Mr Peter Flanagan v CBRE GWS Ltd: 2206190/2018
JUDGMENT
The Judgment of the Tribunal is that the Respondent did not make unlawful deductions from the Claimant’s wages.REASONS
[1]By a Claim Form submitted to the Employment Tribunal on 28 September 2018 the Claimant brought a complaint of unlawful deduction from wages.[2]There has been extensive delay in determining this matter, principally because the Claimant has not been well enough to attend a hearing. On 5 March 2020 the Claimant provided written consent for the matter to be determined on the papers. Thereafter there was some further delay caused by altered working practices during the Coronavirus Pandemic.[3]I was provided with a bundle of documents, witness statements form the Claimant and Rosie Hutton, HR Advisor, and Sarah La Roche, Head of People – Central Services; and written submissions (including replies). The matter has been made more difficult for the Claimant to understand as the Respondent has given a variety of inconsistent explanation of how it has calculated the deductions from his wages. However, on reviewing the totality of the evidence now available the position is clear.Findings of fact
[4]The Claimant is employed by the Respondent as Shift Team Engineer. His continuous employment commenced on 2 January 2002. The Claimant was initially employed by EMCOR. The Claimant’s employment transferred to Johnson Controls Limited pursuant to Transfer of Undertakings (Protection of Employment) Regulations 1981 on 1 July 2010. The Claimant’s current contract of employment was entered into with Johnson Controls Limited on 3 September 2015. The contract includes the following provisions:[5]The name of the Respondent changed to CBRE GWS Limited on 3 September 2015. The Claimant’s contract of employment remained in force.[6]At the relevant time the Claimant’s gross annual salary was £36,259.93 paid in equal monthly instalments of £3,021.67 (page 57). In addition, the Claimant received allowances of £714.47 per calendar month.[7]The Claimant commenced a period of sick leave On 30 August 2017, which is continuing.[8]Under the terms of the contract of employment the Claimant was entitled to receive full pay for the first 18 weeks of sickness absence, to 2 January 2018, inclusive of SSP. Thereafter the Claimant was entitled to receive SSP.[9]For the initial periods of absence the Claimant submitted Fit Notes on time. The Claimant did not initially submit a fit note to cover the period from 28 December 2017. It was not submitted until 11 January 2018. That was after the cut-off date for January 2020 payroll as a result of which the Claimant was paid in full for January. In total the Claimant was overpaid for 21 days from 3 January 2018 to 31 January 2018. The overpayment was of £2,928.69, calculated by dividing annual salary (excluding allowances), 36,259.93, by 260 as provided for in clause 2.6 of the contract of employment, then multiplying by 21.[10]On 21 February 2018 Ms Hutton wrote to the Claimant and stated:[11]The letter caused confusion as it referred to overpayment being £2,214.51 whereas it was, in fact, £2,928.69 (the sum given in the letter was the amount remaining after the first deduction) and referred to recoupment from “preceding”, whereas it meant subsequent months.[12]After the overpayment was made a decision was taken to continue paying the Claimant his allowance from which the overpayment could be recouped. The Respondent was not obliged to continue paying the allowances.[13]The payment were recouped as follows:13.1 The first deduction of £714.17 was made from the Claimant’s wages wages on 23 February 2018. (which reduced the outstanding amount to £2,214.51 as referred to in Ms Hutton’s letter of 21 February 2018.13.2 The second deduction of £714.17 was made from the Claimant’s wages on 23 March 2018.13.3 The third deduction of £714.17 was made from the Claimant’s wages on 25 April 2018.13.4 The foruth deduction of £714.17 was made from the Claimant’s wages on 25 May 2018.13.5 The fifth deduction of £ 72.01 was made from the Claimant’s wages on 25 June 2018.The Law
[14]Section 13 of the Employment Rights Act 1996 (“ERA”) provides a general right not to suffer unauthorised deductions from wages.[15]However, a deduction is not unauthorised if it is authorised by a relevant provision of the worker’s contract; s 13(1)(a) ERA. A relevant provision of the worker’s contract includes one that is in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question: s 13(2)(a) ERA.[16]Section 14(1)(a) provides that Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of an overpayment of wages.Analysis
[17]Despite the confusion cause by the correspondence in this matter the simple answer to this case is that the Respondent was entitled to make the deduction as it was to recoup an overpayment of wages and so section 13 was excluded by operation of section 14 ERA.[18]In addition, at least in respect of all but the fist and last of the deductions, the deduction was in accordance with the terms of his contract of employment as the Claimant was given advance notification that the deduction was to made and that it would be in the sum of his allowances. The use of the word preceding was a slip and the claimant must have been aware after seeing the first payslip with the sum of his allowance deducted that the sums were to be deducted from the subsequent month’s payment. In the case of the first deduction the letter did not give advance notice as it referred to the total sum to be recouped as being that after the first deduction had been made. The sum of the final deduction was not specified in the letter informing the Claimant that the deductions were to be made.[19]However, that does not affect my principal conclusion that section 13 was disapplied by section 14 ERA, because the deductions were all to recoup overpaid wages. Accordingly, the claim must fail.[20]The Claimant alleged that he was not paid for his the Bank Holiday on 1 January 2018. That is incorrect. The overpayment that was recouped was in respect of the period commencing on 3 January 2018.