United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES KEEGAN UNISON REPRESENTATIVE


 


JUDGE CLARK

1. The Appellant Mrs Gray was employed by the Respondent as a Nursery Nurse at St Peters Primary School, Formby in Lancashire providing special needs care to a child, J. Her employment commenced on 12 September 1994.
2. By an Originating Application presented to the Liverpool Employment Tribunal on 15 April 1999, the Appellant complained of unlawful deduction from pay and sex discrimination. We are concerned in this appeal only with the unlawful deduction claim.
3. Her case, as it appears from the form IT1 prepared with the assistance of Mr Keegan, Regional Officer of her Trade Union, Unison, was that she had worked a 32.5 hour week at the school until in November 1998 she was informed by the Respondent that her hours would be reduced to 24 and that her salary would be reduced accordingly to 24/32½ of her original earnings.
4. It was her case, pleaded at paragraphs 11.3, 11.4 and 11.8 of the particulars of complaint forming part of her Originating Application, that her contract of service incorporated the terms of a collective agreement know as the NJC Scheme, and that under the terms of that scheme she was to regarded as being in full time employment because she worked 10 sessions per week, even after her hours were reduced to 24. Accordingly she contented that the reduction in her pay was a breach of that contractual term amounting to an unlawful deduction from wages under section 13 of the Employment Rights Act 1996.
5. The claim came before a Chairman, Mr W Lloyd Parry, sitting alone at Liverpool on 22 September 1999. In a decision with extended reasons promulgated on 17 November 1999 the Chairman found that

"The applicant's contract among its terms provided: -

(i) that she was guaranteed work for at least 12 hours;

(ii) that she would be consulted about any change in her hours or place of work;

(iii) that her working week was 32½ hours and she would be required to work 32½ hours."

6. Those terms appear at paragraph 1 of a statement of written particulars of terms and conditions of employment issued to the Appellant by the Respondent. In these circumstances he found that by reducing her hours from 32½ to 24 hours the Respondent was not in breach of contract. He further found that there had been genuine consultations with her about that reduction. In these circumstances he dismissed the claim.
7. In this appeal Mr Keegan takes the principal point that nowhere in the extended reasons does the Chairman deal with the Appellant's case that under the terms of the NJC Scheme, incorporated into her contract, she was to be treated as a full time employee on the basis that even after the purported change in hours she was regularly employed for 10 sessions per week at the school. Insofar as the terms of the written statement of terms and conditions of employment were internally inconsistent as between paragraphs 1 and paragraph 3 of their statement, no attempt has been made by the Chairman to resolve that inconsistency.
8. It seems to us that Mr Keegan raises an arguable point of law to proceed to a full hearing. The Employment Tribunal is required to deal with the principal points in both parties cases and a failure to do so on the face of the reasons arguably falls short of the minimum requirement to be found in the judgment of Bingham LJ in Meek –v- City of Birmingham District Council (1987) IRLR 250, 251.
9. We shall therefore allow the appeal to go forward on the grounds of appeal appearing at paragraphs 6.1. to 6.7. of the notice of appeal.
10. There is an alternative argument mounted in paragraph 6.8 of the grounds of appeal, in relation to the Chairman's finding that genuine consultations took place between the Respondent and the Appellant. Having heard Mr Keegan's submissions on that alternative argument we reject it at this preliminary hearing stage. It seems to us that in a claim for unauthorised deductions from wages, the question as to whether or not the employer was in breach of a contractual obligation to consult is nothing to the point. Accordingly the matter will proceed solely on grounds 6.1. to 6.7. of the notice of appeal.
11. For the purpose of the full hearing will shall direct that the case be listed for 2 hours, category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this Tribunal at the same time. There are no further directions.