Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2776/16

 

 

 

CLAIMANT: Duncan Smith

 

 

RESPONDENT: Noonan t/a Noonan Services Group (NI) Ltd

 

 

 

DECISION

The Industrial Tribunal does not have jurisdiction to determine the claimant's unauthorised deduction from wages claim under Article 55 of the Employment Rights (Northern Ireland) Order 1996. The claimant's claim is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Bell

 

Appearances:

 

The claimant was self-represented.

 

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

 

 

1. The claimant in his claim complained that he had suffered an unlawful deduction from wages arising out of the respondent discontinuing its practice, after four years of paying him for 12 rather than 11.5 hours per shift worked.

 

2. The respondent in its response resisted the claim and contended that it was entitled to pay the claimant according to his statement of terms and conditions of employment.

 

THE ISSUES

 

3. The preliminary issue for the tribunal was as follows:-

 

(1)           Has the tribunal jurisdiction to determine the claimant's unlawful deduction from wages claim? That is:

 

(i)         Is it possible to determine the claimant's claim without having to engage in construction of his contract of employment with the respondent? If not,

 

(ii)        Does the tribunal have jurisdiction to construe or construct the terms of the contract relied upon?

 

EVIDENCE

 

4. The tribunal considered the claim, response, agreed bundle of documentation and written witness statements of the claimant and Brian Timothy Jones.

 

RELEVANT FINDINGS OF FACT

 

5. The claimant commenced employment with the respondent (formally "Resource") on 21 February 2011, his employment is continuing.

 

6. The respondent provided the claimant with a statement of main terms and conditions of employment at the start of his employment which provides:-

 

(1)           Under "Place of Work",

 

Given the nature of our business, it is sometimes necessary to transfer people on a temporary or permanent basis to another location. Should the need arise, consideration will be given to individual circumstances where possible.

 

(2)           Under "Working Hours and Status of Employment",

 

Your hours of work are anticipated to be 42 hours per week - dependant on site rota.

 

(3)           Under "Pay",

Your commencing hourly rate of pay is £8.29 and thereafter as itemised on the payslip which you receive with your pay.

 

(4)           Under "Hours of Work",

 

•          You may also be expected to work any system of work or shift pattern that the company may notify you of from time to time.

 

•          It is expressly part of your contract of employment that you must work the number of hours required to fulfil the requirements of your position. It is further expressly part of your contract that the company has the right to reduce your hours to any given number for any period of time which will then become your normal hours of work until further amended.

 

•          At any time that you are requested to work in excess of the notified hours (which are subject to change as set out above at any time) you will be paid the appropriate rate per hour.

 

•          The company will at all times endeavour to give you as much notice as is reasonably practicable of any change in your working hours.

 

7. The claimant during the first four years of his employment until he was temporarily moved in April 2015 by the respondent from Bangor to work in Belfast, received payment for a half hour meal break during his 12 hour shift and pay received by him was on average equivalent to having worked for 42 hours per week.

 

8. During his temporary move to Belfast the claimant was not paid for the half hour meal break during his 12 hour shift and so received payment for 11.5 hours per shift.

 

9. When the claimant returned to work in Bangor on 4 August 2015 he expected the practice of being paid for the half hour meal break to recommence, but this did not happen despite him challenging the respondent on this. The claimant continues not to receive payment for the half hour meal break during his shift.

 

RELEVANT LEGISLATION

 

10. Article 45 of the Employment Rights (Northern Ireland) Order 1996 (ERO) provides for a workers' right not to suffer unauthorised deductions from wages by his employer. A deduction occurs when the employer pays less than the amount properly payable to the employee on that occasion and the amounts of the deficiency is to be treated as a deduction. A worker may present a complaint to an industrial tribunal under Article 55 ERO that his employer has made a deduction in contravention of Article 45.

 

11. The industrial tribunal has jurisdiction to determine an employee's claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment, under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994, if the claim arises out of, or, is outstanding on termination of his employment.

 

12. In Southern Cross Health Care Co Ltd - v - Perkins & ORS [2010] EWCA Civ 1442 the Court of Appeal in England and Wales considered whether the Employment Tribunal had jurisdiction to construe contractual terms in a written statement of particulars in a claim arising from failure to provide written terms and conditions and Maurice Kay LJ set out:

 

"The tribunal has no jurisdiction to interpret the agreement - that is a matter for the ordinary Courts. Still less does the tribunal have jurisdiction to amend the agreement. It can only amend the statutory statement to ensure that it corresponds with the agreement.

In other words, the reference in Section 11(1) [equivalent to Article 43(1) ERO] to a determination of "what particulars ought to have been included", is not an invitation to judicial creativity, even under the rubric of "construction".

 

In my judgement this approach is both established and correct. The alternative, expansive approach would open the door to a multitude of cases advanced on a contractual basis in a manner totally at variance with the consistent reluctance to enlarge the breach of contract jurisdiction of Employment Tribunals to embrace workplace disputes during the currency of a contract of employment. This may be regrettable but it is, as regards both law and policy, well settled."

 

12. In Agarwall - v - 1. Cardiff University, 2. Cardiff and Vale University Local Health Board UKEAT/0210/16/RN the EAT considered whether the Employment Tribunal had erred in holding that it was not possible to determine the claimant's claim without having to engage in construction of her contract of employment and Slade J set out at paragraphs 52 & 53:

 

"however if applying Southern Cross it was necessary to construe the terms of the claimant's contract of employment with the First Respondent including any documents incorporated into that contract the Employment Tribunal would have no jurisdiction. Nor would the tribunal have jurisdiction to decide whether the entitlement to pay was subject to implied terms.

 

A mere assertion that Section 13 [equivalent to Article 45 ERO] gives rise to construction issues or questions of whether terms should be implied into a contract of employment would not take the claim outside the jurisdiction of the Employment Tribunal. However where the conditions of entitlement to pay or those requiring or authorising deductions from pay are not clear and require construing the contract of employment and/or a decision on implying terms, the claim would fall outside the jurisdiction of the Employment Tribunal. As observed by Maurice Kay LJ in Southern Cross it is not the role of this Court to embark upon a construction of the claimant's contract of employment. That may be for another Court on another occasion. The following observations are made in considering whether the determination of the claimant's claim required construing her contract of employment with the first respondent and/or whether it included implied terms. It is not the role of the Employment Tribunal or this Court to decide on how the contract is to be construed or what terms, if any, are to be implied.'

 

APPLICATION OF THE LAW TO RELEVANT FACTS

 

13. To determine whether the claimant has suffered an unauthorised deduction from wages contrary to Article 45 ERO it is necessary to first identify the amount of wages properly payable to him, that is, the amount to which he was legally entitled under his contract of employment. I do not consider that it is clear as submitted by the claimant, from his contract of employment, that he was entitled to payment for 42 hours per week, his hours of work are expressed therein as "anticipated" and as such are not certain. It is not clear from the claimant's contract whether a paid or unpaid meal break was intended. In the absence of certain contractual provision from which it is possible to ascertain the amount properly payable to the claimant, to establish this would next require consideration of whether there was an implied term to pay for the claimant's meal break which can or ought to be construed from the respondent's past conduct. I consider that it is not possible to determine what amount was properly payable to the claimant without engaging in construction of his contract of employment. I accept the respondent's submissions as per Southern Cross and Agarwall that the conditions of entitlement to pay are not clear and would necessitate a decision on implying a term, which where the claimant's employment is ongoing, falls outside the jurisdiction of the Tribunal.

 

CONCLUSION

 

14. The tribunal does not have jurisdiction to determine the claimant's unauthorised deduction from wages claim. The claimant's claim is accordingly dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 6 April 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: