United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 927_94_0311

Appeal No. EAT/927/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 November 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A C BLYGHTON

MR A D SCOTT

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MRS A F MADLEY          APPELLANT

CHELMSFORD COLLEGE CORPORATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant (NO APPEARANCE ON

BEHALF OF THE

APPELLANT)

For the Respondents (NO APPEARANCE ON

BEHALF OF THE

RESPONDENT)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an Appeal by Mrs Madley against the decision of the Industrial Tribunal held at Bury St Edmunds on 30 August 1994.

The Tribunal heard a complaint by Mrs Madley against her employers, the Chelmsford College Corporation under the Wages Act [1986]. A separate claim by her under the Sex Discrimination Act [1975] was adjourned generally.

This is the preliminary hearing of the Appeal from the decision which was unanimous that her claim was not well-founded and should therefore be dismissed. The purpose of the preliminary hearing is to determine whether the Appeal instituted by Mrs Madley by a Notice of Appeal dated 30 September 1994, raises an arguable question of law. If it does not, no purpose would be served by allowing it to continue to a full hearing and it should be dismissed.

Mrs Madley has not been able to attend the hearing this afternoon. She sent a letter to the Tribunal, received here on 1 November, asking for her preliminary hearing to be dealt with in her absence on the basis of an outline-written argument submitted by her. She explains in the letter that pressing court commitments preclude her attendance today.

In order to determine whether the various points raised by Mrs Madley in the outline argument raise question of law, it is necessary first to look at the dispute resolved by the Tribunal's Decision in the Full Reasons notified to the parties on 13 September.

Mrs Madley has been a part-time lecturer at the college since September 1990. On 7 March 1994, she presented an application to the Tribunal, complaining among other things, of unlawful deductions from her wages under the Wages Act [1986]. Her complaint was that from September 1990 up to June 1993, she lectured at classes at the college under a written contract and was paid monthly in arrears. In September 1993, she was asked to teach classes was given no contract and was not paid after four weeks. She had to write to the college principal and was then given a hand-written cheque in December 1993 with a small payment on account by direct bank transfer in October 1993. She says that on 26 January 1994, the college paid her by bank transfer for work done to 2 January 1994. She gives further items of work done in January, February and March, some of which had been paid and others are unpaid.

The Tribunal had before them the Notice of Appearance from the college which agreed that Mrs Madley was employed from October 1990 and still continued to be employed, but denied any deduction in contravention of the Wages Act from her pay. The case quite simply was she was employed pursuant to a contract of employment for part-time teaching staff. She signed the agreement and was bound by its terms. There was an express term of the contract concerning her salary and method of payment, which provided the hourly rates of pay to be effective from 1 September 1993. The contract provided that work undertaken during one pay period would usually be paid on 26th day of the subsequent month. Salaries would be paid by direct credit transfer to either a bank, building society or Post Office giro account, details of which must be supplied on request. They said that the applicant complained that she would not be paid for the work she carried out for the college during the month of February until 25 March; the college's case was that that was wholly in accordance with her contract of employment.

The Tribunal heard evidence from Mrs Madley and also from Ms Owen, a Personnel Officer on behalf of the college. They had before them two bundles of documents. They had a detailed document, which contained submissions from Mrs Madley and formed the basis of her evidence. In an important paragraph of the decision, the Tribunal stated that there was a degree of conflict between the witnesses and, where there was a conflict, they preferred the evidence of Ms Owen to that of Mrs Madley. They then went on to state their findings of fact as follows: that the evidence given by Mrs Madley was that she could not remember receiving a detailed letter at the beginning of 1993, setting out changes introduced by the 1992 Act or a simplified version of that letter in March or thereabouts in 1993. She also denied receiving a memorandum of 16 March 1993, which set out clearly the changes in the salary payment structure. It was made clear in that document that, in general terms, payments would be made on the 26th of the month and in arrears. This was a change to the old system under which a member of staff claimed remuneration directly by filling in a form and submitting it. Under that system, a member of staff might be paid relatively quickly or, alternatively, could save up hours work until it was worth making a claim and thereby have a larger payment at Christmas or holiday time. There were also, apart from those letters and the memorandum, changes set out in a staff bulletin dated March 1993. Mrs Madley's case was that she did not get that document, nor had she seen or received any other documents.

The Tribunal referred to the claims for work carried out in March. They had to be submitted at the end of March so that Council could honour them. From April 1993 onwards, Mrs Madley was paid in accordance with the new system. Her evidence was that she did not realise that. She suggested that her pay slips through the Summer up to and including September were explainable by her putting in late claims. The Tribunal rejected that and found that she well knew that she was being paid during those months for work done in accordance with the new system.

The Tribunal said that they had a situation where four documents, two letters, a staff bulletin and a memorandum set out the proposed changes. There were a series of pay slips where Mrs Madley did not have to make claims. Applying the objective contractual test, they were satisfied that Mrs Madley, as a reasonable person, would have known about the changes introduced from 1 April.

After expressing some criticism of the way the college had dealt with the matter, the Tribunal went to the events of December. In December 1993, Mrs Madley returned a contractual document for an appointment as a part-time teacher dated 31 December. That said in terms that a statement of the terms and conditions of service applicable to the post were attached and there was also a declaration saying that she accepted the appointment in the letter on the terms and conditions indicated in an attached letter. That is a contractual document. She signed it, was bound by its terms and knew what the document was.

The Tribunal asked the question "What document is it deemed that Mrs Madley received?" They were satisfied on the evidence that she received the documents identified in the bundle. They expressly stated that salary payments were to be made on the 26th day of the subsequent month. The Tribunal was concerned that the letter of appointment contained a paragraph which appeared to refer to statements of terms and conditions sent to the applicant in April 1993. They were satisfied that that was a computer raised document and someone in the department had not taken steps to ensure that the old documents were superseded by covering letters which were altered to make it clear that the old document was no longer contractual.

The Tribunal's conclusion was, therefore, that it was satisfied that Mrs Madley knew, or should have known, of the proposed changes of her contract of employment as from April 1993. They found that she agreed the changes and that she received in December 1993 the appointment letter with the terms and conditions correctly stated sent to her private address. They said that it followed from those findings of fact that her claim failed and was therefore dismissed.

We can only entertain an Appeal which raises a question of law. The question at this stage must be first, if there is a question, what is it? and secondly, having identified it, is it reasonably arguable? We have reached the conclusion, having read the outline arguments submitted by Mrs Madley, that she cannot begin to raise a question of law on this Appeal. She sets out in the outline argument, the facts found by the Industrial Tribunal relating to the crucial events in early 1993 and in the Spring of 1993, to the payment of wages during the Summer of 1993 and the signature of the contract in December 1993. She seeks to raise questions of the construction of her contract with the college and submits that the Tribunal erred in the construction of her contract by deeming that she was bound by the December 1993 terms and conditions. She sets out in detail the reasons for that. She states, by reference to extracts from Halsbury's Laws, principles relevant to the construction of written agreements and to the formation of contracts by the familiar process of offer and acceptance. We have considered these arguments of contractual formation and construction advanced in the outline argument. The short answer to them is that they are irrelevant. The question for the Tribunal under the Wages Act [1986] is a simple one: whether there have been any deductions from Mrs Madley's wages as an employee in contravention of the prohibition contained in Section 1. Under Section 8(3), there is a provision as to what should be treated as a deduction. It states:

"... (3) Where the total amount of any wages that are paid on any occasion by an employer to any worker employed by him is less than the total amount of the wages that are properly payable by him to the worker on that occasion (after deductions) then, except in so far as the deficiency is attributable to an error of computation, 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..."

In order to determine whether there has been an unlawful deduction, it is necessary to determine what is the total amount of wages properly payable to the worker on any particular occasion.

The finding of fact made by the Tribunal was that there were contractual documents issued by the college which changed the previous system of payment from one of claiming fees to payments on 26th of the month and in arrears. That answers the question raised by the Act. If the contract provisions changed as a matter of fact from April 1993, then those provisions were binding on Mrs Madley throughout the period in which she seeks to bring a claim. If, under the contract, the system was changed, she is bound by that system from the moment the change was effected. She cannot complain that she is receiving as wages, less than she is entitled to under the contract, or that she is receiving them otherwise and is provided for in the contract. The simple answer to her case in her outline arguments, is that she is seeking to complain of the findings of fact by the Tribunal as to when the contractual change took place. That is purely a question of fact. There is no question of law arguable on this Appeal. It will therefore be dismissed.