Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  854/17

 

 

 

CLAIMANT:                          Jacquline Moore

 

 

RESPONDENT:                  Noonan Services Group (NI) Limited

 

 

 

DECISION

The tribunal unanimously finds that the respondent did not make an unauthorised deduction from the claimant’s wages and her claim is therefore dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge Browne      

 

Members:                             Mr I Rosbotham

Mr J Smyth

 

 

Appearances:

The claimant represented herself.

 

The respondent was represented by Mr P Bloch of EEF Northern Ireland.

 

THE RELEVANT LAW AND FINDINGS OF FACT

 

1.         The claimant’s claim appeared to the tribunal to be based upon the provisions of Article 45 of the Employment Rights (Northern Ireland) Order 1996, which states:

 

“Right not to suffer unauthorised deductions

 

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 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”.

 

2.         The claimant has been employed at the University of Ulster as a part-time cleaner for more than seventeen years; in 2013, she was transferred to the respondent in the same job and on the same terms and conditions as before.  The holiday year runs from 1 April each year until 31 March the following year.

 

3.         The claimant, in common with all other staff employed by the respondent, has always been responsible for filling in and monitoring her own leave sheet, and it is her responsibility to ensure that, if she wants to take a period of leave, she has enough days of leave left to cover the whole period of time she takes off.

 

4.         The claimant’s complaint to the tribunal was based upon the 2016-2017 Christmas and New Year period, by which time she had used almost all of her annual leave entitlement.  She did not have enough leave left to include 27, 28, 29 and
30 December, and 2 January, but she took those days off.

 

5.         The respondent did not pay the claimant for the days taken off, which appeared to the tribunal to form the basis for her claim.  The claimant informed the tribunal that it was not really about the money, it was about not being informed by the respondent in advance of taking the leave that she would not be paid for those days.

 

6.         The respondent’s case was that the days’ leave was treated by it as unpaid leave, and that it was the responsibility of the claimant alone to monitor her leave entitlement, a system which she had used for many years.

 

CONCLUSIONS

 

7.         The tribunal noted that Article 45(3) refers to “wages properly payable”.  The tribunal unanimously concluded that the respondent had no contractual or legal duty to pay the claimant for days not worked which were taken as leave by the claimant outside her entitlement; “properly payable” in the opinion of the tribunal could not be interpreted as meaning that the claimant had a legal right to be paid for work that she had not done, or for days when she was absent from work outside her contractual entitlement.

 

8.         As regards the claimant’s complaint that she ought to have been informed by the respondent in advance that she would not be paid for the days taken off outside her entitlement, the claimant did not draw the tribunal’s attention to any contractual or legal basis for the tribunal to make any such finding, and the tribunal could find no such basis for it.

 

9.         The claimant has therefore failed to establish that there was any unauthorised deduction from her wages, and her claim is dismissed.

 

           

Employment Judge:

 

Date and place of hearing:          24 May 2017, Belfast.

 

Date decision recorded in register and issued to parties: