Mr L Ryan v Maxx Bridgend Ltd: 1601103/2018
JUDGMENT
[1]The claimant’s unlawful deductions for wages claim under s.13 Employment Rights Act 1996 is well founded. The respondent is ordered to pay the claimant the sum of £882.65 (net) in respect of the claim. _________________________________ Employment Judge RL Brace Dated: 26 June 2019[2]JUDGMENT SENT TO THE PARTIES ON 27 June 2019 FOR THE SECRETARY OF EMPLOYMENT TRIBUNALS Case Number: 1601103/2018 2 NOTE: This is a written record of the Tribunal’s decision. Reasons for this decision were given orally at the hearing. Written reasons are not provided unless(a) a party asks for them at the hearing itself or(b) a party makes a written request for them within 14 days of the date on which this written record is sent to the parties. This information is provided in compliance with Rule 62(3) of the Tribunal’s Rules of Procedure 2013.[3]Case Number: 1601103/2018 10.7 Judgment with reasons – rule 62 1 EMPLOYMENT TRIBUNALS Claimant: Mr L Ryan Respondent: Maxx Bridgend Ltd Heard at: Cardiff On: 26 June 2019 Before:REASONS
[1]The parties before me today include the claimant, who is a litigant in person, who was accompanied by his mother as support, and the respondent represented by Mr Beamer of Counsel. Evidence was given by the claimant and, for the respondent, Mr Mahon one of the directors of the company.[2]The respondent was given the opportunity to cross examine the claimant and likewise, the claimant was given the opportunity to cross examine Mr Mahon.[3]There is before me a bundle of documents provided by the respondent, the claimant having forgotten to bring along some documents in relation to the case today. Despite being given the opportunity to consider whether or not he wished for an adjournment to obtain the documents, he chose to proceed without them. Case Number: 1601103/2018 10.7 Judgment with reasons – rule 62 2[4]The issue before me relates to unpaid wages leading up to the termination of employment. The respondent accepts that the claimant has not been paid the sum of £882.65 net in respect of wages up to the termination of employment.[5]The claimant makes a claim today of that amount under Section 13(1) Employment Rights Act 1996 (“ERA 1996”) which provides as follows: “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”.[6]Whilst the respondent does not dispute that there were wages owed to the claimant up to the termination of employment, it relies on s.13(1) ERA 1996 and the specific deductions clause set out in clause 8 of the contract of employment dated 2 October 2017 entered into between the claimant and the respondent.[7]When considering whether or not such a contractual term is enforceable, I have to consider whether or not it is enforceable in common law if it is to authorise a deduction under S.13 ERA 1996.[8]I have reminded myself that when considering s.13 ERA 1996 and any deductions clause in an employment contract, the clause in the employment contract should be subject to considerable degree of scrutiny not least because of the disparity in economic power between the employer and the employee.[9]s.13 ERA 1996 also applies only where the written term authorising the deduction has been entered into before the deduction is made. This provision is satisfied if the employee is given a copy of the contract before the deduction.[10]Once established that there is a contractual provision authorising the type of deduction, I then go on to consider whether the actual deductions were justified.[11]It is accepted by the parties that the claimant was owed the sum of £882.65 net in respect of wages earned in the period leading up to termination of employment. As indicated the critical issue is the contract of employment of the claimant and the particular clause authorising the deduction.[12]In relation to my findings, the claimant commenced a period of employment with the respondent on 1 October 2017. This was a second period of employment with the respondent, the claimant having previously worked for the respondent in its Swansea branch for three years. Case Number: 1601103/2018 10.7 Judgment with reasons – rule 62 3[13]During that earlier period of employment, the respondent managed credit card payments by allowing the manual inputting of credit card numbers together with signatures from the customer, as well as utilising the chip and pin method insofar this latter method had had been introduced for some ten years.[14]I heard evidence from the claimant that on returning in October 2017, he received no updated training on credit card purchases, and he believed that it was still accepted practice to allow manual inputting and signature from the customer.[15]I accepted that evidence, in terms that the company had provided no updated training and that as a result it was reasonable for the claimant to believe, and that he did in fact believe, he could continue to take manual card purchases.[16]On or around the first day of employment the claimant was provided with a contract of employment. The evidence from the claimant is that he was pressurised to sign the contract that day and that if he did not sign he could effectively lose his job. The respondent challenges this. Notwithstanding that dispute, the claimant did in fact sign the contract and did not object to any of the provisions including, in particular, the deductions clause which was clearly set out in that contract at clause 8.[17]The first bullet point at Clause 8 provides as follows: ‘The Company reserves the right to require the employee to repay to the Company by deduction from your pay• any fines, penalties or losses sustained during the course of your employment and which were caused through your conduct, carelessness, negligence, recklessness or through breach of the company rules or any dishonesty on your part. ‘[18]I found that this was the appropriate clause that the respondent was seeking to rely on in this scenario.[19]The clause was included in the contract of employment agreed by the claimant and was therefore potentially enforceable by the respondent to set off against a s.13 ERA 1996 claim from the claimant.[20]However, having heard evidence from the claimant I accepted that he had been pressurised to enter into the contract which caused me concern as to whether or not that clause was enforceable in these particular circumstances. Notwithstanding that, I also considered whether or not the terms arising in the clause would have been enforceable in any event.[21]On 18 October, just some two weeks after the claimant had commenced working for the respondent again at the Nolton Street store in Bridgend, two customers purchased some items which resulted in considerable losses to the respondent as the purchases were made on stolen credit cards. Case Number: 1601103/2018 10.7 Judgment with reasons – rule 62 4[22]Rather than recite the events of that day I simply refer to page 36 of the respondent’s documents, and the statement that the claimant wrote on or shortly after that event. I accepted that version of events.[23]The respondent is a buy, sell and trading store where buy back is also available, and the claimant was a store assistant at that shop. The claimant accepted that the customers on the day looked suspicious but that due to the area that the business operated in, and due to the unfortunate circumstances that most customers found themselves in that used that store, if being suspicious of a customer was a criterion for not allowing a sale, sixty percent of customers would be turned away. I accepted that evidence.[24]Having accepted that evidence, having found that the claimant had no fresh training on the respondent’s change in policy on allowing signatures on credit cards, and having read the claimant’s statement at page 33 and accepted that version of events, I found that the respondent had not suffered loss as a result of the conduct, carelessness, negligence, recklessness and/or breach of company rules or any dishonesty by the claimant.[25]Rather the company had suffered loss as a result of fraudulent use of the cards by customers.[26]Whilst such a loss is no doubt terribly unfortunate for the respondent, and I make no comment as to whether or not the respondent is in a financial position to sustain that loss and I accept that may not be the position, I cannot find that the respondent was entitled to make a deduction from the claimant’s wages in respect of that loss.[27]Whilst I accept that it is extremely hard for any company to sustain these financial losses in these economic times, as the company is not able to justify utilising the deductions clause to deduct sums from the claimant’s wages, I therefore conclude that the claimant’s claim for unlawful deduction from wages in the sum of £882.62 net is well founded and order the respondent to pay to the claimant a sum of that amount.