Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2394/14

 

 

 

CLAIMANT:                      David Gerard Higgins

 

 

RESPONDENT:                Randox Laboratories Ltd

                                       

 

 

 

DECISION

 

The decision of the tribunal is that the claimant is entitled to a payment of £161.88 for the reasons set out in the conclusions.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Crothers

 

 

Appearances:

 

The claimant was present and represented himself.

 

The respondent was represented by Ms E Brown, Solicitor of Randox Laboratories Ltd.

 

 

The Claim

 

1.               The claimant claimed that he was owed an amount of £161.88 in respect of an unlawful deduction from wages.  The respondent denied his allegations in their entirety.

 

Sources of Evidence

 

2.               The tribunal heard evidence from the claimant.  The respondent did not call any witnesses.  The tribunal also considered relevant documentation.

 

 

Findings of Fact

 

3.               The following statement of background facts had been forwarded to the tribunal by Randox’s Solicitor as having been jointly approved by the parties:-

 

(1)           (i)     The Claimant commenced employment with the Respondent on 4 October 2010 and tendered his resignation by way of email on 15 August 2014 with his last day of employment being 11 September 2014.

 

(ii)    The Claimant was required to obtain a visa for Iran, for the purposes of attending and carrying out work in Iran.  The Claimant was allowed time off, classified as a Business Day [on] 11 June 2014 to travel to Dublin to secure the visa in person.  A visa was issued on that day and was valid until 9 September 2014.

 

(iii)    The date of travel at the time that the visa was issued was unknown, but the parties were aware that once notification of a suitable date was made available to the Respondent that the Claimant would be attending Iran as soon as possible thereafter in accordance with the Respondent’s Travel Policy.

 

(iv)   Notification of the travel dates were confirmed to the Claimant on 27 August 2014, with the view of the Claimant departing for Iran on 1 September 2014.  The Claimant stated that he would travel if he received his bonus for the trip.  This suggestion was not accepted by the Respondent.

 

(v)    The claimant did not attend Iran, the visa was not used and it subsequently expired.

 

(vi)   The sum of £161.88 was deducted from the Claimant’s final salary on 26 September 2014 in accordance with his Contract of Employment and the practices adopted by the Respondent.  The Claimant was made aware of this at a meeting between him and Jolene Jamison and Eric Wee of the Respondent on 10 September 2014.  The Claimant expressed his dissatisfaction with this course of action, but the matter was not pressed any further until the claimant issued proceedings.

 

(2)      In addition, the tribunal made the following findings of fact:-

 

(i)          It was not disputed that the amount in question, although small, involved complex legal principles.  It was also not disputed that the amount sought by the claimant was paid by the respondent to a third party.  The tribunal is satisfied that the claimant may not have gone on the trip had he been specifically told that it would not involve a bonus payment for him.  The tribunal is also satisfied that the claimant had indicated to the respondent that a travel date of 1 September 2014 was not suitable for him. 

 

(ii)        The claimant’s contract, signed by him on 3 March 2011, contains the following clause, which was relied on by the respondent to resist his claim:-

        “The Company has the right to deduct from your pay any sum which you owe to the Company including without limitation, any overpayment of pay or expenses, loans made to you by the company, or any other item identified in this Statement and/or the Employee Handbook as being repayable by you to the Company”.

 

(iii)       The claimant’s argument was that the clause could not be interpreted to cover the cost of a visa.  The respondent, in paragraph 15 of its response asserted that the claimant owed the monies for the visa to the respondent on the basis that it was incurred for the purpose of sending him to Iran and that he had failed to attend without good reason.  The claimant made the case in his evidence before the tribunal, that following the meeting on 27 August 2014 he formed the view, notwithstanding the fact that he had already acquired a visa to travel to Iran, that the respondent had in effect decided not to send him.  He denied that any travel booking had been confirmed.  He had already tendered his resignation on 15 August 2014 with four week’s notice, which he was expected to work.

 

(iv)       After the evidence had concluded the claimant was afforded some time to discuss the matter with the Labour Relations Agency, and the respondent’s Solicitor was afforded some time to prepare her submissions, as she did not appear to have considered Part IV of the Order in any detail.

 

The Law

 

4.              The law in relation to unauthorised deductions is contained in Part IV of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). 

 

Submissions

 

5.              The claimant did not wish to make further submissions.  Ms Brown relied on Article 45(1)(a) of the Order together with Article 46(1)(b) and Article 46(4)(a).  These provisions state:-

 

          “45-(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 ...

 

46-(1)  Article 45 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of - ...

 

                    (b)    An overpayment in respect of expenses incurred by the worker in carrying out his employment,

 

        Made (for any reason) by the employer to the worker ...

 

(4)    Article 45 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established –

 

(a)        In accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing ...

 

and under which the employer is to deduct and  pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person”.

 

Conclusions

 

6.              The respondent was relying on the contractual clause to sustain an argument under Article 46 of the Order, which is entitled “Excepted Deductions”, that the purpose of the deduction was the reimbursement of the employer in respect of an overpayment  of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker.  The tribunal is satisfied that such an argument is unsustainable as the amount involved was paid by the respondent to a third party for a visa.  The tribunal is not satisfied that the terms of Article 46(4) assist the respondent in its argument although that provision is significant in specifically referring to payments to a third party, albeit in an entirely different context to the circumstances of this case.  The tribunal is therefore satisfied that the amount involved is not owed by the claimant to the respondent, that on a proper interpretation of the clause relied on in the claimant’s contract the respondent cannot rely on Article 45(1)(a) of the Order, and that an unlawful deduction has been made by the respondent.  The claimant is therefore entitled to the sum of £161.88.

 

7.               This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  20 January 2015, Belfast.                

 

 

Date decision recorded in register and issued to parties: