United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS M E ATKINSON (Representative) Cumbria Rural CAB c/o The Library Ellerthwaite Windermere Cumbria LA23 2AJ


 


JUDGE BYRT QC: This is a preliminary hearing in an appeal against a decision, promulgated on 17th June 1998, by the Employment Tribunal Chairman, sitting alone, in Manchester. In that decision he held that the employee's claim that there had been an unlawful deduction of wages under s. 13 of the Employment Rights Act 1996 should be dismissed. The employee, Mr Thoburn, now appeals.

The facts are that Mr Thoburn was employed by the respondents between October 1993 and April 1998 as a cable jointer. The respondents do much work under contract for Norweb, and as a result they themselves are placed under fairly stringent requirements as to the techniques and the standards which have to be applied if they are going work for Norweb. In turn the respondents impose those standards and terms upon their own employees. Periodically the employees are required to attend what are called 'training sessions' in order to bring them up to date with the standards and techniques required by Norweb.

There is a term of Mr Thoburn's contract of employment which says that if he leaves within 12 months of such a training course he has to pay the full 100% costs of that training course. The term also provides that if he leaves within two years of such a course he has to pay 30%. As these courses happen approximately every two years it means that an employee in Mr Thoburn's position can in practical terms only leave if he is prepared to pay a substantial or appreciable part of the fees for the training course he last attended.

What has happened in this case is that Mr Thoburn attended a course in February 1998 for which the respondents had to pay a fee of some £900. Pursuant to the particular clause in Mr Thoburn's contract, the respondents say that they are entitled to recover those fees from Mr Thoburn because he left their employment in April 1998, that is within three or four months of his finishing that training course. What the respondents have done is to deduct £450 from his wages over two consecutive months. The issue which came before the Employment Tribunal was whether the employers were entitled to make those deductions.

There are three points which occur to us of some importance.

This case was decided by an Employment Tribunal Chairman sitting alone. The crucial issue he had to decide was whether the training course that Mr Thoburn went on was one where he was in receipt of training, learning of new skills and techniques, or whether it was but a part of the process of assessment which the employers were compelled to undertake in order to satisfy the requirements of Norweb. The probability is that part of the course was training, in that there were new techniques and new fittings which had to be learned about, and part of it was an assessment process in order to ascertain whether the employee was up to the new skills required to carry out contract work for Norweb. It occurs to us it is a moot point whether in those circumstances with a mix of training and assessment, the employee is liable under the terms of contract to pay for the whole costs of the so-called 'training course'.

The Employment Tribunal Chairman says in the last paragraph of his reasons that he thought this issue whether this was a training or an assessment course, was a difficult question. He eventually came to the conclusion that it was a "training course" within the meaning of the contractual term, and accordingly, he felt that there was no unlawful or unauthorised deduction from Mr Thoburn's wages.

Of course a tribunal Chairman has a discretion whether he sits alone on a case of this sort. Whether it is right for him to do so in a case where a difficult issue arises of this sort, unassisted by the expertise and experience of the wing members who have experience of what happens in industry, is in our judgment, debatable. During the course of the argument today, on this preliminary point, the contribution made by Lord Davies a wing member has underlined and emphasised the value and experience which would have been available to this tribunal had there been wing members.

There is no indication that the tribunal Chairman considered the question of adjourning this matter for a full tribunal to hear it. He has that right under s. 4(5) of the Industrial Tribunal Act 1996, but there is no indication that he considered the issue of whether he should adjourn, and if he did, there is no indication of the reasons which eventually persuaded him not to do so.

We think that an arguable point of law arises which would give this appellate tribunal the opportunity to offer guidance on the sort of considerations the Chairman should have in mind when deciding to sit alone and when deciding whether to exercise his discretion under s. 4(5).

In addition, we think there is a third legal issue to be argued on the construction of the contract. The clause in question empowers the employer to deduct from his employee's wages the fees of a "training course". But that in itself is a very vague description of the sort of courses Mr Thoburn signed up for. I have already suggested that it is difficult to draw the definitive line between training and the assessment process entailed in these courses. Is the clause which covers this particular issue in this contract sufficiently clear in saying what it wants to say to be enforceable as a term. It is a provision which has fairly wide ramifications for the people employed in this particular company and perhaps elsewhere. Accordingly, we think this is a further point which should be considered at a full hearing of the Employment Appeal Tribunal.

We therefore give leave for this matter to go forward to a full hearing on these three points of law.

Neither point is properly covered in the Notice of Appeal. There will therefore need to be an amendment to include these three points. Ms Atkinson has represented the appellant today, and has, if I may say so, with considerable persistence pursued the points she has made before us. However, we think the three legal points we have identified are not easy and do require a certain degree of legal expertise to argue. Mr Thoburn will obviously have to give further thought and consideration to this aspect of the matter.

We will allow 21 days for the amendment to the Notice of Appeal.