United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 689_95_2202

Appeal No. EAT/689/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22nd February 1996

HIS HONOUR JUDGE P CLARK

MR L D COWAN

MR N D WILLIS

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MR K MENNELL          APPELLANT

NEWELL & WRIGHT (TRANSPORT CONTRACTORS) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR NIGEL GRUNDY

(of Counsel)

Messrs Thomas Needham & Co

Solicitors

John Dalton house

121 Deansgate

Manchester

M3 2AR

For the Respondents MR MARTYN BARKLEM

(of Counsel)

Messrs Russell & Creswick

Solicitors

2 Bells Square

off Trippet Lane

Sheffield

S1 1JN


 


JUDGE CLARK: This appeal raises a pure point of statutory construction. Mr Mennell commenced employment as a HGV driver with the respondent on 3rd March 1993. On 4th November 1994 he was dismissed with one week's pay in lieu of notice.

On 10th January 1995 he presented a complaint to the Industrial Tribunal with the assistance of his trade union representative, Mr Thornton. Box 1 of Form 1 as amended reads:

"Constructive dismissal. Dismissal for asserting a statutory right."

We understand his complaint to be one of unfair dismissal, brought under Section 60A of the Employment Protection (Consolidation) Act 1978, thereby avoiding the need to show the usual two years qualifying period of continuous employment.

In their notice of appearance the respondents took the point that the appellant had less than two years continuous service; alternatively they contended that the reason for dismissal was some other substantial reason under Section 57(1)(b) of the 1978 Act and therefore not an inadmissible reason under Section 60A.

The matter came before the Sheffield Industrial Tribunal on 25th April 1995. The tribunal decided that Section 60A did not apply in this case and consequently dismissed the complaint for want of jurisdiction. Extended reasons for that decision are dated 10th May 1995.

Before considering the tribunal's reasoning, and the parties' submissions before us, we should set out the limited material, not tested in evidence, which was before the tribunal.

In about early September 1994 the respondents issued to each of their 42 HGV drivers a draft contract of employment, inviting them to sign a copy. Apparently the Company wished to have all its drivers on one standard form contract.

Mr Mennell read through his copy and found that their were clauses which he could not accept. In particular, Clause 11.3. We should set out the whole of Clause 11 in order to put sub-clause (3) into context.

"11. COST OF TRAINING

11.1 The Firm may provide the Employee with training in relation to carrying dangerous goods.

11.2 It is at the Firm's absolute discretion whether the Employee shall attend such a course of training.

11.3 If the Employee shall attend a course of training and the Employee does resign before the expiry of the Agreement (including the expiry of any agreed extension of the Agreement) the Employee undertakes to repay the Firm of the costs incurred by the Firm as a result of funding the Employee's attendance on the training course.

11.4 Such sums as may fall due to the Employee by reason on this undertaking may be recovered by the Firm in whole or in part by deduction from payment of the final salary or other emoluments due to the Employee on termination of employment."

It was Mr Mennell's case that Clause 11.3 contravenes Section 9 of the Health & Safety at Work Act 1974, which prohibits an employer from levying a charge on his employees in respect of anything done in pursuance of any specific relevant statutory provisions. It has not been necessary to investigate whether Section 9 was in fact breached.

His case further was that any deduction from his wages under Clause 11.4 to cover repayment of the cost of the employer of his attending any training course in the events described in Clause 11.3, would amount to an unlawful deduction from his wages contrary to the Wages Act 1986. Further and in any event, such deduction requires the employee's written consent. Mr Mennell refused to sign the contract as drafted without amendment. He alleges that he was told by the employer that if he did not sign the draft contract as it stood he could expect dismissal. Both sides maintained their positions and eventually he was dismissed.

Before the Industrial Tribunal Counsel then appearing for the respondents took a preliminary point on the construction of Section 60A. It will be convenient to set out the relevant provisions of Section 60A, which was inserted by Section 29 of TURERA 1992 with effect from 30th August 1993:

"60A Dismissal on grounds of assertion of statutory right

(1) The dismissal of an employee by an employer shall be regarded for the purpose of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee -

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1) whether the employee had the right or not and whether it has been infringed or not, but for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It shall be sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following statutory rights are relevant for the purposes of this section, namely -

(a) any right conferred by -

(i) this Act, or

(ii) the Wages Act 1986,

for which the remedy for its infringement is by way of a complaint or reference to an industrial tribunal;"

The argument advanced by Counsel for the respondents before the tribunal was to this effect; Section 5(1) of the Wages Act 1986 provides:

"(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 section 1(1) (including a deduction made in contravention of that provision as it applies by virtue of section 2(3)), or

(b) that his employer has received from him a payment in contravention of section 1(2) (including a payment received in contravention of that provision as it applies by virtue of section 3(1)), ..."

Thus, Counsel submitted, there was no relevant statutory right, the infringement of which could be asserted in this case, because none of the events referred to in the Wages Act, the remedy for which infringement is by way of complaint to an Industrial Tribunal, had actually happened. The mere future possibility that such an event might take place was clearly not covered by the Wages Act and therefore could not be covered by Section 60A.

In response, Mr Thornton relied on Section 60A(2). It did not matter whether the employee had the right, or that it had been infringed, the only question is whether he had alleged that a right had been infringed and that such claim was made in good faith.

The tribunal preferred the submission of the respondents and terminated the proceedings at that stage, holding that it had no jurisdiction.

The oral argument for the respondents before us has taken a different course. Mr Barklem, who did not appear below, does not advance the argument based on Section 5 of the Wages Act which appealed to the Industrial Tribunal. He contends that the employee's right under Section 1 of the Wages Act not to have deductions made without his consent was never infringed prior to dismissal. No deduction were ever made. Therefore there was no relevant statutory right which had been infringed. The tribunal were correct in the result, if not necessarily in its reasoning.

To that Mr Grundy submits; the employee had a right not to have deductions made without his consent; the threat of dismissal if consent is withheld by the employee is an infringement of that right; in these circumstances it is open to an employee to assert, once that threat has been made, that the threat of dismissal had infringed his right under Section 1 of the Wages Act.

Having considered those submission and the reasoning of the tribunal, our conclusion is that the tribunal erred in law in accepting the respondent's legal submission and in its conclusion. Our reasons for so holding are as follows:

(1) Section 5(1) of the Wages Act sets out the circumstances in which an employee may present a complaint under the Act. It is a prerequisite of a complaint under that Act that the employer has made un unlawful deduction. The remedy is a declaration to that effect and an order for payment of the amounts unlawfully deducted.

(2) However, the statutory right provided to employees by the Wages Act is a right not to have unauthorised deductions made from wages without written consent. Section 1(1) of that Act reads:

"(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) it is required or authorised to be made by virtue of any statutory provision or any relevant provision of the worker's contract; or

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

(3) Reverting to Section 60A, subsection (1)(a) applies where the employee has brought proceedings against the employer to enforce a relevant statutory right. That would cover, inter alia, a complaint to an Industrial Tribunal under Section 5 of the Wages Act.

(4) However, Section 60A(1)(b) goes further. It is enough that the employee alleges in good faith that his employer has infringed a relevant statutory right. There is no requirement that the employer has actually infringed the statutory right. (Section 60A (2)).

(5) Thus, in this case, if the facts be that the employer sought by threat of dismissal to impose a variation of the contract of employment to incorporate a term which negated the employee's statutory right not to suffer a deduction of wages without his freely given consent, that is or might be, an infringement of his statutory right at the time when the threat is made, bearing in mind the words of Section 60A (2).

(6) The remedy for infringement of the statutory right not to have wages deducted without consent is by way of complaint to an Industrial Tribunal under Section 5 of the Wages Act 1986. See Section 60A (4)(a) of the 1978 Act.

(7) It follows, in our judgment, that the original contention of the respondents, which focuses on whether there has been a breach of the Wages Act for the purposes of presenting a complaint under Section 5 of that Act, and the alternative argument presented to us today by Mr Barklem, are both unsustainable.

Unfortunately, because this narrow point, wrongly decided as we find, concluded the tribunal's enquiry in this case, we have no alternative but to allow the appeal and remit the case for rehearing before a different tribunal.

We would respectfully invite tribunals, and indeed Counsel, to consider carefully the wisdom of having cases decided on overly narrow preliminary points. It would have saved time and expense in this case, if the tribunal had considered, in addition to the point of construction -

(a) whether the appellant had in fact asserted an infringement of his statutory right. In the absence of any primary findings of fact, and the application of Section 60A(3) to those facts, we cannot take this aspect any further, and

(b) if such a claim was made, whether it was made in good faith, and

(c) if so, whether the reason or principal reason for dismissal was his assertion of his statutory right. The onus will lie on the employee to establish that reason. See Smith v Hayle [1978] ICR 996.

These are questions which we must leave to the next Industrial Tribunal.

Leave to appeal refused.