Professor F Ritchie v University of the West of England Bristol: 1400480/2025
EMPLOYMENT TRIBUNALS
Case No 1400480/2025
Between
Professor F RitchieClaimantUniversity of the West of England BristolRespondent
Before
Employment Judge WinfieldIn person for claimantDate 8 May 2026
JUDGMENT
[1]The complaint of unauthorised deductions from wages contrary to Part II of the Employment Rights Act 1996 is not well-founded and is dismissed.
REASONS
[2]The Claimant, Professor Felix Ritchie, is employed by the Respondent, the University of the West of England Bristol (“UWE”). This claim concerns a complaint of unauthorised deductions from wages arising from the Respondent’s application of a 55 workload-bundle carry-over cap within its workload allocation system (“WAMS”).[3]The Claimant contends that, when UWE limited his carried-forward workload bundles (“WLBs”) to 55 at the start of academic year 2024/2025, UWE removed a substantial accrued balance without compensation. The Claimant contends this amounted to an unauthorised deduction from wages. UWE resists the claim on the basis that there was no contractual (or other legal) entitlement to payment for WLBs and that WAMS/WLBs are not wages.[4]The final hearing took place on 8 April 2026 by CVP. The Claimant appeared in person. The Respondent was represented by counsel. Judgment was reserved. List of Issues[5]The principal claim pursued by the Claimant at the final hearing was a complaint of unauthorised deduction from wages contrary to Part II Employment Rights Act 1996, arising from UWE’s decision to limit the Claimant’s carried-forward WAMS workload bundles (“WLBs”) to 55 WLBs at the start of academic year 2024/2025. The issues I had to determine in order to decide that complaint were as follows: a) Jurisdiction/standing: was the Claimant a “worker” for the purposes of Part II ERA 1996 (note that this was not directly disputed by the parties but is included here for completeness)? b) Time limits: was the complaint presented in time under section 23 ERA 1996 (including any ACAS Early Conciliation extension), and, if relevant, did it concern a “series of deductions” and the two-year backstop in section 23(4A) ERA 1996? c) “Wages”: did the monetary sum claimed by the Claimant fall within the definition of “wages” in section 27 ERA 1996? d) “Deduction”: did UWE make a deduction within section 13(3) ERA 1996 (i.e. was the amount paid on the relevant occasion less than the amount of wages properly payable)? e) “Properly payable”: if the Claimant established that the sum claimed was wages, what (if any) legal entitlement made it “properly payable” (for example, an express term, an implied term, or an implied term arising from custom and practice)? f) Remedy: if the complaint was well-founded, what declaration and (if any) compensation were appropriate under sections 24 and 25 ERA 1996, and how (if at all) did the two-year limitation in section 23(4A) ERA 1996 affect any award? Procedure, Documents and Evidence Heard[6]This claim was presented on 27 February 2025. An ACAS Early Conciliation certificate had been issued on 29 January 2025 (ACAS EC certificate: bundle pp. 5–6; ET1: bundle pp. 7–19). In the ET1 the Claimant selected “other payments” as the only payment category sought. It was discussed between the parties at the hearing as to whether the “other payments” concerned an unauthorised deduction from wages. It was established that this was the case being pursued by the Claimant i.e. that the “other payment” claimed was “wages” within section 27 ERA 1996. In addition, for reasons later explained in this Judgment, the Tribunal did not have jurisdiction to hear any breach of contract claim given, amongst other things, the existing employment status of the Claimant.[7]A Notice of Final Hearing was issued listing the matter for a final hearing by CVP, together with case management orders. The final hearing proceeded for one day only (Notice of Hearing/Orders: bundle pp. 59–62) and as such, the Judgment needed to be reserved due to time constraints.[8]The parties produced an agreed Joint Final Hearing Bundle, paginated 1– 318, which included later evidence disclosed by the Claimant. The Tribunal accepted this additional evidence, as both parties did not contest its inclusion (Additional evidence pack: bundle pp. 294–318).[9]I read and took into account the witness statements exchanged for the final hearing. The Tribunal heard oral evidence from the following witnesses:a. Professor Felix Ritchie (Claimant) (witness statement; and oral evidence);b. Dr Damian Whittard (witness statement; and oral evidence);c. Professor Andrew Simpson (witness statement; and oral evidence); andd. Mr Martin Augustus (witness statement; supplemental witness.[10]Dr Elizabeth Green produced a witness statement but did not attend the final hearing and her evidence was therefore not tested in crossexamination. I admitted her witness statement as evidence and have taken it into account where appropriate, but I have borne in mind that it cannot carry the same weight as evidence given orally and tested at the hearing.[11]I also considered the pleadings and the grievance documentation within the bundle, together with the parties’ written and oral submissions. Closing submissions were made orally by both parties.[12]Throughout the hearing I applied the overriding objective and the Employment Tribunal Procedure Rules 2024, ensuring that each party had a fair opportunity to present their case and to challenge the evidence. Facts Identified[13]I make the following findings of fact on the balance of probabilities, having considered the contemporaneous documents and the oral and written evidence. I set out only those findings necessary to determine the issues in dispute. Where there was conflict in the evidence, I explain why I have made the specific findings of fact.[14]The original Claimants also included Dr Elizabeth Green and Dr Damian Whittard. In late March 2026 Dr Green and Dr Whittard withdrew their claims, leaving the Claimant’s claim to proceed alone. Dr Green did not attend the final hearing: her witness statement was admitted but was not tested in cross-examination.[15]The Claimant has been employed by UWE since 1 June 2012 and was appointed as a Professor in Economics with effect from 23 November 2016. His employment continued at the date of the final hearing. His contract provides that he is employed full-time and is expected to work such hours as are reasonably necessary to fulfil his duties and responsibilities. There is no express contractual entitlement to paid overtime (Claimant contract: bundle pp. 70–76; Respondent case on contractual hours/overtime: bundle pp. 35–37).[16]UWE uses the WAMs to plan and allocate academic activity by reference to “WLBs (as defined above). A full academic year corresponds to 654 WLBs for a full-time academic. The parties agreed in oral evidence that there was no formal written guidance in existence which set out a 55 WLB carry-over cap. However, I find that the figure of 55 WLBs was referred to informally within workload-related materials and in communications, and it was treated in practice (at least within parts of the College) as the intended cap for annual carry-over. I also find that, within the College of Business and Law (and previously the Faculty it replaced) there was, for a period prior to academic year 2022/2023, a local practice of permitting carry-forward beyond 55 WLBs in some cases and using a range of informal mechanisms to manage excess WLBs, including (among others) additional activity honorarium payments and time off in lieu (honorarium guidance: bundle pp. 272–273; Grounds of Response (admissions as to 55 WLB cap and local practice): bundle pp. 35–36; Simpson WS paragraphs 3–10; Augustus WS paragraphs 10–11; as given through oral evidence at the hearing).[17]The parties differed in their characterisation of WAMS and WLBs. The Respondent’s case was that WAMS is a workload planning tool using notional allocations; it does not measure or log the actual time spent by an academic on any activity, and WLBs have no intrinsic monetary value. The Claimant’s case was that WAMS was treated in practice as an authoritative record of workload allocation across teaching, administration and research and that, because externally funded work was costed by reference to time and converted into WLB allocations, WLBs reflected real work done rather than being merely theoretical (Grounds of Response paragraph 5: bundle p. 35; Ritchie WS paragraph 3; Green WS paragraphs 55–59 (untested); Whittard WS paragraphs 8–13; Simpson WS paragraphs 3–6; Augustus WS paragraphs 10–10.3; as given through oral evidence at the hearing).[18]I accept the Respondent’s evidence that WAMS is primarily a workload planning tool and does not, of itself, record the actual hours worked by an academic – it is therefore not specifically a timesheet. However, I also find that it is more than a purely abstract model: it is an institutional system for allocating and recording (in the sense of recording allocations/credits for) workload across activities, and it is used operationally within UWE, including for timetabling and for attributing/capturing externally funded research time once approved and set up. I reach that conclusion because(i) the Respondent’s own guidance and witnesses describe WAMS as a planning/allocation tool rather than an hours-worked record, while(ii) the documentary evidence demonstrates that research costing processes link time/FTE to workload allocations (and those allocations then appear within workload records), and(iii) the dispute in this case arose because significant carry-over allocations were visible within WAMS and were capable of being altered and capped within the system (WAMS/AWP guidance: bundle pp. 258–271; Grounds of Response paragraph 5: bundle p. 35; Simpson WS paragraphs 3–6; Additional evidence pack: bundle pp. 294–318; emails re carry-over reduction: bundle pp. 99–101).[19]A substantial part of the Claimant’s work was externally funded research activity. From at least 2019 onwards, the Claimant and his colleagues (Dr Green and Dr Damian Whittard) were heavily involved in securing and delivering externally funded research and training projects for UWE.[20]The Claimant’s evidence (supported by his contemporaneous correspondence) was that, over a number of years, his WAMS allocations exceeded the annual figure of 654 WLBs and that excess bundles were, in practice, carried forward in order to reduce future teaching and other allocations. By the end of academic year 2023/2024, the Claimant considered that he had accrued a very substantial carry-over and, in his Stage 2 grievance form, described his carry-over having been reduced from 647 WLBs to 55 WLBs. The carrying forward of such a substantial figure was not consistent with the intended 55 WLB carry-over cap referred to in paragraph 16, but I find that carry-over above 55 WLBs had, at least on this occasion in relation to the Claimant, been permitted within the College (Ritchie grievance email/history: bundle pp. 111–112; Ritchie grievance form: bundle pp. 125–128; Grounds of Response (local practice admitted): bundle p. 36; Additional evidence (WAMS printouts / carry-over): bundle pp. 302–314).[21]On 10 October 2024 the Claimant emailed Azeem Haroon, stating that his workload carry-over had been reduced to 55 WLBs and asking that it be restored. On the same date Dr Green emailed Mr Haroon about her carryover being limited to 55 WLBs. On 15 October 2024 Dr Whittard emailed Mr Haroon in similar terms. I find that these emails mark the start of the contemporaneous written exchanges which led to the grievance process and, shortly afterwards, to discussions with senior management about the application of the 55 WLB cap (Emails: bundle pp. 99–101; Green WS paragraphs 27–31 (untested); Ritchie WS paragraphs 21–22; Whittard WS paragraph 41).[22]In evidence, the Claimant explained that the dispute crystallised when his carry-over in WAMS was reduced to 55 WLBs at the start of academic year 2024/2025 and that, absent that reduction, his preference would have been for carry-over to continue rather than for any monetary payment to be made. In oral evidence Dr Whittard explained that, in his experience, permitting carry-over could be beneficial because it enabled workload to be smoothed across academic years by reducing allocations in later years. The Claimant’s evidence was that the carry-over figure he relied upon at the start of academic year 2024/2025 (in excess of 600 WLBs) had accrued cumulatively over a number of academic years, rather than in a single year (as given through oral evidence at the hearing; see also Claimant’s written account: bundle pp. 111–112, 125–128; Whittard WS paragraph 41).[23]Following those exchanges, on 22 October 2024 the Claimant met with Professor Andrew Simpson (Dean and Head of the Business School). The Claimant’s evidence (which I accept as to his perception of the meeting) was that he left the meeting dissatisfied. On 23 October 2024 he emailed Professor Coffey indicating that he would take the issue down the formal grievance route. Professor Coffey responded that the matter should be explored and addressed by the College (Simpson WS paragraph 13; Ritchie WS paragraphs 24–25; emails: bundle pp. 107–108).[24]On 25 October 2024 Ms Grabham confirmed that she would treat the Claimant’s email as a Stage 1 grievance and would investigate the historical issues and seek an appropriate remedy. On 5 November 2024 Dr Green submitted a formal grievance form. The Claimant submitted a grievance form dated 14 November 2024 and Dr Whittard submitted a grievance form dated 25 November 2024. The grievances proceeded as a collective grievance with the Claimant acting as the nominated spokesperson (Email re Stage 1 grievance: bundle pp. 109–112; Green grievance form: bundle pp. 113–117; Ritchie grievance form: bundle pp. 125–128; Whittard grievance form: bundle pp. 129–135; Grabham acknowledgement: bundle pp. 123–124).[25]Ms Grabham conducted a Stage 2 investigation. This included informationgathering meetings with, amongst others, Dr Whittard (in his former role as a workload allocator), Lotta Takala-Greenish (a former workload allocator), Nadine Fry, Azeem Haroon and Professor Andrew Simpson. Ms Grabham produced a written investigation report dated 16 December 2024 and issued Stage 2 outcome letters dated 18 December 2024 (Minutes of investigation meetings: bundle pp. 142–152; Stage 2 investigation report: bundle pp. 166–174; Stage 2 outcome letters: bundle pp. 177–185; Simpson WS paragraphs 20–23).[26]In the Stage 2 outcome, the University did not accept that academic staff had any contractual entitlement to overtime payments linked to WLBs. It was, however, accepted at Stage 2 that matters had not been handled consistently within the College over time and that there had been different informal approaches to managing excess WLBs. Dr Green and Dr Whittard were offered payments under the Additional Activity Honorarium scheme (on a banded basis) in respect of academic year 2023/2024. The Claimant (as a Professor) was not eligible for that scheme and was offered no payment at that stage (Stage 2 investigation report: bundle pp. 166–174 (esp. paragraphs 3.1, 3.4, 5.1–5.2); Stage 2 outcome letters: bundle pp. 177–185; honorarium guidance: bundle pp. 272–273).[27]The Claimants appealed to Stage 3. A Stage 3 appeal hearing took place on 6 February 2025 chaired by Professor Amanda Coffey, supported by Martin Augustus. On 13 February 2025 Professor Coffey issued written appeal outcomes. The appeal was partially upheld on the basis that, although UWE’s position was that the 55 WLB cap had long existed and the College was aligning practice to that policy, the position had not been well communicated within the Economics cluster and there had been a lack of meaningful engagement. It was not accepted, however, that the Claimants had any contractual entitlement to overtime payments or pro rata compensation for WLBs. Exceptional honorarium payments were offered, including £3,000 to the Claimant (Stage 3 agenda: bundle p. 202; Stage 3 outcome letters: bundle pp. 207–220; Augustus WS paragraphs 5–13).[28]Further correspondence followed, including an attempted Stage 4 escalation to the Chair of the Board of Governors. The Claimant’s evidence was that he (and, at the time, the other two Claimants) contacted ACAS in December 2024 in order to protect the limitation period, because they regarded the reduction of carry-over in autumn 2024 as the event giving rise to the dispute. An ACAS Early Conciliation certificate was issued on 29 January 2025. The Employment Tribunal claim was presented on 27 February 2025. The final hearing took place on 8 April 2026. In late March 2026 Dr Green and Dr Whittard withdrew their claims, leaving the Claimant’s claim to proceed alone (Stage 4 correspondence: bundle pp. 221–239; ACAS EC certificate: bundle pp. 5–6; ET1: bundle pp. 7–19; withdrawals: as given through oral evidence at the hearing; ACAS timing: as given through oral evidence at the hearing).[29]The parties disagreed as to whether the Claimant’s additional work (whether expressed as hours or as excess WLBs) carried with it a form of payment. The Claimant’s position was that excess workload recorded and acknowledged through WAMS/WLB allocations represented work done (particularly on externally funded activity), and that where accrued carryover was removed or capped he should be compensated, broadly by reference to his salary rate (as given through oral evidence at the hearing; see also grievance materials: bundle pp. 111–112, 125–128). The Respondent’s position was that academic staff have no contractual right to overtime; WLBs are not wages; and any payments or other measures to recognise additional activity (including honoraria) are discretionary, exceptional and not proportionate to hours or bundles (Claimant contract: bundle pp. 70–76; Grounds of Response paragraphs 7–11: bundle pp. 35– 36; honorarium guidance: bundle pp. 272–273; Stage 3 outcome letter to the Claimant: bundle pp. 216–220; Augustus WS paragraphs 10–10.3). I find on the facts available that excess WLBs did not, of themselves, give rise to any assured entitlement to payment. That is because(i) the contract framework for academic staff does not provide for paid overtime and instead requires such hours as are reasonably necessary;(ii) the Respondent’s documented schemes for recognition of additional activity are framed as discretionary and banded rather than pro rata to time; and(iii) the grievance outcomes proceeded on the basis that any payments offered were exceptional honorarium recognition, rather than sums contractually due by reason only of excess WLBs (Claimant contract: bundle pp. 70–76; honorarium guidance: bundle pp. 272–273; Stage 3 outcome letter to the Claimant: bundle pp. 216–220).
The Law
[30]The Claimant brings a complaint of unauthorised deductions from wages under Part II of the Employment Rights Act 1996 (“ERA 1996”). In this section I set out the legal principles I have applied.[31]Section 13 ERA 1996 provides, so far as material: “13 Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a 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. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. “27 Meaning of ‘wages’.[32]“Wages” are defined in section 27 ERA 1996. The material provision is section 27(1): (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise …[33]The authorities make clear that, for a complaint under section 13 ERA 1996, the Tribunal must identify the sums (if any) which were “properly payable” to the worker on the relevant occasion. It is not sufficient that a claimant considers a payment fair or appropriate: there must be a legal entitlement to the sum claimed. In New Century Cleaning Co Ltd v Church [2000] IRLR 27 (CA), the Court of Appeal held that the words “or otherwise” in section 27(1)(a) do not extend wages beyond sums to which the worker has some legal (though not necessarily contractual) entitlement. In Abellio East Midlands Ltd v Thomas [2022] IRLR 288 (EAT), the EAT held that a claim framed as quantum meruit (unjust enrichment for work done outside the scope of the contract) does not fall within the definition of wages for Part II ERA purposes.[34]The same principles apply to bonuses, honoraria and other discretionary payments. A discretionary payment does not constitute “wages” merely because it is described as a bonus or because the worker hopes or expects it will be paid: it must be “payable” in the sense of being due pursuant to a legal entitlement (as explained in New Century Cleaning). However, a bonus or other discretionary payment may become “wages” where the discretion has been exercised so that the worker becomes legally entitled to a quantifiable sum. For example, in Tradition Securities and Futures SA v Mouradian [2009] EWCA Civ 60 the Court of Appeal held that, once a bonus had been declared and quantified, there was a sum to which the employee was legally entitled and which could be pursued under the Part II ERA regime. Similarly, where an employer operates a discretionary bonus scheme but undertakes to notify an employee of the scheme terms, those terms may become contractually binding once notified (see Chequepoint (UK) Ltd v Radwan [2000] EWCA Civ B3). In addition, section 27(3) ERA 1996 provides that where a payment in the nature of a non-contractual bonus is made to a worker, the amount of the payment is treated as wages and treated as payable on the day on which it is made. These principles may be relevant where an employee seeks to contend that an honorarium or discretionary payment (such as those referred to in this case) has crystallised into an entitlement.[35]Section 27(3) ERA 1996 provides: (3) Where any payment in the nature of a non-contractual bonus is made to a worker by his employer, the amount of the payment shall be treated for the purposes of this Part as wages paid to the worker on the day on which the payment is made.[36]In deciding what is “properly payable”, the Tribunal may (and often must) construe and interpret the contract of employment and determine whether any relevant term is express or implied. In Agarwal v Cardiff University [2019] ICR 433 (CA), the Court of Appeal confirmed that a tribunal hearing an unlawful deductions complaint has jurisdiction to decide contractual questions necessary to determine whether sums are properly payable. The sum claimed must be quantified or capable of quantification: Coors Brewers Ltd v Adcock [2007] ICR 983 (CA); but difficulty in calculation does not, of itself, take a claim outside Part II ERA: Lucy v British Airways plc (EAT/0033/08).[37]The right to complain to an Employment Tribunal about unauthorised deductions from wages is contained in section 23 ERA 1996. The material provisions are as follows: “23 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 (or section 15), or (b) that his employer has received a payment from him in contravention of section 15 (or section 16).(2) Subject to subsection (4A), an employment tribunal shall not consider a complaint under subsection (1) unless it is presented— (a) before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.(3) Where a complaint is brought under subsection (1) in respect of a series of deductions or payments, the reference in subsection (2)(a) to the date of payment of the wages from which the deduction was made shall be read as a reference to the date of payment of the wages from which the last deduction in the series was made. (4A) Where— (a) the complaint is brought in respect of a series of deductions or payments, and (b) the date of presentation of the complaint is on or after 1 July 2015, the tribunal shall not consider so much of the complaint as relates to a deduction or payment where the date of payment of the wages from which the deduction was made or payment received was more than two years before the date of presentation of the complaint.[38]The approach to whether two or more deductions constitute a “series” is a question of fact, having regard to all the relevant circumstances. The Supreme Court so held in Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33. The Court emphasised that a series does not necessarily come to an end merely because there is an intervening correct payment; the Tribunal must consider, amongst other matters, the similarities and differences between the deductions, their frequency, their amount and impact, how they came to be made, and what links them together.[39]The Employment Tribunal’s jurisdiction in relation to breach of contract claims is limited. Section 3 of the Employment Tribunals Act 1996 (“ETA 1996”) provides: “3 Claims by employees.(1) This section applies to a claim by an employee for the recovery of damages or for any other sum (other than a claim to which subsection (3) applies).(2) Proceedings for the recovery of damages or any other sum to which this section applies may be brought before an employment tribunal if— (a) the claim arises or is outstanding on the termination of the employee’s employment, and (b) the employee has not instituted proceedings in a court in respect of the claim.(3) This section applies to a claim by an employee for damages for breach of a term of the contract of employment relating to the giving of notice by the employee or employer.(4) Proceedings for the recovery of damages to which subsection (3) applies may be brought before an employment tribunal if— (a) the claim arises or is outstanding on the termination of the employee’s employment, and (b) the employee has not instituted proceedings in a court in respect of the claim.(5) The amount of damages or sum recoverable by virtue of this section shall not exceed £25,000.(6) Proceedings may not be brought before an employment tribunal by virtue of this section in respect of a claim which is or has been the subject of a compromise agreement.”[40]Section 3 ETA 1996 operates alongside the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623). The effect is that, in general, a free-standing breach of contract claim may only be pursued in the Employment Tribunal where it arises or is outstanding on termination of employment (and subject to the statutory cap). Where employment continues, the usual route for recovery of sums said to be due under contract is a complaint under Part II ERA 1996 (if it concerns “wages” properly payable) or proceedings in the civil courts.[41]If a complaint under section 23 is well-founded, section 24 ERA 1996 requires the Tribunal to make a declaration and gives the Tribunal power to make an award in respect of the deduction (and, where appropriate, compensation for financial loss attributable to the matter complained of). The material provisions are as follows: “24 Determination of complaints.(1) Where, in the case of a complaint under section 23, the tribunal finds the complaint well-founded, it shall make a declaration to that effect.(2) Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker the amount of any deduction made in contravention of section 13 (or section 15) (or the amount of any payment received in contravention of section 15 (or section 16)).[42]Section 25 ERA 1996 makes further provision as to the effect and enforcement of orders. Section 25(4) provides, so far as material: (4) Where a tribunal orders an employer to pay a worker an amount under section 24(2), the employer shall not be entitled, by any means, to recover that amount from the worker. Application of the Law to the Facts[43]The Claimant’s complaint is that, when UWE limited his carried-over WAMS balance to 55 WLBs at the start of academic year 2024/2025, UWE thereby removed or extinguished a substantial accrued balance of workload (in excess of 600 WLBs, and described as reducing from 647 WLBs to 55 WLBs) without appropriate compensation. The Claimant contends that the accrued WLBs represented work done and that, once the carry-over was capped, he should be compensated broadly by reference to his salary rate (Facts: paragraphs 16–29; grievance materials: bundle pp. 111–112, 125– 128; emails: bundle pp. 99–101).[44]Applying sections 13 and 27 ERA 1996, the starting point is to identify whether there were any “sums payable” to the Claimant in connection with his employment which were “properly payable” on a relevant occasion and which were not paid (or were paid at less than the amount properly payable). That requires the Claimant to establish a legal entitlement to the monetary sum he seeks, whether by an express contractual term, an implied term (including by custom and practice), or some other legal entitlement. The fact that work has been performed, or that a workload allocation exists in WAMS, is not in itself sufficient: the sum must be legally payable (Law: paragraphs 30–36; Facts: paragraphs 15–17 and 29).[45]For completeness, I note that the Claimant remains employed by the Respondent. In those circumstances, a free-standing breach of contract claim is not within the Employment Tribunal’s extension jurisdiction under section 3 ETA 1996 (as that jurisdiction is limited to claims which arise or are outstanding on termination of employment). Accordingly, even if the Claimant’s complaint could be characterised as a claim for breach of contract (rather than a Part II ERA 1996 wages complaint), it could not be brought in this Tribunal while employment continues (Law: paragraphs 39– 40; Facts: paragraph 15).[46]On the facts I have found, WAMS/WLBs do not operate as an entitlement to payment. I have found that WAMS is not a timesheet and does not record actual hours worked, albeit it is used operationally as a workload allocation and recording system (Facts: paragraphs 17–18). I have also found that the Claimant’s contract is a full-time academic contract requiring such hours as are reasonably necessary and containing no express entitlement to paid overtime (Facts: paragraph 15). Further, I have found that any payments or measures used within the College to recognise additional activity (including honoraria) were discretionary, exceptional and not intended to be proportionate to the number of excess WLBs (Facts: paragraphs 26–29). In these circumstances, the existence of excess WLB allocations (or their carry-over) does not, of itself, establish that any monetary sum was “properly payable” as wages to the Claimant.[47]I have taken into account the Claimant’s case that externally funded work is costed by reference to time and converted into WLB allocations, and that WAMS therefore reflects real work done. I accept that WAMS allocations can reflect institutional attribution of externally funded commitments, in the sense described in the findings of fact (Facts: paragraphs 17–19; Additional evidence pack: bundle pp. 294–318). However, that does not, without more, establish a contractual or other legal entitlement to additional remuneration. The fact that UWE may recover funding for staff time in its costing systems, or that time is attributed and recorded for internal/external reporting purposes, does not convert workload allocations into wages “payable” to an academic over and above salary, absent a term or policy creating such a right.[48]The Claimant’s case also relied on an asserted longstanding practice of permitting carry-over beyond 55 WLBs and using that carry-over as a means of managing workload (Facts: paragraphs 16 and 20–22). I have found that there was a local practice, at least on occasion, of permitting carry-over above 55 WLBs (Facts: paragraph 16). But the practice relied upon was, in substance, a practice of workload management (including the continuation of carry-over as a “smoothing” mechanism, as described in Dr Whittard’s oral evidence), not a practice that excess WLBs would be paid as money. Accordingly, even if the Claimant establishes (for other purposes) that a practice of carry-over existed, that does not establish that a monetary sum was “properly payable” as wages for Part II ERA 1996 purposes.[49]I also consider the Claimant’s reliance on the Respondent’s use of honoraria and other discretionary payments to recognise additional activity. Insofar as discretionary honoraria were sometimes used, I have found they were exceptional and not linked pro rata to WLBs (Facts: paragraphs 26– 29). As set out above, a discretionary payment may constitute “wages” only where it is legally “payable” (for example because the employer has exercised its discretion so that there is a binding, quantifiable entitlement), and a non-contractual bonus becomes “wages” under section 27(3) ERA 1996 only when it is in fact paid. In this case, the Stage 2 and Stage 3 grievance outcomes referred to the possibility of honorarium payments (and, at Stage 3, an exceptional honorarium payment was offered to the Claimant). However, I have found that such payments were discretionary, exceptional and not intended to be proportionate to excess WLBs, and I do not find any contractual term or other legal basis by which an additional sum (beyond salary) became properly payable to the Claimant by reference to his accrued WLBs. The claim advanced before me is not that a declared and quantified bonus/honorarium was withheld on its due date, but that the Claimant was entitled to a further sum calculated by reference to the value of removed WLB carry-over. On my findings, that asserted entitlement is not established (Facts: paragraphs 26–29; Law: paragraphs 33–35 and section 27(3) ERA 1996).[50]It follows that the Claimant has not established that any relevant monetary sum was “properly payable” to him as wages which was unpaid. On my findings, the reduction of the WAMS carry-over to 55 WLBs did not amount to a “deduction from wages” within the meaning of section 13(3) ERA 1996. The complaint under Part II ERA 1996 is therefore not well-founded.[51]For completeness I consider briefly the issue of time limits. The Claimant’s complaint is not pleaded as a series of payroll deductions from his monthly salary; rather, it arises from the capping of accrued carry-over within WAMS. If (contrary to my primary finding) that capping gave rise to a sum properly payable as “wages”, the relevant “occasion” for section 13(3) ERA 1996 would be the point at which that sum became payable and was not paid. On the evidence, the claim crystallised in early October 2024 when the Claimant discovered that his carry-over had been reduced to 55 WLBs and requested that it be restored (email of 10 October 2024) (Facts: paragraph 21; emails: bundle pp. 99–101). Applying section 23(2) ERA 1996, the claim would therefore need to be presented within three months of that relevant date (subject to any ACAS Early Conciliation extension) (Law: paragraph 37).[52]Even if the Claimant were able to characterise the complaint as a “series” (for example, by treating each month in which he worked in excess of 654 WLBs as giving rise to an underpayment), the Supreme Court’s guidance in Agnew makes clear that whether there is a “series” is a fact-sensitive assessment turning on the links between the deductions and their timing and context (Law: paragraph 38). On my findings, the excess WLBs accrued over a number of years, and the complaint pursued in this Tribunal arose when the Respondent applied the 55 WLB cap and did not restore the larger carry-over figure (Facts: paragraphs 20–27 and 22). In those circumstances, any earlier over-allocation years would form background; the operative event for limitation purposes would still be the autumn 2024 capping decision and its consequences. In any event, if a “series” were established, section 23(4A) ERA 1996 would limit recovery in respect of deductions or payments more than two years before presentation of the claim (Law: paragraph 37).
Conclusions
[1]In light of the List of Issues (paragraph 5(a)–(f)), I give my answers with the same references.[2]Issue (a) (worker status): the Claimant is and was employed by the Respondent under a contract of employment and is a “worker” for the purposes of Part II ERA 1996. This was not in dispute.[3]Issues (c) and (e) (“wages” and “properly payable”): the Claimant has not established that the monetary sum he seeks (compensation said to be due by reference to accrued/removed WLB carry-over) was “wages” properly payable to him within section 27 ERA 1996. In particular, there is no express contractual entitlement to paid overtime, and the evidence does not establish an implied term (whether by custom and practice or otherwise) entitling the Claimant to payment calculated by reference to excess WLBs (Facts: paragraphs 15–17 and 20–29; Application: paragraphs 44 and 46– 50).[4]Issue (d) (“deduction”): because no wages were properly payable in the first place, the capping of carry-over within WAMS did not constitute a deduction from wages within section 13(3) ERA 1996. The complaint of unauthorised deductions from wages is not well-founded (Application: paragraphs 65 and 66).[5]Issue (b) (time limits): given my findings on issues (c)–(e), it is not necessary to determine time limits. In the alternative, if (contrary to my primary conclusion) the autumn 2024 capping event gave rise to wages properly payable, I would have treated the complaint as crystallising in October 2024 and therefore (subject to ACAS Early Conciliation) capable of being brought in time. I would not have treated the historic accrual of carry-over over prior years as a “series of deductions” from wages in the ordinary sense; and in any event the two-year backstop in section 23(4A) ERA 1996 would limit any recovery in respect of earlier periods (Application: paragraphs 51–52).[6]Issue (f) (remedy/disposal): as the complaint is not well-founded, no declaration or compensation is made under sections 24–25 ERA 1996. The complaint of unauthorised deductions from wages is dismissed.