals and the Fair Employment tribunal on 20 October 2010 complaining that there had been ongoing unlawful deductions from her wages. The respondent disputed that there had been an unlawful deduction from the claimant’s wages, contending that there was a variation of the terms and conditions of the secondment in May 2005. However the respondent apologised to the claimant at the Hearing that she had been provided with erroneous information concerning her terms and conditions by both Mr Blacker and, in his initial letter, Mr Harris.

The Right not to suffer Unauthorised Deductions from Wages

13. Article 45(1) of the Employment Rights (Northern Ireland) 1996 Order provides that 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.

Article 45(2) states that 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 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.

Conclusions

14. The claimant must show that she had a contractual right to return to the HSENI on the interface arrangements contained Paragraphs 7-9 of CSC5/00 in order to succeed in her claim that there have been unlawful deductions from her wages. I am satisfied on the facts that prior to 23 July 2009 that these paragraphs did apply to the claimant’s secondment as per the terms offered by Mr Blacker, which were accepted by the claimant. However I am also satisfied that as from 23 July 2005 there was a variation of the terms and conditions of the secondment. The interface arrangements which applied when the claimant decided to return to HSENI are those contained in the offer of extension made to the claimant in the memorandum from Ms Brown dated 23 May 2009. I am satisfied that there is no ambiguity in the terms of this memo which clearly states paragraphs 7-9 of CSC5/00 no longer apply and sets out clearly how her pay will be calculated upon her return to NICS at the end of her secondment. The claimant accepted this offer of the extension of her secondment post which effectively varied the terms and conditions of the secondment arrangements. I am satisfied that any confusion on the part of the claimant has arisen because of her admitted failure properly to read the terms of the extension offered.

15. I conclude therefore that the claimant did not have a contractual right to be paid at a level equivalent to her final NI Assembly salary upon her return to HSENI and that there has been no unlawful deduction from wages.

16. I therefore dismiss the claimant’s claim in its entirety.

Chairman:

Date and place of hearing: 18 January 2011 Belfast

Date decision recorded in register and issued to parties: