United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 1026_93_0405

Appeal No. EAT/1026/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th May 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J D DALY

MR T THOMAS CBE

---

MR N A DUFFIELD          APPELLANT

CONSTRUCTA-STOR INSTALLATION SERVICES LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant NO APPEARANCE BY

OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at Nottingham on the 5th October 1993. For reasons notified to the parties on the 21st October 1993 the Tribunal unanimously held that the application made by Mr Duffield under the Wages Act 1986 should fail. The application was made against his former employers Constructa-Stor Installation in respect of a deduction made from the final payment of his wages. Mr Duffield argued that that deduction was made contrary to the restrictions on deductions contained in Section 1 of the Wages Act.

Mr Duffield was disappointed at the failure of his application and he decided to appeal. His Notice of Appeal is dated 23rd November 1993. The preliminary hearing for the appeal was fixed in order to determine whether Mr Duffield's appeal raised an arguable point of law.

The Tribunal received, in the post yesterday, a letter from Mr Duffield stating that he would be unable to attend the hearing as planned, due to work. His employer was sending him to the United States yesterday, but he had no objection to the preliminary hearing taking place without him. We have therefore decided to deal with Mr Duffield's appeal on the papers before us.

The point raised on the appeal is a short one. Mr Duffield was employed by Constructa-Stor Installation Services Limited as an installer of mezzanine floors, office partitioning and suspended ceilings. His employment ran from the 12th October 1992 until 23rd June 1993. On the 1st July 1993 he presented a complaint to the Industrial Tribunal in respect of a deduction made from his last wage payment with no written agreement. The circumstances in which the deduction came to be made are set out by the Tribunal in the full reasons for their decision. The relevant findings of fact are that Mr Duffield claimed a balance of £148.96 deducted by his employers from the final payment of wages. The deduction was in respect of a float handed to Mr Duffield in October 1992. A letter was signed by Mr Duffield on 9th October acknowledging receipt of a £300 cash float to be used for stay away and fuel expenses. The letter states that:

"I [Mr Duffield] understand that I must obtain receipts complete with a VAT Number where applicable for all expenditure, reference float."

Mr Duffield was provided with a letter dated 28th June 1993 by Constructa-Stor Installation Services Limited which refers to discussions in the previous week, 23rd June 1993. The Company confirmed that:

"following you terminating your employment with the Company, we are looking for repayment of monies as follows:

A. Balance of cash float £148.96p"

The letter referred to the signed document for the £300 float. It recorded that on the 23rd June Mr Duffield had returned £151.04p. That left a balance which the Company claimed was due from him of £148.96p. The letter stated:

"I understand you lost some money whilst shopping with your wife. The float was your responsibility and the Company is looking for recompense particularly because:

1. You should not have been carrying the float whilst on private business.

2. You did not report the loss to the police, thereby precluding the Company from making a claim against insurance."

The Tribunal dealt with the circumstances in which the deduction was made. On 5th July 1993 Miss Joan Eves, Mr Duffield's partner, went to collect the wages due to him from the Company's offices in Spalding. A letter had been sent to Mr Duffield by the Company on the 28th June in the terms set out. It was agreed that the wages due to Mr Duffield, excluding the float, was £695.79 pence. Miss Eves went to the office in Spalding with a letter signed by Mr Duffield. It was addressed to Constructa-Stor Installation Services Limited and simply stated:

"I give permission for Miss J Eves to collect my pay."

When Miss Eves saw the Managing Director of the Company she was asked to sign a document in the following form:

"I agree to have deducted from N Duffield's final wages £148.96 pence being the balance of £300 float received by him. Signed and dated 5.7.93"

She signed that document and underneath, on the same piece of paper, she signed a receipt for the sum of £609.79 pence being the final payment.

From the Company's point of view it appeared that they had in their hands a signature of Miss Eves, on behalf of Mr Duffield, to make the deduction.

Before the Tribunal Mr Duffield argued that his authority to Miss Eves to collect his pay did not extend to authorising her to agree to the deduction of the float of £148.96 pence. He relied on the provisions of Section 1(1) of the Wages Act 1986 which provides:

"(1) An employer shall not make any deduction from any wages of any worker employed by him unless the deduction satisfies one of the following conditions, namely -

(a) . . .

(b) the worker has previously signified in writing his agreement or consent to the making of it."

His point was, quite simply, that he had not signified in writing his agreement or consent to the making of any deduction. The only signification that the Company had in writing was from Miss Eves. Miss Eves' only authority from Mr Duffield was "to collect" his pay, not to agree to any deductions from it.

The Tribunal identified the point for decision as follows:

"did the letter give Miss Eves the authority as agent for Mr Duffield to signify in writing her consent to the deduction for the float."

The Tribunal answered that question by saying:

"Bearing in mind industrial realities we take the view that the letter was such an authority for her to agree to the deduction. Under those circumstances Mr Duffield's claim fails."

In our view, the point raised by Mr Duffield is arguable in law. He states in his Notice of Appeal:

"that I did not give Miss J Eves permission to allow any deduction from my pay. She was only to collect my pay. I did not give in writing prior to the agreement to the Company to deduct anything from my pay."

It seems to us arguable that, on the proper construction of the letter which Mr Duffield signed, Miss Eves' authority was limited to collection of wages and did not extend to agreement by her to any deduction.

If that were the only point in the case the matter would proceed in a straightforward way to a full hearing of the appeal. We have, however, given this matter full consideration and we should point out at this stage that it appears that it may be open to the employer company on the appeal to take a point of law not so far been taken by the Company itself or the representative who appeared for the Company at the hearing before the Industrial Tribunal.

The section which imposes general restrictions on deductions, Section 1, contains subsection (5) which provides:

"Nothing in this section applies -

(a) to any deduction from a worker's wages made by his employer, or any payment received from a worker by his employer, where the purpose of the deduction or payment is the reimbursement of the employer in respect of -

(i) . . .

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

made (for any reason) by the employer to the worker;"

On the facts found by the Tribunal, and on the documents contained in the appeal bundle Section 1(5)(a)(ii) may provide a complete answer by the Company to Mr Duffield's claims. It may, therefore, be advisable for Mr Duffield to reconsider in the light of that provision whether he wishes this appeal to proceed to a full hearing. The position at the full hearing may be that he would succeed on the point of Miss Eves' authority but ultimately fail because the Wages Act does not prohibit deductions by an employer in respect of an overpayment of expenses. The money due in respect of the float may be held to be covered by that provision.

In those circumstances we direct that, with those points in mind, this matter proceeds to a full hearing. A copy of this judgment should be supplied to Mr Duffield and to Constructa-Stor Installation so that they can both reconsider whether this matter is worth fighting.