Ms N Amarandi and others v Royal Cornwall Hospitals NHS Foundation Trust: 1400316/2022 and others
JUDGMENT
The determination of the Tribunal is that: The Claimants’ claim for unauthorised deduction from wages is dismissed as having been presented out of time.REASONS
The tribunal provided an ex-tempore judgment at the conclusion of the 1-day hearing. At the request of the Claimants, the Tribunal subsequently provided written reasons. In a claim presented to the Employment Tribunal on 28 January 2022 the Claimants bring the following claim: Unauthorised deductions from wages pursuant to sections 13 and 23(3) of the Employment Rights Act (ERA) 1996. With the agreement of the parties this hearing was conducted by CVP video platform and was a fully digital hearing. The Tribunal received evidence from Emily Gallagher, Regional Organiser, UNISON South West. The Tribunal was provided a digital bundle comprising 154 pages. A chronology, Cast List, Recommended Reading List and a witness statement from Emily Gallagher have also been provided. References in this judgment to the agreed hearing bundle are in the form [B/page number] and references to witness statements are in the form [WS/surname/page number]. The issue for determination The matter is listed for a final determination hearing. Both parties agree, however, that the preliminary time limits issue falls to be determined before the substantive claim. The Case Management Order dated 25 September 2022 identifies the following issues: Time Limits 1.1 Was the unauthorised deductions complaint made within the time limit in section 23 of the Employment Right Act 1996? The Tribunal will decide:1.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of wages from which the deduction was made?1.1.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.1.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.1.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable time period? The Claimants commenced proceedings in the Employment Tribunal by a claim form dated 28 January 2022. The date of receipt of the ACAS Early Conciliation notification was 19 November 2021, with the date of issue of the ACAS Certificate being 30/31 December 2021. Parties The Claimants were employed by Mitie before their transfer by way of an undertaking to the Respondent on 1 October 2021. The Respondent is a National Health Service (NHS) Foundation Trust providing hospitalbased care and community services. Background Summary The Claimants’ terms and conditions of employment, including pay, are negotiated by collective bargaining. UNISON is the recognised trade union. The Claimants aver that they have suffered an ongoing series of unauthorised deduction of their wages following the failure of Mitie to pay them the Foundation Living Wage (FLW) of £9.50 per hour from 9 November 2020 until 1 April 2021. On 9 November 2020 the FLW increased from £9.30 per hour to £9.50 per hour. The claim represents the differential between the rate of FLW before and after 9 November 2020 when the uplift was applied. From 1 April 2021, the Claimants were paid FLW at the uplifted rate of £9.50 per hour [B/91]. In August 2021, the Claimants received backpay covering the period 1 April 2021 – July 2021. From August 2021 onwards, FLW was paid at the uplifted rate. Relevant statutory framework Employment Rights Act 1996 Section 123(1) – (4) provides: Complaints to employment tribunals(1) A worker may present a complaint to an employment tribunal— (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)), (c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or (d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.(3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2).(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. Summary of the parties’ positions These are outlined fully in the skeleton arguments provided by both Counsel. In summary, however, they are as follows: Claimants’ Submissions The Claimants’ primary position is that their claim has been presented in time. They aver that the crucial dates are as follows and that the deduction takes place once the payment is made in respect of backpay i.e. 20th August 2021. 20/8/21 Trigger for claims as backpay partially paid 19/11/21 3 months minus one day Early Conciliation started in respect of all claims 30/12/21 EC Certificates were issued by ACAS 28/1/22 ET1 Claim Form received by Tribunal The Claimants assert that a series of unlawful deductions has not been interrupted by a period of lawful deductions. There was nothing to suggest that payments from which unlawful deductions were made had to be contiguous to amount to a series. Lawful payments of the correct amounts would not interrupt the series. In respect of whether it was reasonably practicable to present the claim within the time limits, the Claimants request that the Tribunal look at the surrounding circumstances and context at the time. Further, that the presentation of the claim was within a reasonable period, namely within three months minus one day of the backpay. Respondent’s Submissions The Respondent avers that the limitation period had already expired prior to the Claimants approach to ACAS for Early Conciliation. The limitation ‘clock’ did not start to run from 20 August 2021; it started from 23 July 2021 in accordance with section 23(2) and (3) ERA 1996. The 20 August 2021 renumeration payment was an accurate and full payment. It included the full FLW of £9.50 per hour for the 4 weeks prior to the payment, as well as the additional back-payment covering the period of 1 April until July 2021. As there was no deduction on this date, the last payment form which there was a deduction was the payment on 23 July 2021. This, is it submitted, is the date from which limitation commenced. The limitation period therefore expired on 23 October 2021, prior to ACAS conciliation. In those circumstances, given the repeated request to Mitie to rectify the situation, it is difficult for the Claimants to argue that it would not have been reasonably practicable for a claim to have been made within the permitted timescales. The Claimants have simply made a mistake in law and that does not amount to a practical restriction on their ability to bring a claim. Findings Section 23(3) - Series of deductions The Tribunal has been provided with several payslips from 6 of the Claimants: Mr Mark Gill, Mr Phillip Mitchell, Mr Christopher Putt, Mr Neil Purcell, Mr Richard Williams and Mr Mark Rapsey. Renumeration was paid to the Claimants at the end of every 4-week period. The payslips provided to the Tribunal relate to the following periods [B/101-152]: Pay date: 16 October 2020 [B/101-106] Pay date: 13 November 2020 [107-1112] Pay date: 11 December 2020 [B/112-118] Pay date: 8 January 2021 [B/119-124] Pay date: 5 February 2021 [B/125-130] Pay date: 5 March 2021 [B/131-136] Pay date: 2 April 2021 [B/137-140] Pay date: 30 April 2021 [B/141-146] Pay date: 28 May 2021 [B/147-152]. I have looked carefully at each of these and would note as follows: Renumeration for this period has been paid at the ‘Basic Pay Hours’ at the rate of £9.30. There are additional ‘Basic Pay Hour’ rates where Claimants were paid at an enhanced rate, for example, for work undertaken during unsocial hours or for overtime. The FLW in the sum of £9.50 per hour was not paid during this period. Ms Gallagher was able to assist the Tribunal in relation to payment of the FLW after the date of the claim period. She clarified that the last renumeration period that did not have the uplifted FLW of £9.50 per hour, was 23 July 2021. From 20 August 2021 the uplift was included as part of the renumeration paid to the Claimants. Further, in the 20 August 2021 payment, the Claimants also received a backdated uplift for the period 1 April 2021 until July 2021. It is accepted, therefore, that July was the last date at which the uplift to £9.50 per hour was not applied. From the August payment onwards, the uplifted FLW was not subject to any deduction. Accordingly, I make this finding. In Bear Scotland Ltd v Fulton and anor; Hertel (UK) Ltd and anor v Woods and ors (Secretary of State for Business, Innovation and Skills intervening) 2015 ICR 221, EAT, Mr Justice Langstaff, then President of the EAT, held that whether there is a ‘series’ of deductions is a question of fact, requiring a sufficient factual and temporal link between the underpayments. This, he said, meant that there must be a sufficient similarity of subject matter, so that each event is factually linked, and a sufficient frequency of repetition. I find that the claim has a clear and repeated factual link between each renumeration period. All relate to the same ongoing issue, namely uplift in the FLW. I find further that the claim is a series of deductions consisting of a continuing, sequential period. There are no breaks in the claim period. It is a time specific series of deductions limited to the dates outlined. Section 23 (3) is clearly defined. Time limits are referenced ‘to the last deduction or payment in the series’. It does not reference time limits in relation to backpay or subsequent rectification. In accordance with this section, I find that the last deduction that was applied in the series was 23 July 2021; this was the last date at which the uplifted FLW was not applied. Section 23(2) - Three-month time limit requirement Was the claim presented to the Tribunal in accordance with this time limit, namely three month plus early conciliation extension? The Claimants commenced proceedings in the Employment Tribunal by a claim form dated 28 January 2022. The date of receipt of the ACAS Early Conciliation notification was 19 November 2021, with the date of issue of the ACAS Certificate being 30/31 December 2021. Three months from the 23 July 2021 deduction is 23 October 2021, before the ACAS early Conciliation notification on 19 November 2021. I find, therefore, that the three-month time limit had expired prior to presentation of the claim form. Section 23(4) – Was it reasonably practicable to present the claim before the end of the three-month time limit? The question of what was or was not reasonably practicable is essentially one of fact for the Tribunal to decide. The leading authority as to the test to be applied was the decision of the Court of Appeal in Palmer and Saunders-v-Southend-on-Sea Borough Council [1984] IRLR 119, CA in which May LJ undertook a comprehensive review of the authorities and proposed a test of 'reasonable feasibility'. ''[W]e think that one can say that to construe the words "reasonably practicable" as the equivalent of "reasonable" is to take a view that is too favourable to the employee. On the other hand, "reasonably practicable" means more than merely what is reasonably capable physically of being done…… Perhaps to read the word "practicable" as the equivalent of "feasible"…… and to ask colloquially and untrammelled by too much legal logic - "was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?" - is the best approach to the correct application of the relevant subsection.'' The possible factors were many and various, and as May LJ stated, they could not have been exhaustively described. They depended upon the surrounding circumstances of each case. This is a matter where the Claimants’ terms and conditions were the subject to collective bargaining, with UNISON being the recognised trade union. The latter were fully engaged with the concerns around payment of the FLW. It was an ongoing issue between the parties from the inception of the increased FLW figure announcement on 9 November 2020. Members contacted UNISON shortly after this date enquiring as to why they were not in receipt of the uplifted figure [WS/Gallagher/8]. UNISON were put on immediate notice as to the dispute. There were repeated attempts at resolution of the issue, with the UNISON recording members ‘becoming increasingly frustrated’ [WS/Gallagher/9]. UNISON’s position was again reiterated to Mitie ‘in the strongest possible terms’ in July 2021 and a meeting arranged for 26 July 2021 [WS/Gallagher/9]. Despite not attending the meeting, Mitie did confirm in writing on the same date that the FLW uplift would be paid from August 2021 onwards, and that this would be backdated for the period 1 April to July 2021. Backpay would not be paid, however, for the period 9 November 2020 until 1 April 2021. Ms Gallagher again assisted the Tribunal in her evidence by confirming that, as a result of this email confirmation and the payment uplift in the August 2021 pay, the position had become ‘crystallised’. Mitie’s position had been clarified and the series of deductions had ended. In my view, therefore, there could be no doubt as to Mitie’s position from the date of the email in July 2021. They had confirmed their position in writing – it was clear and unequivocal. Despite UNISON’s extensive endeavours to resolve the matter by negotiation, this had not elicited an agreement between the parties. The Claimants’ representatives were fully engaged with the issue form its inception in November 2020, had undertaken extensive negotiation on the matter and obtained a clear answer from Mitie as to their position in July 2021. Taking all the circumstances into consideration, I find that it would have been reasonably practicable for the Claimants’ to have presented their claim to the Tribunal before 23 October 2021 in accordance with section 23 (2) ERA 1996. Conclusion The Claimants’ claim for unauthorised deduction from wages is dismissed as having been presented out of time. Employment Judge Lowe 19 May 2023 26 May 2023 Case Number Claimant Name 1. 1400316/2022 Ms Nicoleta Amarandi 2. 1400317/2022 Mr Andrew Baber 3. 1400318/2022 Miss Jodie Bane 4. 1400319/2022 Mr Adrian Bardgett 5. 1400320/2022 Mr James Barker 6. 1400321/2022 Miss Evelyn Bartlett 7. 1400322/2022 Miss Maria Bean 8. 1400323/2022 Mrs Anne Black 9. 1400324/2022 Mr Simon Bourne 10. 1400325/2022 Mr Kevin Bourne 11. 1400326/2022 Mrs Sarah Brook 12. 1400327/2022 Mr Mark Chamberlain 13. 1400328/2022 Mrs Laura Loo Chapman 14. 1400329/2022 Mrs Hilary Collett 15. 1400330/2022 Mr Michael Counter 16. 1400331/2022 Mr Michael Cox 17. 1400332/2022 Mrs Lynda Curtis 18. 1400333/2022 Mr Robert Denny 19. 1400334/2022 Mrs Dawn Denton 20. 1400335/2022 Mr Daniel Earl 21. 1400336/2022 Mr Zachary Ferrell 22. 1400338/2022 Mr Mark Gill 23. 1400339/2022 Mr Arshad Gondal 24. 1400340/2022 Mr Michael Gray 25. 1400341/2022 Mrs Mary Green 26. 1400342/2022 Mrs Mary Gummow 27. 1400343/2022 Mrs Karen Halford 28. 1400344/2022 Mr David Halliburton 29. 1400345/2022 Mr William Harris 30. 1400346/2022 Mr Gary Hayes 31. 1400347/2022 Mr Richard Hebbron 32. 1400348/2022 Miss Stella Hicks 33. 1400349/2022 Mrs Ewelina Hohlweg 34. 1400350/2022 Mr Kevin Hurrell 35. 1400351/2022 Mrs Rosie Jackson 36. 1400352/2022 Mr Nathan Jewell 37. 1400353/2022 Mrs Olga Kacorri 38. 1400354/2022 Mrs Sarah Kemp 39. 1400355/2022 Mrs Debbie Kemsley 40. 1400356/2022 Mrs Jane Kitts 41. 1400357/2022 Miss Carol Linthwaite 42. 1400358/2022 Mr Paul Marriage 43. 1400359/2022 Mrs Teresa Martin 44. 1400360/2022 Miss Lisa Mayes 45. 1400361/2022 Mrs Hayley-Jane Mcgovern-Bray 46. 1400362/2022 Mrs Sarah Medlyn-Woods 47. 1400363/2022 Mrs Adrianna Mitchell 48. 1400364/2022 Mr Phillip Mitchell 49. 1400365/2022 Mr Chris Mugford 50. 1400366/2022 Mrs Milena Murton 51. 1400367/2022 Mrs Mo Noall 52. 1400368/2022 Mr Daniel Paul 53. 1400369/2022 Mrs Susan Piekarz 54. 1400370/2022 Mrs Susan Porter 55. 1400371/2022 Mrs Sheila Pridham 56. 1400372/2022 Mr Neil Purcell 57. 1400373/2022 Mr Chris Putt 58. 1400374/2022 Mr Nicholas Quinn 59. 1400375/2022 Mr Mark Rapsey 60. 1400376/2022 Mrs Claire Reid 61. 1400377/2022 Mrs Rachel Richards 62. 1400378/2022 Ms Geraldine Richards 63. 1400379/2022 Mrs T-Jay Roach-Corin 64. 1400380/2022 Mr Richard Roberts 65. 1400381/2022 Mr Anthony Roberts 66. 1400382/2022 Mr Alan Sainsbury 67. 1400383/2022 Mr Tivi Sejahtera 68. 1400384/2022 Mr Andrew Sheppard 69. 1400385/2022 Mr Gary Sinclair 70. 1400387/2022 Mr Bobby Snider 71. 1400388/2022 Mrs Diane Sockett 72. 1400389/2022 Mr Paul Sockett 73. 1400390/2022 Mr Matthew Stephens 74. 1400391/2022 Mr Damion Stoddern 75. 1400392/2022 Mrs Jane Summers 76. 1400393/2022 Mr Wayne Thompson 77. 1400394/2022 Mrs Teresa Thompson 78. 1400395/2022 Mr Steve Thornton 79. 1400396/2022 Mr Raymond Tonkins 80. 1400397/2022 Mr Daniel Towns 81. 1400398/2022 Miss Fay Tremayne 82. 1400399/2022 Mrs Susan Vincent 83. 1400400/2022 Mr Aidy Walmsley 84. 1400401/2022 Mrs Sharon Watkins-Field 85. 1400402/2022 Miss Hannah Watson 86. 1400403/2022 Miss Cindy Webb 87. 1400404/2022 Mr Rodney White 88. 1400405/2022 Mr Paul Whyton 89. 1400406/2022 Mr Richard Williams 90. 1400407/2022 Miss Carol Williams 91. 1400408/2022 Mrs Kimberley Williams 92. 1400409/2022 Mrs Susan Wright