Mr C Hobbs and others v Royal Mail Group Ltd: 1403276/2023 and others
JUDGMENT
The claims that the Respondent made unlawful deductions from the Claimants’ wages are dismissed.REASONS
[1]In this case the Claimants, bring monetary claims for unpaid wages. The issues and procedural matters[2]The claims were brought under separate claim forms and all were presentedwithin the time limits. On 27 September 2023, the claims were consolidated to be heard together.[3]At the start of the hearing the issues to be determined were discussed. Itwas agreed that they were:(1) what was the Claimant’s contractual entitlement to pay between September 2021 and February 2023,(2) was it paid, and(3) a secondary issue of whether they worked more than 37 hours per week in that period.[4]The Claimants’ witness statements was broadly similar. The Claimantsdecided to call one witness, followed by the Respondent’s evidence. Before closing submissions the Claimants were asked whether they wanted to call any additional oral evidence. Mr Cooper had taken instructions and informed the Tribunal that the evidence would be the same and that additional witnesses would not be called to give oral evidence. The parties then made closing submissions.The evidence
[5]I was provided with witness statements from Mr Hobbs, Mr George, MrLloyd, Mr Coles and Mr Turner and Mr Leathem on behalf of the Claimants. I was also provided with a witness statement from Mr Mooney, Regional Programming Manager for the Respondent. I heard oral evidence from Mr George and Mr Mooney.[6]I was provided with two bundles of documents references in Squarebrackets ending with a ‘C’ are references to pages in the Claimant’s bundle and references ending with an ‘R’ are references to pages in the Respondent’s bundle.[7]All witness were honest when giving their evidence.The facts
[8]I found the following facts proven on the balance of probabilities afterconsidering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[9]The Claimants’ contracts of employment provided that they were paid aweekly rate, which was pro-rata for part time workers, this was supported at p136R. Full time hours were initially 38 hours per week. A part time employee was someone who worked fewer than 38 hours per week.[10]There was no contractual right to overtime. Overtime was only paid withsuitable line management approval, for which an application needed to be made by the employee.[11]Before September 2021 all Claimants worked at the Long Ashton DeliveryOffice. This was a small satellite delivery office attached to the Bristol South Delivery Office. At this time, the full time weekly rate of pay was £458.04 gross.[12]In 2021 the Respondent entered into a framework agreement with theCommunication Workers Union, called The Pathway to Change 2021. Part of the agreement involved the implementation of a shorter working week, reducing it from 38 to 37 hours. The overall work to be done would stay the same, but it was to be undertaken more efficiently and completed over the slightly shorter period. There was not a pay rise associated with the change and the full time weekly basic pay remained the same.[13]The change was implemented at Bristol South Delivery Office in aboutJuly/August 2021, this was following agreement with the employees at that site.[14]There was a dispute as to when the revision occurred at Long AshtonDelivery Office. It appeared that the Claimants were not consulted in the same way as staff in other delivery offices. Mr George said it was not completed until 2023.[15]Pay roll changed the Claimants’ income hours to 37 hours per week asfollows:(a) Mr Hobbs: Period 24 payment date 17/09/2021 with pay of £458.04 gross. The previous week had 38 income hours with the same amount of pay. [p169R](b) Mr George: Period 26 payment date 01/10/2021 with pay of £458.04 gross. The previous 2 weeks were for 38 hours for which he was paid £470.42 per week. Prior to that he was paid for 35 hours per week at £421.88 per week. The hourly rate for when the Claimant worked 35 hours per week was £12.05, which was the same hourly rate as his colleagues working 38 hours per week. [p171R](c) Mr Lloyd: Period 24 payment date 17/09/2021 with pay of £458.04 gross.The previous week had 38 income hours with the same amount of pay. [p173R](d) Mr Coles: Period 21 payment date 27/08/2021 for which he was paid£445.99 gross. Prior to that he worked 35 hours per week at £421.88 gross. These periods were paid pro rota to the 38 hour week rate of £458.04. In period 24 payment date 17/09/2021 his pay was increased to £458.04 for 37 hours work. [p175R](e) Mr Turner: Period 24 payment date 17/09/2021 with pay of £458.04 gross. The previous week had 38 income hours with the same amount of pay. [p177R](f) Mr Leathem: Period 24 payment date 17/09/2021 with pay of £458.04 gross. The previous week had 38 income hours with the same amount of pay. [p179R][16]The Claimants received a pay rise in September 2022, when a week’s paywas increased to £467.20.[17]The Claimants said that for the weeks when payroll changed their hours to37 hours per week in period 24 in September 2021, that they were still being required to work 38 hours per week and that this was not resolved until 27 February 2023.[18]Mr George’s evidence was that his hours decreased as expected but therewas not a change to his walk and so he was performing additional work for which he was not paid. In other words that he was still working 38 hours a week. The other Claimants’ witness statements were similar to Mr George’s witness statement.[19]I accepted Mr George’s evidence that one walk was to be broken up andsplit between the other 4 walks at Long Ashton and that the Respondent used an agency worker to cover the walk to be broken up. Mr George had difficulty getting his PDA to scan in and scan out and therefore there was less data for his start and finish times. I accepted his evidence that none of the Claimants applied for overtime during the period September 2021 to February 2023.[20]The Respondent provided the Scan In/Scan Out data for when theClaimants attended and finished work, for the weeks commencing 10 October 2022 to 24 April 2023 [p164-168R]. 37 hours per week equated to 7 hours 24 minutes per day. The data showed that, on some occasions, each Claimant worked in excess of 7 hours 24 minutes in a day, however there were also many occasions when they worked fewer hours. The data suggested that on average the Claimants were working less than 37 hours per week during the period between 10 October 2022 and 27 February 2023. Mr Coles undertook more days, than the other Claimants, with hours in excess of 7 hours 24 minutes, however his average still suggested that he worked less than 37 hours per week. Other than oral or written testimony the Claimants did not put forward evidence showing that they were working in excess of 37 hours a week in the disputed period. I accepted that sometimes an unused portion of the daily 40 minute meal break meant that there was an earlier finishing time, however I was not satisfied that even with making such an allowance it would change the average times to the extent that it meant the data would show an average working time in excess of 37 hours per week. I was also satisfied that when the PDAs successfully scanned onto the system, the clocking in and out times were accurate.[21]I concluded that the Claimants had not kept records of their working hours.They undertook the same work before and after September 2021. The data provided by the Respondent was not complete however it tended to show that they were not working in excess of 37 hours per week. The data was for a significant period of time and pointed away from the Claimants working 38 hours per week during the relevant period. On the balance of probabilities I was not satisfied that they were working 38 hours per week between September 2021 and February 2023.[22]The Claimants raised a grievance with their managers, however it was notresponded to.The law
[23]The claimants claim in respect of deductions from wages which they allegedwere not authorised and were therefore unlawful deductions from their wages contrary to section 13 of the Employment Rights Act 1996, which provides: 13 Right not to suffer unauthorised deductions(1) An employer shall not make a deduction from wages of a worker employedby him unless— (a) the deduction is required or authorised to be made by virtue of astatutory 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, meansa provision of the contract comprised— (a) in one or more written terms of the contract of which the employer hasgiven 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, ifexpress, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer toa 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.(4) Subsection (3) does not apply in so far as the deficiency is attributable toan error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker's contracthaving effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by aworker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.(7) This section does not affect any other statutory provision by virtue of whicha sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.Conclusions
[24]The Claimants were paid a basic rate of pay for a week’s work. Prior to thePathway to Change 2021 this was £458.04 gross based on a 38 hour week. If an employee worked part time, their pay was paid pro rata. There was not any contractual entitlement to paid overtime and any overtime had to be agreed to and approved by a line manager. The Claimants submitted that they had a contractual entitlement to an additional hour of pay because the basis for a weeks basic pay changed from 38 to 37 hours and part time work was pro rata. I rejected that submission. The Respondent had a basic rate of full time pay. Part time employees were those members of staff who worked less than full time hours and the contract only provided for pro rata pay for those employees who were working less hours than a full time employee. If a full time employee worked in excess of their contracted hours they were not automatically paid an additional sum. A full time employee could only receive an additional sum for extra hours worked if they applied for overtime and it was approved by a line manager. This strongly pointed away from there being an uplift, pro rata, if an employee worked more than the basic weekly rate hours. I was not satisfied that the parties agreed at the start of the contracts or subsequently, that if additional hours over the basic full time hours were worked that there would be a pro-rata increase. Such a term would make a nonsense of there being no contractual right to overtime.[25]In September 2021, the income hours for all Claimants were recorded as37 hours per week, for which they were paid £458.04 a week gross.[26]I was not satisfied that there was any contractual entitlement to be paid anadditional sum if more than 37 hours per week were worked, without the express agreement of an appropriate line manager. The Claimants made no request for overtime during the relevant period. The Claimants received a weekly wage which they were paid. I was not satisfied that there was a contractual entitlement to be paid for hours worked over the full time week.[27]The Claimants were not contractually entitled to an additional sum for hoursworked over 37 hours during the period September 2021 to February 2023. They were paid the weekly wage of £458.04 until September 2022 when it was increased to £467.20. These were the contractual sums for a week’s work. As such I was satisfied that they were paid in accordance with their contracts and that there were not unlawful deductions from wages. The Claimants naturally felt this was unfair, on the basis that the revision was put in place for Bristol South, for which I had sympathy. However, what was relevant to consider was what they were contractually entitled to. They were paid in accordance with their contractual terms.[28]In any event, the Claimants were unable to prove on the balance ofprobabilities that they were working in excess of 37 hours per week during the relevant period. The Scan In/Scan Out data tended to show that they were working on average less than 7 hours 24 minutes per day, in other words that they were not working in excess of 37 hours per week in the relevant period. Even if there was a contractual entitlement to additional pay for hours worked in excess of 37 hours I was not satisfied on the balance of probabilities that the Claimants actually worked 38 hours per week in that period and that, on their cases, there would have been a shortfall in pay.[29]Further the Scan In/Scan Out data in the Respondent’s bundle started inOctober 2022. This was more than 3 months before any Claimant notified ACAS of the dispute. Any earlier matters would therefore have been presented out of time. The Tribunal would not have jurisdiction to hear such a part of the claim unless it was part of a series of deductions ending within the time limit, unless it could be established it was not reasonably practicable to present the claim in time. No evidence was adduced in this respect.[30]I was not satisfied that the Respondent had unlawfully deducted wages fromthe Claimants’ pay between September 2021 and February 2023 and the claims were dismissed.