At the Tribunal | |
On 25 July 2002 | |
Before
THE HONOURABLE MR JUSTICE NELSON
MR B V FITZGERALD
MR P M SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | CHRISTOPHER JEANS (One of Her Majesty's Counsel) MR MARTIN ARMSTRONG (Group Legal Adviser) Philips Electronics UK Ltd The Philips Centre 420-430 London Road Croydon Surrey CR9 3QR |
For the Respondent | ANDREW SHORT (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors Kennedy Tower St Chads Queensway Birmingham B4 6JG |
MR JUSTICE NELSON:
The Facts
"In the event of work not being available, employees sent home are guaranteed payment of their normal earnings for time lost within their standard working week up to a maximum of twenty five working days in any continuous twelve month period."
"(i) All hours worked outside the normal start and finish times of the standard working week attract the premium element, and the basic rate for these hours is not paid until more than forty hours have been worked in any week.
(ii) Correspondingly, where Management has not required a re-arrangement of the standard working week, hours worked outside the normal start and finish times of the standard working week will be paid in accordance with an existing overtime arrangement.
(iii) Where overtime working is required in addition to a re-arrangement of the standard working week, the overtime hours will be paid in accordance with existing overtime arrangements."
"…overtime working after completion of a standard working day does not fall into the category of re-arranged hours because it is outside the hours of your normal working day and is therefore subject to normal overtime agreed payments."
"comprises six additional shifts per employee (eighteen in total) on specified rostered shifts between Philips calendar weeks 37-49." [Clause 1]
"The company will review with the Trade Union the operation of Annual Hours later in 1993 on the basis that the principle of using 6 additional shifts per employee will be used in future years if needed."
".. these changes to take effect on the due dates and to be in settlement of all outstanding pay and conditions claims. No further claims for improvement of pay and conditions to be made from implementation and during the life of this agreement i.e. before 1st January 1994."
"did establish a principle but it was against committed rostered shifts i.e. at weekends. The Trade Union never envisaged that this agreement would be used in this new context…working a Sunday when it was principally in a return for a Friday night shift was quite different from the company's proposals for 1996."
He accepted that the principle for lay off and recovered shifts in 1993 was agreed but this was based on "predicted lay off and recovered shifts".
"Each employee was required to recover during 1999 those hours that they had been laid off in week 1 and week 18. They had to do so by working overtime, designating that overtime as the recoupment of the laid off basic pay. For the overtime worked they received no basic pay only premium rate and shift allowance. During the lay off period they had been paid basic pay only. At the end of the year calculations were made by the Respondents as to the number of hours that had been worked under this arrangement by each employee. If an employee had not worked sufficient hours to make up those during the two lay off periods, a calculation was made of the number of hours not worked and a deduction from the salary due to the individual employees in January was made from their pay." [Paragraph 12]
The Employment Tribunal decision
(i) The AHA created no enforceable obligation for the years after 1993. It provided for the workforce to work specific shifts at specific times. It did not allow them to recoup payments made in the guaranteed lay off period except by requiring employees to work another different shift (ET decision paragraph 24).
(ii) The 'principle' under Clause 7 of the AHA did not oblige the employees to work additional shifts or hours after 1993 in the absence of any agreement as to what additional shifts should be worked.
(iii) The agreements did not allow the deductions to be made (ET decision paragraph 26).
(iv) Philips were not recovering an 'overpayment of wages' under section 14 (1) of the Employment Rights Act 1996 when they deducted the employees wages.
The Statute
"(1) An employer shall not make a deduction from the wages of a worker employed by him unless –
(a) the deduction is required or authorised to be made by virtue of statutory provision or a relevant provision of the worker's contract; or
(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.
(2) In this section 'relevant provision' in relation to a worker's contract means a provision of the contract comprised
(a) in one or more written terms of the contract of which an employer had given the worker a copy on an occasion prior to the employer making the deduction in question; or
(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect of which in relation to the worker the employer has notified the worker in writing on such an occasion."
"(1) Section 13 does not apply to a deduction from a worker's wages made by an employer where the purpose of the deduction was the re-imbursement to the employer in respect of
(a) an overpayment of wages; or
(b) an overpayment in respect of expenses incurred by the worker in carrying out his employment,
made (for any reason) by the employer to the worker."
The Appellant's submissions
"A collective agreement has special characteristics, being made between an employer or employer's organisation on the one side and the trade union or trade union's representative of employees on the other, usually following a negotiation. Thus it represents an industrial bargain, and probably represents a compromise between the conflicting aims of the parties, or 'sides' as in this context they are revealingly called. But, despite these special characteristics, a collective agreement must be construed like any other, giving a fair meaning to the words used in the factual context known to the parties which gave rise to the agreement."
"Section 14 (1) does not require that the deduction must be a lawful one. The Tribunal simply has no jurisdiction to enquire into or determine the issue of lawfulness of a deduction falling within one of the categories set out in section 14 (1). If the deductions fall within that section the procedure is not to make a complaint to a Tribunal but rather to issue proceedings in the ordinary courts." [Harvey on Industrial Relations and Employment Law and SIP Industrial Products v Swinn [1994] ICR 473, Sunderland Polytechnic v Evans [1993] ICR 392]
The Respondents' submissions
Conclusions