Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1905/15

 

 

 

CLAIMANT:                          Anne Wheavil

 

 

RESPONDENT:                  NIE Networks Ltd

 

 

DECISION ON A PRE HEARING REVIEW

 

The decision of the tribunal is that:-

 

(1)       The tribunal does not have jurisdiction to determine the claimant’s claim for unauthorised deduction of wages, pursuant to Articles 45-59 of the Employment Rights (Northern Ireland) Order 1996; and the claim is therefore dismissed.

 

(2)        For the avoidance of any doubt, if the claimant wishes to pursue her said claim, she requires to do so as a claim for damages for breach of contract in the civil courts.  The tribunal does not have jurisdiction to determine any such contract claim, pursuant to the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, as the claimant remains in the employment of the respondent.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):  Employment Judge Drennan QC

 

Appearances:

 

The claimant appeared in person and was not represented.

 

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy Brett, Solicitors.

 

Reasons

 

1.1      The claimant presented her claim to the tribunal on 17 August 2015, in which she made a claim for shortfall of pay/arrears of pay and other payments, arising from underpayments made to her by the respondent, since the commencement of her employment with the respondent on or about 26 October 1992.  The respondent presented a response to the said claim on 23 September 2015, in which it denied liability for the claims of the claimant. 

 

1.2      At a Case Management Discussion on 14 October 2015, as set out in the record of proceedings dated 16 October 2015, it was agreed, inter alia, that, since the claimant was still employed by the respondent, the tribunal did not have jurisdiction to hear and determine the claimant’s claim, pursuant to the tribunal’s contract jurisdiction, as set out in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.  It was further agreed the claimant’s claim was a claim for unauthorised deduction of wages, pursuant to Part IV of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) and related to payments for shift allowance by the respondent since the commencement of her employment and, in particular, whether she had been properly paid for same.

 

1.3      At a further Case Management Discussion on 11 December 2015, as set out in the record of proceedings dated 17 December 2015, I decided, for the reasons and in the circumstances set out in the said record that a Pre hearing review should be arranged in this matter.

 

1.4      As a consequence, a Notice of Hearing was issued to the parties on 30 December 2015 to consider and determine the following issues at a hearing on 22 January 2016, namely:-

 

“(1)      Whether the tribunal has jurisdiction to determine the claimant’s claim for unauthorised deductions from wages, pursuant to Articles 45 - 59 of the Employment Rights (Northern Ireland) Order 1996?

 

 (2)      If not, is the claimant’s claim required to be determined as a claim for damages for breach of contract in the civil courts?”

 

1.5      Neither the claimant nor the respondent’s representative called any oral evidence.  I was greatly assisted by their detailed oral and written submissions, the documents contained in the agreed “trial bundle”, as amended, for of this Pre hearing review, which included a helpful chronology of events, the many legal authorities and extracts from Harvey on Industrial Relations and Employment Law Volume 1 Section BI, to which both the claimant and the respondent’s representative referred and which are referred to in more detail, in so far as relevant and necessary later in this decision.  At the conclusion of the hearing I reserved my decision.  In the interests of brevity, I have not referred to all the arguments addressed; but, before reaching my decision, I have taken all into account.

 

1.6      Subsequent to the conclusion of the hearing, the claimant wrote to the tribunal on 22 January 2016 in which she stated:-

 

                        “...  At our attendance day at the Tribunal Office, I was given the enclosed chronology by the NIE representative.  I understand you were also furnished with a copy.  I had not had a chance to read through it in any detail before or during that meeting.  I have subsequently added details in the chronology for 1991 when the Department was first set up. ...  The allowance should have changed to 100% in 1992 to reflect the addition of night shift requirement ...”

 

            By letter dated 1 February 2016, the respondent’s representative indicated that they did not object to the additional dates being added in to the chronology but made it clear that it did not accept that the shift allowance in 1992 should have been uplifted to 100%, as contended by the claimant in her said letter dated 22 January 2016.  By letter dated 2 February 2016 the claimant and the respondent’s representative were informed that I intended to treat the claimant’s letter of 22 January 2016 with enclosures, and the respondent’s representative’s letter of 1 February 2016 as additional information to be considered by me, as I considered relevant and appropriate before determining the issue, the subject matter of the pre-hearing review.  Neither objected to this course of action.  In so far as relevant and necessary, I refer to these matters in greater detail later in this decision.

 

1.7      At the outset of the proceedings, it was agreed the respondent was the correct employer for the purposes of these proceedings, having regard to various change of title/TUPE transfers, which have taken place, during the course of the claimant’s employment.

 

Relevant Legislation – Part IV of the 1996 Order

 

2.         Article 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, 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 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.

 

...

 

(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.”

 

            Article 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)),

 

            ...

 

 (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.

 

            ... .”

 

            Article 56

 

“Where a tribunal finds a complaint under Article 55 well-founded, it shall make a declaration to that effect and shall order the employer —

 

(a)        in the case of a complaint under Article 55(1)(a), to pay to the worker the amount of any deduction made in contravention of Article 45,

 

                        ... .”

 

Article 59

 

“(1)      In this Part “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,

 

                        ... .”

 

            There was no dispute between the parties that the claimant, for the purposes of these proceedings was a worker for the purposes of a claim pursuant to Article 45 of the 1996 Order and further that the claimant’s claim was for ‘wages’, pursuant to Article 59 of the 1996 Order.

 

3.         The Provisions of Part IV of the 1996 Order, as set out above are in similar terms to Part II of the Employment Rights Act 1996 (Sections 13 - 27), which applies in Great Britain.  In Northern Ireland, it has long been recognised decisions of the Employment Appeal Tribunal, but also decisions of the County Appeal in England and Wales and indeed, relevant decisions of the Supreme Court in                              non-Northern Ireland appeals, are of highly persuasive authority but are not strictly binding upon this tribunal; but would be generally followed where it is appropriate to do so and, in particular, were the relevant legislation, upon which any such decisions are based, are in the same similar terms.  (See Beaufort Developments (NI) Ltd)  v  Gilbert Ash (1997) NI 142). 

 

            Given the similarity of the legislative provisions and the absence of any relevant decisions of the County Appeal in Northern Ireland, I have referred, as set out later in this decision, to the relevant decisions of the Employment Appeal Tribunal and Court of Appeal in England and Wales and to relevant extracts from Harvey on Industrial Relations and Employment Law.

 

            It was recognised by the parties that, if the tribunal has jurisdiction to consider and determine the claimant’s claim, that issues of time may arise; but it was agreed, as set out in the record of proceedings of the previous Case Management Discussions, referred to above, that any such issue would not be subject of this Pre hearing review and would be considered and determined, if appropriate and necessary, in the context of a substantive hearing.

 

4.1      The parties helpfully agreed a chronology, which was amended, subsequent to the hearing, as referred to previously:-

           

1990   Northern Ireland Electricity Joint Council (Administrative and Clerical Grades) Agreement.

 

1991   The Out of Hours Fault Report Department was first set up.  For approximately one year, the Department did not cover nightshift.  The shift allowance was correctly evaluated at 80%.

 

                        26 October 1992

 

Night shift was introduced to the rota and as additional resources were needed to cover the extra shift the claimant commenced employment at this stage. 

 

In amending the chronology the claimant contended, which is disputed by the respondent, the shift allowance should have been reviewed, taking into account the addition of night shifts, which would have uplifted the shift allowance to 100%.

 

                        1 November 1995

 

                        New staff agreement effective.

 

                        13 March 1997

 

                        Understanding to the company agreement issued.

 

                        1 November 1997

 

                        Mrs Wheavil and others transferred to SX3 (which later becomes Capita).

 

                        1 November 2004

 

Variation to contract involving transfer of work location from Belfast to Craigavon and revised rota.

 

                        1 February 2005

 

                        TUPE transfer into NIE.

 

            In relation to the said variation to contract, dated 1 November 2004, the claimant, as part of her said amendments to the chronology, referred to a relevant letter dated 24 September 2004, which stated, insofar as relevant and material:-

 

                        “... for those who work shift payments with nightshifts going from the rota, the level of shift allowance should drop from 80% to 60% however NIE have agreed to continue this at the higher rate ... .”

 

            Consistent with her contention, on foot of her amendment to the chronology, the claimant contended the letter should have read:–

 

                        “... the level of shift allowance should drop from 100% to 80% ... .”

 

            As she accepted, in the course of her submissions, to have been paid this higher rate of 100%, pursuant to the terms of this letter, this would have had to be on the basis that she would have been previously assessed by the respondent at 100%.

 

4.2      Insofar as relevant to her, the issues, the subject-matter of the pre-hearing review, Northern Ireland Electricity Joint Council (Administrative and Clerical Grades) Agreement June 1990 provided, as follows:-

 

                        “E1 – Statement of Agreed Principles

           

E1a     Within the context that the industry is required to supply electricity at all times, and to maximise efficiency in its operations, the NIJC recognises that it is essential that an employee should be utilised in the most effective way, consistent with the closest possible match between manpower and workload.

 

E1b     Schedule salaries in the NIJC agreement reflect a requirement that staff should work 37 hours weekly between agreed regular daily starting and finishing times on Monday to Friday.  It is however not possible to provide the necessary resources or to cover to meet these aims for staff in certain occupations.

 

Such staff must therefore allow other work patterns eg shift (for an average of 37 hours a week) or work spread over six days Monday – Saturday.

 

E1c     In addition certain NIJC staff may be required to make themselves available outside working hours to work; or to give advice to maintain the service to the consumer; or to ensure the safety of Northern Ireland Electricity’s employees and the safety and security of buildings, property, plant or equipment.

 

E1d     It is accepted that where by virtue of the forgoing obligations variations in work patterns or departures from an employee’s normal hours are necessary there must be matching recognition related to the degree of inconvenience undergone by the employee concerned.  The agreed recognition is set out in the provisions which follow.

 

E1e     The NIJC has agreed that it should be the objective of all concerned to ensure that working outside normal hours is avoided whenever possible, in order to minimise both the interference with an employee’s leisure time and the cost to Northern Ireland Electricity; and that where such working as unavoidable it is planned as far as possible in advance to minimise uncertainty and interference with employee’s domestic and social commitments.

 

E1f      Provisions of this part of the agreement are designed to ensure that, providing certain basic requirements are met, working arrangements which as far as possible take account of both the operational requirements of Northern Ireland Electricity and the preference of the employee’s concern can be agreed locally.  However, if those concerned cannot agree and a difference arises, the NIJC would expect CSCs to settle arrangements strictly in accordance with the provisions of this agreement as amplified by the explanatory notes.

 

...

 

E14 – Organisation of Shift Rotas

 

It should be the responsibility of each Staff Committee to agree working arrangements for each group of shift employees within its sphere of operation and in accordance with the principles set out below:

 

E14a   Rotas may be on the basis of continuous three shift rotation throughout 24 hours, seven days a week; or simple alternating two shift working covering days and evenings, excluding Saturday and Sundays; or some intermediate arrangement.

 

NOTE:            Clause E14a sets out the type of shift rota currently being worked.  Nothing in it is intended to preclude agreed arrangements where these are operationally justified for shifts which are not abutting.  Any such arrangement which operates as a jointly agreed alternative to a work pattern encompassing night shifts or weekend shifts should be regarded as an intermediate pattern for payment purposes.

 

E14b   Subject to Clause E14d below, rotas for continuous three shift working shall be arranged on the basis of three shifts in each 24 hour period. 

 

E14c   Subject to Clause E14d below, shifts shall as far as possible be of equal duration, although minor variation may be agreed locally, for example where this is necessary to fit in with public transport services.

 

E14d   The Northern Ireland Joint Council does not encourage the working of 12 hour shifts; nevertheless recognises that a number of mutually satisfactory local arrangements may exist.  Accordingly three shifts in a 24 hour period may be rearranged as two 12 hours shifts on Saturdays, Sundays and public holidays ...

 

E16 – Shift Allowances

 

A shift employee shall be paid, over and above, the schedule salary for the post, the appropriate allowance as indicated below.  This is expressed as a percentage of the “shift payment” shown opposite the appropriate incremental point in the relevant table in Part F – Remuneration. 

 

E16a   For continuous three-shift rotation throughout the 24 hours, 7 days a week – 100%.

 

E16b   For simple alternating 2 shift working covering days and evenings, excluding Saturdays and Sundays – 60%.

 

E16c   For any intermediate arrangement of shift working falling between               a and b above – 80%.

 

... .”

 

The three shifts are day shift – 0800 to 1600 hours; evening shift – 1600 to 2400 hours; night shift – 0000 hours to 0800 hours.

 

4.3       At the commencement of the claimant’s employment in 1992, her shift pattern was assessed by the respondent as an intermediate shift pattern, pursuant to Paragraph E16c, namely 80%.

 

            The claimant contends that her shift pattern should not have been so assessed but rather she should have been assessed at 100%.

 

4.4       The new staff agreement in 1995 superseded the 1990 Agreement.

 

Insofar as relevant and material, the 1995 agreement, which remains in force, provides as follows:-

 

                        “5.8     Shift pattern payments

 

The allowance for fully continuous shift working involving 24 hour cover 365 days per year shall be as set out on Table 2 in Page 14.

 

The allowance for other work patterns shall be a percentage of the above.  Using the fully continuous three shift working pattern as a firm benchmark, an appropriate percentage shall be jointly discussed and determined locally and submitted to the negotiating committee for ratification.

 

5.9       Change of shift pattern

 

When an employee changes a rostered shift, payment will be in accordance with Table 3 on Page 14.

 

Where a change in rostered shift is made at the request of an employee, no payment will be made to that employee.

 

5.10    Change of shift rota

 

When an employee changes to another shift rota, payment will be in accordance with Table 4 on Page 14.

 

Where a change in shift rota is made at the request of an employee, no payment will be made to that employee.

 

...

 

Shift working

 

Shift pattern payments

 

The percentage (of the payment for fully continuous shift working involving 24 hour cover, 365 days per years) payment to be applied in respect of any given shift working pattern should be determined having regard two factors:

 

            (a)       an unsocial hours calculation (see Appendix);

 

(b)       a ‘felt fair’ factor, ie comparing the result of the unsocial hours calculation against the 100% benchmark for fully continuous shift working involving 24 hour cover 365 days per year.

 

Having regard to these two factors a band of percentages (ie an upper and lower percentage limit) has been established for each broad work pattern.  The actual percentage to be applied within a band of percentages shall then be determined having regard to the extent of the evening shift, night shift and weekend working as appropriate. 

 

The basis of this approach is jointly accepted but it is also recognised that an analysis like this could be approached in more ways than the one proposed, eg:-

 

(a)       the hours for the assessment could be those hours outside 08:00 to 18:00;

 

(b)       agreed overtime premia could be an appropriate method of weighting.

 

It was generally acknowledged that different methods of analysis placed different weighting on the various shifts (days, evenings and nights) and whether these are midweek or weekend shifts.

 

However it was agreed that the following banding shall be used to determine the percentage payment for different patterns.

 

Shift working involving 24 hour cover 365 days per year 100%

 

Shift working between 6.00 am and midnight coving 365 days per year                60 to 80%

 

Shift working involving 24 hour cover Monday to Friday 60%

 

Shift working between 6.00 am and midnight excluding Saturday and Sunday 20 to 40%

 

The shift pattern payment for all shift working involving 24 hour cover 365 days per year has been agreed.

 

For other shift patterns, an appropriate percentage shall be arrived at following weighted comparison of the unsocial hours involved in the pattern using the following weighting:-

 

(a)       one-third time for all hours worked between 6.00 pm and midnight;

 

            (b)       half-time for all hours worked between midnight and 6.00 am;

 

            plus

 

            (c)        half-time for all hours worked on Saturday; and

 

            (d)       single-time for all hours worked on Sunday.

           

For comparison purposes the base (100%) shift pattern payment analysis is based on an individual covering the following 8 hour shifts in a five week period:-

 

                                    ... .”

 

4.5       It may be suggested, in my judgement, the 1990 agreement was not as detailed as the 1995 Agreement.  Both were agreed by the respondent and relevant representatives of the employees.  I am not satisfied there is, for the purposes of determining the issue, the subject-matter of this pre-hearing review any material difference between the terms of the two agreements.  Each agreement required the claimant shift pattern to be assessed in accordance with the terms of the agreement.  The claimant contends that her shift pattern has not been properly assessed during her employment and, in particular, should have been assessed at 100% rather than 80% and she therefore has suffered a relevant loss of shift allowance since the commencement of her employment with the respondent to date.

 

4.6       Both the claimant and the respondent’s representative each sought to illustrate by diagrams, the shift patterns worked by the claimant during the course of her employment.  Insofar as there were any material differences between the parties, other than the manner of illustration, it was not necessary for me to resolve for the purpose of determining this pre-hearing review.  In my judgment, what is significant is not any potential difference in the actual said work patterns worked by the claimant but the difference in approach to assessment by the claimant and the respondent of any such work pattern worked by the claimant under the said agreements and whether such difference in approach to assessment can be determined by this tribunal as a claim of unauthorised deduction of wages.  If the issue of jurisdiction is resolved, then at that stage any such differences will require to be considered in greater detail.

 

Relevant legal authorities

 

5.1      Harvey on Industrial Relations and Employment Law (Harvey) Division B1 “Deduction from Wages” E ‘The meaning of Deductions’ states:-

 

“353.    Once it is established that a payment constitutes wages, it is necessary to ascertain if there has been a deduction from wages ...  Section 13(3) provides that:-

 

‘Where the total amount of any wages paid on any occasion by an employer ... is less that then total amount of the wages properly payable (my emphasis) by him to the worker on that occasion (after deductions, the amount that the deficiency shall be treated as a deduction made by the employer from the worker’s wages’.”.

 

5.2      “Properly payable” has given rise to considerable litigation and, as stated in paragraph 354 of Harvey, the words refer to a legal test not necessarily a contractual entitlement on the part of the worker to the payment (New Century Cleaning Company Limited  v  Church [2000] IRLR 27).  Where the entitlement relied on is contractual, it has been held (see Fairfield Ltd  v  Skinner [1992] ICR 836; Mears Limited  v  Salt [UKEAT/0522/11]) that, in order to decide what is “properly payable”, a tribunal may determine what the relevant term means.  Therefore, tribunals can and do become involved in the construction of contractual provisions, such as remuneration clauses, when determining unlawful deduction claims.

 

5.3      The difficulty, which is central to the issue to be determined in this pre-hearing review, arises from the limitation on the scope of the said legislative provisions as identified by the Court of Appeal in the case of Coors Brewers Ltd  v  Adcock [2007] EWCA Civ 19.  In particular, the Court of Appeal held that, in order for a tribunal to have jurisdiction to hear an unlawful deduction claim, the claim must be in respect of a “significant identifiable sum”.  As set out below, this can be difficult to determine in any particular factual situation. 

 

5.4      The factual dispute at the heart of Adcock was as follows.  The claimants brought claims in respect of the amount they were paid to replace a share bonus scheme after the employers were taken over.  They claimed they were paid less than they were entitled to under an implied contractual right to the bonus and that this was an unlawful deduction of wages under the relevant legislative provisions, referred to previously. 

 

5.5      The claimant’s claims were held by the Court of Appeal to be, in truth, claims for damages by way of compensation for the loss of the chance that, if Coors had put in place a substitute scheme which met the requirements imposed by the claimant’s employment history, the effect of such a scheme, when applied to Coors’ financial performance in 2003, would have been that the claimants received some benefit which, absent such a scheme, they did not receive.  That task the court held was outwith the jurisdiction which, in the case of a claimant whose employment did not come to an end, the 1996 Act conferred on the tribunal.  If and for so long as the claimants remained in Coors’ employment, they had to seek their remedy in the County Court.

 

            In reaching its conclusions, Lord Justice Wall, who gave the main judgement of the Court stated:-

 

“46.     in my judgement, the underlying facts of Delaney  v  Staples are a paradigm of the circumstances in which Part 11 of ERA 1996 is designed to operate.  The employee complains that there has been an unlawful deduction from his wages.  He has not been paid an identified sum.  He makes the claim under Part 11.  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, seems to me, is the proper context both of Delaney and Staples and Part 11 of ERA 1996.”

 

  47.    The answer to the passage on which Mr Basu relied is, in my judgement, to be contained in an earlier part of Nicholls LJ’s judgement at (1991) IRLR 112 at 114, where he says:-

 

                        ‘The Act is, indeed, concerned with unauthorised deductions.  But Section 8(3) makes plain that, leaving aside errors of computation, any shortfall in payment of the amount of wages properly payable is to be treated as a deduction.  That being so, a dispute on whatever ground, as to the amount of wages properly payable cannot have the effect of taking the case outside Section 8(3).  It is for the Industrial Tribunal to determine that dispute, as a necessary preliminary to discovering whether there has been an unauthorised deduction’.

 

48.    This, in my judgement, is saying in more elegant and succinct terms what I was striving to say in paragraph 46 above.  Furthermore, it does not seem to me – for the reason set out below – that the terms of ERA 1996 Section 27(3) affect the position.

 

...

 

51     ... I agree with Chadwick LJ, whose judgement I have had the advantage of reading in draft, that if the scheme put in place by Coors was not a proper implementation of its obligation to its workforce, then the critical question in this appeal is that which I have identified in paragraph 42 above, namely whether the claim for damages which arises from Coors’ failure to perform its obligation can be said to be an identifiable sum, failure to pay which is to be treated as an unauthorised deduction of wages. 

 

52.    In answering these questions, and in particular the critical question identified at paragraphs 42 and 51, I have to say that I preferred the submissions made by Mr Linden.  In my judgement, the highest the case can be put for the claimants is that Coors was under an obligation to put in place a scheme which, properly and fairly operated, was capable of replicating the benefits of the BEPSS scheme.  Which ever way one examines the case, however, the result is that any payment due to the workforce under the 2003 incentive scheme was incapable of quantification in that Delaney v Staples sense.  To put the matter another way, none of the claimants could properly say that on any given date in 2004, let alone the March date operated under the previous scheme, Coors have made an unlawful deduction of a quantified amount from their wages.  For the reasons which Chadwick LJ sets out in his judgement, with which I respectively agree, the claimants remedy (if they have one), sounds in damages for breach of contract, not under ERA 1996 Part 11.

 

53.    I therefore conclude that if the scheme as operated, did not represent fulfilment of Coors’ obligation to create a replacement for the BEPSS, the result in jurisdictional terms is that the claimants would have a loss, but that the amount of that loss was unquantified.

 

54.    Had Mr Basu been able to advance his claim to the tribunal on the basis that there had been a breach of an obligation on the part of the employer to pay a bonus of the specified amount (whether expressed in monetary term or as a percentage of gross earnings) – or even, perhaps a term to be implied by custom and practice – that, every year on 30 March they would receive a bonus of X (whether expressed as £x or as a percentage of basic salary) I think it would be arguable that the claimant was quantifiable, and that, as a consequence, the claimant was justiciable as an unlawful deduction of wages.

 

55.    Mr Basu was however constrained to accept that the claimant could not properly be advanced to the tribunal on that basis.  The fact is that the claimants were unable to quantify the breach, and required the tribunal to do so.  That, in my judgement renders the claim one for damages for breach of contract, as opposed to a quantifiable claim for unlawful deduction of wages.

 

56.      Part 11 of ERA 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 ... however in my judgement to extend it to the present case is a step too far.

 

57.      I am therefore of the clear opinion that the tribunal did not have jurisdiction to entertain the claimants’ claims, and that the EAT was wrong to remit them to another tribunal which, equally, would not have jurisdiction to hear them.  I would therefore allow the appeal on the issue of jurisdiction, and set aside the EAT’s remission of the claims.”

 

            Lord Justice Chadwick stated in his judgment:-

 

“71.     As I have said, I am content to assume for the purposes of this appeal the claimants have claims against the employer company for breach of contract.  But, on a true analysis, those claims are, as it seems to me, claims for damages by way of compensation, for the loss of chance that, if the employer company had put in place a substitute scheme which met the requirement proposed by the claimant’s employment history, the effect of such a scheme, when applied to the company’s actual financial performance for the year 2003, would have been that the claimants receive some benefit which (absent such a scheme) they did not receive.  I have no reason to doubt that, in the context of the claim for damages advanced on that basis, a Court could measure the loss of chance by an appropriate award.  But that task is outside the jurisdiction which (in the case of a claimant whose employment has not come to an end) the legislature has chosen to confer on an Employment Tribunal by the 1996 Act.  I agree with Wall LJ that, if and for so long as the claimants remain in the company’s employment, they must seek their remedy in the County Court.”

 

5.6      As recognised in Harvey on Industrial Relations and Employment Law, Volume 1, Section B1 in Paragraph 355.02:-

 

“The decision in Coors leaves open the important question of how precise the quantification has to be before the Employment Tribunal has jurisdiction.  Wall LJ stated that a tribunal will have jurisdiction in the case of an alleged failure to pay a bonus, even if the bonus in question is expressed is a percentage of gross earnings rather than as a specified sum.  However, that may not be a particularly difficult calculation.  By contrast, the situation in Coors appears to have been one where quantification of the claim with any precision was virtually impossible.  But what is the position where the claims is difficult – as opposed to impossible – to quantify?  In Lucy  v  British Airways [UKEAT/003/08], the Employment Appeal Tribunal stated, obiter, that if a claim is unquantifiable that would take it out of the unlawful deduction jurisdiction, but if the claim was merely difficult to quantify and/or has not been quantified at the time that proceedings are commenced then the tribunal would have jurisdiction pointing out that tribunals are familiar with difficulties of this kind, HHJ Burke QC concluded:-

 

‘While I agree ... the number of different allowances which the claimants might have received, had they continued to be rostered for flying duties, and the different criteria which applied as between the various allowances would or might have made the correct calculation of the present claims very difficult, I conclude that such difficulties did not, of themselves, have the effect in law that the tribunal had no jurisdiction to hear these claims, brought as they are under Part 11 of the 1996 Act.  If they were unquantifiable, save in terms of the loss of a chance, or was the claimed loss in Coors, I would of course take a different view; but they are not unquantifiable; they are merely potentially very difficult to quantify.” 

 

However, in Jandu  v  Crane Legal Limited [UKEAT/0198/13], the EAT (Supperstone J sitting alone) took somewhat different view.  The case concerned an unauthorised deductions claim in respect of a bonus scheme that was calculated by reference to the net profit costs received by a solicitor’s firm for work carried out by the claimant.  Supperstone J concluded that the loss (if any) was “very difficult to quantify” and that “a number of factors be considered in the quantification involved the exercise of some discretion and judgement (my emphasis) as a result of which this is not in my view a case which falls within the category of case described by Wall LJ as a straightforward claim”.  Unfortunately, the reasoning on this point is brief and is not clear how any discretion operated, particularly as the firm’s net profits had already been assessed by an independent costs draughtsman.  In addition, the Lucy decision was not referred to in the judgement.  Although such cases are clearly fact sensitive, it is submitted that the reasoning in Lucy is to be preferred as a matter of general principle and the tribunal should not be too ready to decline jurisdiction.  It may be that the key is whether quantification is largely a matter of judgement rather than a mathematical calculation.  Certainly that is one way to interpret the Jandu decision.’ ... .”

 

5.7      In Kingstone-upon-Hull City Council  v  Schofield and Others, Mrs Justice Slade considered a claim brought by claimants that the respondent had wrongly evaluated their jobs under the applicable job evaluation scheme.  The claimants contended that, properly evaluated, they would have been awarded higher scores entitling them to a higher grade.  They had brought claims for deduction from wages under the relevant section of The Employment Rights Act 1996.  The Employment Appeal Tribunal held that the claimants’ claims were for damages not for sums which were ascertained or ascertainable.  In particular, it held that the exercise of job evaluation or assessing whether or not the job evaluation had been carried out properly was not the determination of an issue of fact nor was it one which the Employment Tribunal had jurisdiction to undertake in determining such a claim and, in doing so, the Employment Appeal Tribunal applied the Coors decision. 

 

5.8      In some recent decisions of the Employment Appeal Tribunal, the relevant law on jurisdiction, in relation to claims for unlawful deduction of wages, has been again reviewed.  In the case of Steel  v  London Borough of Haringey [2012] UKEAT/0394, HH Judge Shanks stated:-

 

“22.     As the judge rightly said the relevant case law on jurisdiction is to be found in Delaney  v  Staples [1991] IRLR 112 and Coors Brewers Ltd  v  Adcock [2007] IRLR 440 ....  I was also referred by Ms Stell to an apparently unreported case in the High Court called Paul Smith  v  Chelsea Football Club plc which itself quoted from a case in this tribunal called Lucy  v  British Airways.  It seems to me that the law is clear and that recitation of passages from these decisions is unnecessary.  A claim is within the jurisdiction provided by Part 11 if it is for an identifiable sum of money properly payable in connection with a workers employment on a particular occasion.  It is not within that jurisdiction if it is properly categorised as a claim for damages for breach of contract or some other obligation, even if the claim clearly arises in connection with a worker’s employment (eg a claim for damages for personal injuries suffered at work or for wrongful dismissal or other breach of an employment contract).  Although Part 11 is essentially designed to provide a swift and summary procedure for straightforward claims where the employee can point to a quantified loss, a claim within the jurisdiction may nevertheless throw up substantial issues of fact (including as to quantification) which the Employment Tribunal must, if necessary, resolve.”

 

            On the facts of the case, the Employment Appeal Tribunal held, not without some difficulty, that the claimant was relying on an existing effective job evaluation which entitled her to be paid accordingly and therefore was within the jurisdiction of the tribunal; albeit the Employment Tribunal made it clear that, insofar as the claimant was making an alternative claim based on the proposition that there ought to have been such an evaluation, the latter claim would have been outside the tribunal’s jurisdiction. 

 

5.9      In Traditions Securities and Futures SA  v  Mouradin (2009) EWCA Civ 60, the Court of Appeal held that the tribunal’s jurisdiction was engaged in a case involving a declared, quantified discretionary bonus.  This was in contrast to Coors where the claim related, as set out previously, to loss of benefits under a profit share scheme but where the loss was unquantified and therefore the claim lay in breach of contract:-

 

“16.     Notwithstanding these submissions there is no dispute between the parties that if the respondent’s claim is in reality a claim for unquantified damages for breach of his contract of employment then the tribunal does not have jurisdiction to entertain the claim.  To succeed on the issue of jurisdiction the respondent has to have been owed a quantified sum of money by way of wages which he asserts has not been paid to him.”

 

On the particular facts of the case, the company maintained that the sum could not be quantified because the amount of the claimant’s bonus was dependent upon the exercise of discretion expressly provided for in the contract of employment.  It would appear that, crucial to the Court of Appeal’s decision that jurisdiction was engaged by the tribunal, in a case involving a declared quantified discretionary bonus, was the unchallenged finding of fact by the Employment Tribunal.  It had found, although the relevant clause in the contract of employment, stated that the amount of the bonus would be divided in such amount as the respondent considered appropriate “in consultation with the Chief Executive Officer whose reasonable decision will be final” the Employment Tribunal had found, as a fact “I am satisfied that there has never been any checking of the bonuses in relation to the claimant’s Desk and that the apportionment has always been determined by the claimant at his absolute discretion.”  On the above finding of fact, the Court of Appeal accepted that the employer had exercised his discretion to award the bonus distribution as determined by the claimant and payment of the quantified sum calculated in accordance with the contract was therefore due and owing to the claimant.  Further, once a bonus has been declared in cash terms it was properly payable under Section 13 of ERA 1996 and it was irrelevant that the employee had a discretion how that payment was to be made, whether in cash, bank transfer or otherwise.  The Court of Appeal also confirmed that, in order to decide whether the claimant was in fact making a claim for quantified or unquantified sum, the Employment Tribunal was both entitled and obliged to make certain findings of fact.  That would seem to be consistent with the judgement of Wall LJ in Coors that the fact that an unauthorised deductions claim raises disputes of fact is not in itself a power to jurisdiction.  This decision was noted with approval by the Employment Appeal Tribunal in Somerset County Council  v  Chambers [2013] UKEAT/0417.

 

5.10    In Allsop  v  Christiani and Nielsen Ltd (in administration) UK EAT/0241/11, Cocks J observed that Part 11 ERA regime was:-

 

                        “... designed for straightforward claims where the employee can show that he has not been paid quantified or quantifiable sum is properly due to him under his contract.  I cannot be used as the vehicle to advance claim for damages for breach of contract, consequent, for example, upon the non-exercise or allegedly capricious exercise of a contractual discretion.”

 

5.11    The claimant’s claim of unauthorised deduction of wages was held to be, in substance, a claim for changes for breach of contract and the Tribunal did not have jurisdiction to entertain it.  In Traditions Securities and Futures SA,                          HH Judge Clark, whose judgement had been approved by the Court of Appeal, held at Paragraph 15:-

 

                        “The critical point which emerges from those cases, particularly Adcock, is that a claim under Part 11 is not appropriate where recovery of an unquantified sum is sought; that is a claim properly brought for breach of contract and where employment is continuing that must lie in the Civil Courts not the Employment Tribunal.”

 

5.12    In Kingstone-upon-Hull City Council  v  Schofield and Others [2012] UKEAT/616, Mrs Justice Slade after referring to the above authorities, concluded on the facts of that particular case that a claim based on an assertion that a job had been inaccurately regraded to too low a grade in a job evaluation exercise, resulting too low a pay rate, was a claim for damages and, in particular, was not a claim for an identifiable amount and therefore was outside the jurisdiction of the tribunal’s under Part 11 of the 1996 Act.  She also held that resolution of a dispute of the value to be attributed to the claimant’s job was not an issue of fact but a question of judgement and therefore any claim by the claimant fell outside the jurisdiction of the tribunal.

 

6.1      It is hard not to have sympathy for the claimant.  She is a litigant-in-person, who cannot see any reason why the tribunal cannot consider and determine her claim, pursuant to Part IV of the 1996 Order, as she considers that any loss of shift allowance which she has suffered from the commencement of her employment is properly payable to her by the respondent and should therefore fall within Articles 45 – 59 of the 1996 Order. 

 

            I have referred, in some detail, in Paragraph 5 of this decision to a number of legal authorities which, of course, all depend on the particular facts of the said cases.  Indeed, in considering the dicta set out in Paragraph 5 of this decision, it is sometimes difficult to see where the line has been drawn, on the particular facts, between a claim which must be determined in the County Court and a claim which can be brought in the tribunals, pursuant to Part IV of the 1996 Order. 

 

6.2      However, not without some hesitation, I have come to the conclusion that the claimant’s claim is not for a significant identifiable sum (see Coors Brewers Ltd  v  Adcock).  In my judgment the claimant, in essence, is saying that the respondent has wrongly assessed her shift pattern under the relevant agreements and, due to this wrong assessment, she should have been assessed at 100% since the commencement of her employment and not 80%.  In those circumstances, this is therefore not a claim which falls within the category of case described by Wall LJ in Coors Brewers Ltd ‘as a straightforward claim’.  In my judgment, it is a claim, by the claimant to determine an alleged wrong assessment by the respondent, which is more properly categorised as a claim for unquantified damages for breach of contract (see further Traditional Securities and Futures SA  v  Mouradin [2009] EWCA Civ 60, and Steel  v  London Borough of Haringey [2012] UKEAT/0394).  It is not for me therefore to determine whether the respondent was wrong to so assess the claimant’s shift pattern.  That will be for a Judge in the Civil Court, if the claimant decides to proceed with her claim in the Civil Court as a claim for breach of contract.  Resolution of such a dispute between the claimant and the respondent in relation to the proper assessment of the claimant’s shift pattern under the said agreements is not an issue of fact but rather a question of judgment and therefore any such claim falls outside the jurisdiction of the tribunal (see further Kingstone-upon-Hull City Council  v  Schofield and Others [2012] UKEAT/0616).

 

7.1      In the light of the foregoing, I therefore have decided that the tribunal does not have jurisdiction to determine the claimant’s claim for unauthorised deduction of wages, pursuant to Articles 45 – 59 of the 1996 Order; and the claim must therefore be dismissed. 

 

            Further, if the claimant wishes to pursue her said claim, she requires to do so as a claim for damages for breach of contract in the Civil Courts.  This tribunal does not have jurisdiction to determine any such contract claim, pursuant to the Industrial Tribunals Extension of Jurisdiction Order ) Northern Ireland) 1994, as the claimant remains in the employment of the respondent.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:          22 January 2016, Belfast 

 

 

Date decision recorded in register and issued to parties: