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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Thompson v Western Health and Social Care... [2012] NIIT 00425_12IT (25 September 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/425_12IT.html
Cite as: [2012] NIIT 00425_12IT, [2012] NIIT 425_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 425/12
CLAIMANT: Robert Thompson
RESPONDENT: Western Health and Social Care Trust
DECISION
The unanimous decision of the tribunal is the claimant’s claim of unlawful deductions from wages is dismissed.
Constitution of Tribunal:
Chairman: Mrs A Wilson
Members: Mr J Patterson
Mr P Killen
Appearances:
The claimant appeared in person. He was not represented.
The respondent was represented by Mr Eamon McArdle, Barrister-at-Law, instructed by Business Services Organisation.
EVIDENCE
1. The tribunal considered the claim form, the response, documentation in prepared bundles produced to the tribunal in so far as they were referred to by the parties, the oral testimony of the claimant and of Mrs Monica Smith for the respondent together with the submissions of both parties.
THE CLAIM AND THE RESPONSE
2. The claimant claims that he suffered unlawful deductions from his wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 [“the 1996 Order”]. It is his case that unlawful deductions were made from his wages and that such deductions were made because he had “submitted a public interest whistle blowing submission” to his employer. It is accepted by the respondent that deductions were made from the claimant’s wages but it is their case that these deductions were not unlawful by reason of the fact that they were excepted deductions within the meaning of Article 46 of the 1996 Order. It is their case that the deductions complained of were made for the purpose of reimbursing the respondent in respect of an overpayment of wages to the claimant and that in these circumstances the tribunal has no jurisdiction to consider the claim.
THE LAW
3. The tribunal considered the following provisions of the Employment Rights (Northern Ireland) Order 1996 [the 1996 Order]:-
Article 45 which provides that it is unlawful for an employer to make deductions from an employee’s wages unless that deduction is authorised by statute, by contract or by the employee’s consent, Article 46 which provides that a deduction from wages, the purpose of which is to recover an overpayment of wages made by the employer to the employee, is not unlawful for the purposes of Article 45 and Article 55 which provides that an employee may present a complaint to an Industrial Tribunal that his employer has made a deduction from his wages in contravention of Article 45.
4. The tribunal considered SIP (Industrial Products) Ltd v Swinn [1994] UKEAT 279/93 and Sunderland Polytechnic v Evans [1993] EAT 334/92.
5. If it is established that the deduction which was made from the claimant’s wages was for the purpose of recovering an overpayment of wages made to him by the respondent, then that deduction is not unlawful for the purposes of Article 45 of the 1996 Order and as a consequence the tribunal does not have jurisdiction to consider the matter.
FINDINGS OF RELEVANT FACTS
6. The claimant has been employed by the respondent as a Nursing Assistant based at Gransha Hospital since 1 February 1980. His monthly salary regularly comprises an element of basic pay in respect of his regular working hours and an uplifted amount in respect of overtime worked. He is paid monthly by direct payment into his bank account and he receives accompanying monthly pay slips which explain his earnings and deductions from those earnings. Regular deductions include tax, national insurance and superannuation contributions. By reason of varying amounts of overtime worked dependant on the claimant’s shift pattern, the claimant’s pay differs from month to month.
7. In or around 2004 the claimant together with his peers became entitled to a pay settlement following a health service salary review undertaken in the context of the Agenda for Change initiative ("the Agenda for Change settlement"). This negotiated settlement included an element of pay relative to special duty payments accrued during periods of sickness absences to which the claimant was entitled. The claimant's entitlement arose because he had a number of absences from work by reason of a work related illness between July 2005 and July 2006 during which periods his pay was reduced. He became entitled to the difference between his reduced pay and his full pay in respect of these periods.
8. By reason of the delay in calculating the amount of pay owing to the claimant following the Agenda for Change settlement and the consequent delay in discharging the arrears of pay due to him on foot of this settlement, the claimant instituted proceedings for recovery in the Small Claims Court in June 2007. Based upon his own calculations, he claimed the sum of £1,500.00 to include pay arrears and a court fee in the sum of £62.00. His claim was successful and a Decree in a Small Claim Action in the amount of £1,500.00 issued on 19 November 2007. The claimant received a cheque from the respondent dated 5 December 2007 and he accepted this in full and final settlement of his claim in respect of the Agenda for Change settlement against the respondent. He also received a pay advice slip giving a breakdown of his gross and net entitlement (£1,714.81 and £1,176.87 respectively).
9. In June 2008 the claimant received a payment of £1,714.81 gross amounting to £1,142.34 net in his salary. At this time his colleagues were paid their respective Agenda for Change settlement entitlements. It is the respondent's case that the sum paid to the claimant was paid in error and represented a duplicate payment of the Agenda for Change settlement already paid in December 2007.
10. The Respondent wrote to the claimant in or about November 2008 notifying him of the overpayment and indicating that recovery of the overpaid sum would be sought. On 3 December 2008 the respondent wrote again seeking recovery of the sum of £1,142.34 and a series of letters from the respondent seeking such recovery followed on 19 January 2009, 6 December 2010 and 24 February 2011. In response to a further letter dated 17 August 2011, the claimant responded by letter dated 9 September 2011 offering payment of the sum claimed by way of small monthly installments.
11. The claimant's offer was rejected by the respondent in that the monthly sum offered was too low. Deductions from pay of an increased amount were commenced from the claimant's salary. An initial deduction of £126.98 was made in November 2011 followed by eight payments of £126.92.
12. The tribunal accepts the evidence of Mrs Smith that the payment which the claimant received in his June 2008 salary represented a duplicate payment of the Agenda for Change settlement already paid to him on foot of the Small Claims Court decree. Mrs Smith has been the pay roll manager for the respondent for the past three years and prior to that was the pay roll team leader for some 20 years. The tribunal find her to be a reliable witness and knowledgeable in terms of pay roll matters.
13. The tribunal accepts Mrs Smith's evidence that the details contained on the invoice included within the respondent's bundle at Part B, page 13 provides a breakdown of the claimant's entitlement (£1,714.81 gross amounting to £1,176.87 net) following the Agenda for Change settlement. A sum (£1,500.00) to include this entitlement was paid to the claimant following his Small Claim's Court action. This sum was paid by way of a cheque in December 2007 and at the same time the claimant received a pay advice slip relative to his settlement recording his gross entitlement at £1,714.81 and his net entitlement at £1,176.87.
14. The tribunal find on the balance of probabilities that the claimant recognised in June 2008 on receipt of his pay slip that a duplicate payment in respect of his Agenda for Change entitlement had been made. His June 2008 pay slip records a gross payment of £1,714.81 albeit against a code labeled tax/sup (001). It transpires that the code applied indicates that the sum to which it is applied is subject to deductions for tax and superannuation.
15. In making the above finding the tribunal has taken into account the evidence of Mrs Smith to the effect that the claimant was consistently diligent over the period of his employment in raising queries relative to the calculation of his pay and was regularly in contact with the pay roll department regarding such issues as and when they arose. On occasions his queries concerned minor discrepancies. The claimant was punctilious in calculating his entitlement to pay arrears for the purposes of his claim to the Small Claims Court and undertook considerable research and engaged in complex calculations for that purpose.
16. The tribunal has also taken into account the fact that the claimant’s colleagues were paid their Agenda for Change entitlement at this time and are satisfied on the balance of probabilities that the fact that long awaited payments were made was discussed amongst staff. The tribunal has also taken into account the fact that the claimant wrote to the respondent in September 2011 offering repayment by installments (albeit that his offer invited discussions regarding monies which he felt may be owing to him by the respondent).
17. The tribunal accepts the point made by the claimant that his pay slips did not clearly reflect how his salary was calculated and that he had some difficulty in differentiating the various components of his pay. However the tribunal is satisfied that when such difficulties arose he sought and received clarification from pay roll section.
18. The tribunal regards it as unfortunate that the error in pay remained unnoticed on the part of the respondent for a period of months due to a breakdown in communication within the respondent organisation. The tribunal find it surprising that once the fact of the overpayment became known that efforts to seek recovery were sporadic and not consistently followed through. In particular there was an interval between January 2009 and December 2010 during which the claimant appears to have heard nothing from the respondent.
19. However notwithstanding these concerns the tribunal is satisfied that the deductions in pay suffered by the claimant between November 2011 and July 2012 were deductions made for the purposes of recovery of an overpayment of wages within the meaning of Article 45 of the 1996 Order and as such were not unauthorised deductions for the purposes of the Order. Consequently the tribunal has no jurisdiction in this matter and the claim is dismissed.
Chairman:
Date and place of hearing: 23 August 2012, Londonderry.
Date decision recorded in register and issued to parties: