Mr S Ibrahim v Maidstone and Tunbridge Wells NHS Trust: 2300321/2020
EMPLOYMENT TRIBUNALS
Case No 2300321/2020
Between
Mr S IbrahimClaimantMaidstone and Tunbridge Wells NHS TrustRespondent
Before
Employment Judge CheethamDate 13 September 2020
JUDGMENT
[1]The Claimant was entitled to receive “full pay” throughout the period of his suspension.[2]If the parties are unable to agree what amount that should be, they should apply to the employment tribunal for a remedies hearing to determine the amount.
REASONS
[1]This has been a remote hearing on the papers, which the parties have not objected to. The form of remote hearing was: V - video. A face to face hearing was not held because it was not practicable and the issue of the future determination of the claim could be resolved from the papers. The documents that I received were those contained in the Tribunal case file.[2]By a claim form lodged on 22 January 2020, the Claimant - Dr Ibrahim - has brought a claim for unlawful deduction of wages, following his dismissal as a “bank doctor” on 27 August 2019. The Claimant worked under a zero hours contract and the purpose of today’s hearing is to determine whether the tribunal has jurisdiction to hear his claim. In other words, the question is whether the Claimant, who was on a zero hours contract, was entitled to be paid when he was suspended.
The relevant law
[3]Under the Employment Rights 1996 s.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.(2) In this section “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised— (a) 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, or (b) in one or more terms of the contract (whether express or implied and, if express, 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 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. …[4]At s.27A, a zero hours contract is defined as follows: (1) In this section “zero hours contract” means a contract of employment or other worker's contract under which— (a) the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker, and (b) there is no certainty that any such work or services will be made available to the worker.[5]There is no clear authority on the issue in question. The Respondent relied upon Coors Brewers Limited v Adcock [2007] ICR 983, CA, which arose from a claim for losses resulting from the employer’s alleged failure to introduce a new incentive scheme. There were a number of schemes that could have been chosen using different combinations of targets and incentives. Wall LJ stated:51. I agree with Chadwick LJ, whose judgment I have had the advantage of reading in draft, that if the scheme put in place by Coors was not a proper implementation of its obligation to its workforce, then the critical question in this appeal is that which I have identified in paragraph 42 above, namely whether the claim for damages which arises from Coors' failure to perform its obligation can be said to be an identifiable sum, failure to pay which is to be treated as an unauthorised deduction of wages.52. In answering these questions, and in particular the critical question identified in paragraphs 42 and 51, I have to say that I prefer the submissions made by Mr. Linden. In my judgment, the highest the case can be put for the claimants is that Coors was under an obligation to put in place a scheme which, properly and fairly operated, was capable of replicating the benefits of the BEPSS scheme. Whichever way one examines the case, however, the result is that that any payment due to the workforce under the 2003 incentive scheme was incapable of quantification in the Delaney v Staples sense. To put the matter another way, none of the claimants could properly say that on any given date in 2004, let alone the March date operated under the previous scheme, Coors had made an unlawful deduction of a quantified amount from their wages. For the reasons which Chadwick LJ sets out in his judgment, with which I respectfully agree, the claimants' remedy (if they have one) sounds in damages for breach of contract, not under ERA996 Part II .53. I therefore conclude that if the scheme, as operated, did not represent a fulfilment of Coors' obligation to create a replacement for the BEPSS , the result in jurisdictional terms is that the claimants would have suffered a loss, but that the amount of that loss was unquantified.54. Had Mr. Basu been able to advance his claim to the Tribunal on the basis that there had been a breach of an obligation on the part of the employer to pay a bonus of a specified amount (whether expressed in monetary term or as a percentage of gross earnings) — or even, perhaps, a term to be implied by custom and practice — that, every year on 30 March they would receive a bonus of x (whether expressed as £x or as a percentage of basic salary) I think it would be arguable that the claim was quantifiable, and that, as a consequence, the claim was justiciable as an unlawful deduction of wages.55. Mr Basu was, however, constrained to accept that the claim could not properly be advanced to the Tribunal on that basis. The fact is that the claimants were unable to quantify the breach, and required the Tribunal to do so. That, in my judgment renders the claim one for damages for breach of contract, as opposed to a quantifiable claim for unlawful deduction of wages.56. Part II of ERA, as I read it, is essentially designed for straightforward claims where the employee can point to a quantified loss. It was designed to be a swift and summary procedure. Of course such claims would throw up issues of fact. The example canvassed in argument was of an employee being paid piece work, and asserting that his employer had deducted sums properly payable to him for work undertaken on the grounds that some of the items produced by the employee were defective. Delaney v Staples provides another example. Such a dispute would not take the case outside Part II of ERA 1996. I also accept that Part II is capable of expansion along Farrell Matthews & Weir v Hansen lines as envisaged by ERA 1996 section 27(3). However, in my judgment to extend it to the present case is a step too far.[6]Ms Balmelli referred to two authorities. First, Lucy and Ors v British Airways UKEAT/0033/98, which held that the fact that quantification is disputed and/or difficult does not exclude the claim from the scope of Part II of the ERA. After considering the above passage in the Coors Brewers case, HHJ Burke said (at para. 35): Employment tribunals are familiar with difficulties of quantification, such as may arise in a number of jurisdictions or contexts, including claims under Part II of the 1996 Act. When an employee who is entitled to commission, in addition to his ordinary wage or salary, claims that commission has not been paid or paid in full, he may not, until after detailed disclosure, be able to specify the amount owing; and there may be complex disputes as to the correct quantification or calculation of commission due, if any, which the tribunal may have to resolve. Such disputes are not restricted to mathematical issues; a tribunal may have to determine, for example, whether the employee played a sufficient role in the obtaining of a particular sale to qualify for commission. The same exercise may have to be carried out by a Tribunal in assessing compensation for unfair dismissal. Similar difficulties may arise in relation to unpaid bonuses and in many other ways. In such circumstances, albeit often with difficulty, the Tribunal has to quantify and does quantify the relevant sum; such claims are quantifiable albeit not necessarily brought for a quantified sum. To this extent I agree with Mr Hogarth's arguments. I can see no reason based on principle or upon the judgment in Coors which would prevent a tribunal from considering under Part II a commission-based employee's claim to unpaid commission, even if the employee was not able to put a figure upon the unpaid amount, at least until after disclosure. It surely cannot be the case that there is jurisdiction to hear such a claim if the employee guesses a figure and puts it into his claim form but there is no such jurisdiction if he claims “Whatever commission is found on the evidence to be owing”.[7]She also relied upon a first instance decision, Obi v Rice Shack Ltd Case No 2402057/2016 (ET). That concerned a claimant who worked under a zero hours contract and was suspended for a total of nine months pending a disciplinary investigation (which appears not to have taken place). There was no power to suspend in the contract, but it was accepted by the respondent in that case that, if an employer did in fact suspend, then there was no basis on which the claimant could be suspended without pay unless the contract expressly provided for this. During that period she was offered no shifts, and received no pay. After five months, she found another job, but did not tell the respondent. When the respondent again offered her work she declined it, and claimed for unlawful deductions from wages for the whole nine-month period.[8]The claimant argued that until such time as her contract was brought to an end, she was entitled to be paid her wages based upon her average weekly earnings and the ET agreed. Although the Employment Judge did not set out his reasoning, it was presumably upon the basis that there was no contractual basis to suspend without pay. However, there does not appear to have been any consideration of whether or not it made any difference that it was a zero hours contract and she was not being provided with work. For that reason and because in the present case there was a power to suspend, I do not think this case provides very much assistance. Although the case went on appeal (Rice Shack Ltd v Obi UKEAT/0240/17), the entitlement to pay was not an issue before the EAT.
The relevant facts
[9]The relevant facts are not in dispute. The Claimant joined the Respondent’s internal staff bank as a Bank Doctor (Surgical Registrar) on 10 January 2018. The Statement of Terms and Conditions of Registration with Staff bank stated at clause 1 (Tenure): You are registered on the Maidstone and Tunbridge Wells NHS trust staff bank on a paid as worked, as required basis. There is no obligation for the trust to offer work.[10]Clause 8 stated: We expect the highest standards of conduct from our workers. The disciplinary rules and procedures relating to your registration, including the managers with the authority to terminate your registration are contained in the Trust Disciplinary Policy, Procedures and Rules document which is available on the Trust intranet.[11]In or about March 2019, the Claimant was the subject of a number of allegations, all relating to his personal conduct, as a result of which he was suspended from duty on 22 March 2019. The relevant provisions relating to suspension are set out in the Respondent’s Disciplinary Policy. No distinction is made in this Policy between those working on zero hours contracts and those working on any other types of contract. At clause 5.5.4 it states as follows: Suspension will normally be on full pay and benefits (including any additional allowance per normal shift pattern) and should be reviewed regularly by the suspending manager. However, there may be occasions in exceptional circumstances that suspension on low pay might be considered. Such situations should be discussed with the senior HR representative.[12]The Respondent also has a “Doctors’ Conduct and Performance Policy and Procedure”, which incorporates the principles of Maintaining High Professional Standards (“MHPS”). At clause 5.1.11, it states: Exclusion under this procedure will be on full pay and the doctor must therefore remain available for work with their employer during their normal contracted hours. The doctor will be reminded of these contractual obligations but will be given 24 hours’ notice to return to work. In exceptional circumstances the Case Manager may decide that payment is not justified because the doctor is no longer available for work (e.g. abroad without agreement).[13]The suspension letter (5 April 2019) contained the following provisions: Exclusion is an entirely neutral act; it does not prejudice you in any way whatsoever. The decision has been taken in order to allow the Case Investigator to continue with a formal investigation into the serious concerns outlined against you. The purpose of clarity this formal exclusion will run from Friday 5th April 2019 to Friday 3rd May 2019. As previously noted in my letter of 22nd March 2019, during this period of formal exclusion you will be unable to carry out further work within the Trust. You must also seek my consent, if you intend to undertake either voluntary or paid work elsewhere during the period of exclusion. … As previously noted in my letter of 22nd March 2019, please ensure you remain contactable during office hours (9.00 am to 5.00 pm) and make yourself available, sometimes at short notice, to attend meetings as requested by management.[14]The Claimant remained suspended (with the suspension being extended by successive letters) until his summary dismissal on 27 August 2019. Submissions[15]Ms Balmelli provided clear and helpful written submissions, which she developed orally. She argued that, if he were not paid, then the Claimant would be suspended without pay and that was contrary to the Respondent’s policy. She submitted that, at the heart of this issue, is the interpretation of the words “full pay”. Whereas the Respondent contends that in a zero hours contract “full pay” in this case means no pay at all as the doctor will not have worked while on suspension, she would contend that in a zero hours contract “full pay” means the specific doctor’s average monthly wages for the period he is on suspension.[16]With regard to Coors Brewers, Ms Balmelli submitted that this case is very different, in that it is simple to work out the Claimant’s average earnings and there is a specific period during which he says the unlawful deductions occurred. Therefore his claim is easily quantifiable.[17]Mr Fletcher’s submissions were also clear and concise. Firstly, the Claimant had no contractual entitlement to be provided with work (or pay), consequently, no wages were "properly payable" to him. Secondly, the reference to suspension being “normally on full pay” has to be read in the context of a zero hours contract, where the employee does not have “normal hours”. Thirdly, in reliance on Coors Brewers, the Claimant is unable to point to a quantifiable loss due to the nature of his working arrangement and the variance in his hours and pay. In response to Ms Balmelli’s point about the Claimant having to be available during suspension, Mr Fletcher said that he was only asked to be contactable and to ask permission before working elsewhere.
Conclusions
[18]Under the contract, the Claimant was engaged on a “paid as worked, as required basis”. The Respondent was not obliged to provide him with work, but was obliged to pay him if it did so. That means they could have chosen to offer him no work from the time the allegations were made or simply terminated his registration and I do not think the Claimant could have done anything to prevent that.[19]However, the Respondent chose to suspend him and, during the period of his suspension, required him to be contactable and available for meetings and also required him to obtain their permission before working elsewhere. There was therefore a difference between the Claimant being suspended and simply not being provided with work. It may have been a neutral act in terms of any pre-judgment about his culpability, but it was not a neutral act if it denied him the opportunity to work and earn a living.[20]Under the Trust’s disciplinary policy, suspension is “normally on full pay”. I agree with Mr Fletcher that a worker on a zero hours contract is only entitled to be paid when provided with work, so “full pay” is the full entitlement to pay when provided with work. I do not agree, however, that must therefore mean “no pay” when the Claimant was suspended, as he was not being provided with work. Although that argument has a certain logic, it disregards the purpose and effect of suspension.[21]The purpose of suspension on full pay is to maintain the status quo and not to cause financial detriment to the worker, pending resolution of the complaints. The status quo was not the Claimant’s inability to work, but – to paraphrase s.27A - the Claimant’s undertaking to perform work conditional on the employer making work available.[22]The effect of suspension for the Claimant on a zero hours contract was to deny him the opportunity to work for the Respondent, which is different to not requiring him to work. The suspension overrides any requirement. For example, if there was a period during which the Claimant was not required to work, he could - without any restraint – seek alternative work. While suspended, he was not provided with work, but he also could not obtain alternative work without permission and had to remain contactable and available, even though the condition of making work available to him no longer applied.[23]In my view, on a proper reading of the Respondent’s policy, suspension on full pay applied equally to all workers, including those on zero-hours contracts. A different conclusion would ignore the purpose and effect of suspension. In other words, I would conclude that workers on zero hours contracts should also receive full pay during suspension, by which I mean pay that reflects what they would have received had they been required to work.[24]I am not sure Ms Balmelli is assisted by MHPS, because these were not allegations of “professional misconduct”, but I do not think we need to go that far and enter into that debate. I also do not think that the decision in Coors Brewers stands in the way of the conclusion. The sums claimed by the Claimant are certainly not unquantifiable; they can be fairly easily calculated, for instance by taking an average over the 12 month period prior to suspension. It seems to me that this is the sort of case HHJ Burke had in mind in Lucy and Ors.[25]If the parties are unable to agree how to calculate what the Claimant should have been paid during his suspension, then they should apply to the employment tribunal for a short remedies hearing before me. However, I hope that is something they can resolve between themselves. The application for reconsideration is refused.[2]The case is provisionally listed for a remedies hearing on 27 and 28 September 2021, as set out below.
Conclusions
[1]This has been a remote hearing on the papers, which the parties have not objected to. The form of remote hearing was: V - video. A face to face hearing was not held because it was not practicable and the issue of the future determination of the claim could be resolved from the papers. The documents that I was referred to are those contained in the Tribunal case file, the previous hearing bundle and a supplementary bundle, the parties’ written submissions and authorities, as well as correspondence regarding the application for reconsideration.[2]At a hearing on 22 August 2020, the Claimant was held to be entitled to receive “full pay” throughout the period of his suspension. The application[3]On 6 October 2020, the Respondent applied for reconsideration of that judgment. As clarified by Dr Burke at the start of this hearing, there were three grounds to the application:(i) the Respondent was not afforded a fair hearing, because it was not given sufficient opportunity to argue its full case, given its expectation of what the hearing would cover, namely a discrete jurisdictional issue.(ii) If the claim were to proceed at all, it could only proceed as a breach of contract claim. It could not proceed on the basis of an unauthorised deduction of wages and to find it did so was an error of law.(iii) The finding that the claim could proceed was irrational, because there was no proper basis for any sums to be payable. There would have to be an exercise of discretion over whether the Claimant would receive any pay.[4]I asked Dr Burke to clarify the grounds upon which the application was made, because it was not completely clear what they were from the application letter. That letter goes further than the grounds set out above, in that it also includes: criticisms of the Claimant’s counsel; that, although the hearing was an open hearing, it was – in terms – wrongly converted to a “full hearing”: further, the grounds of resistance were not considered in detail and no material evidence was presented. However, we proceeded with the application on the basis of the three grounds set out above. Reconsideration[5]Under Rule 70 of the Employment Tribunal Rules, a Tribunal has power to reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the original decision may be confirmed, varied or revoked. If it is revoked it may be taken again.[6]I was referred to a number of authorities on the correct approach to applications for reconsideration, which I have taken into account. In particular, in Outasight VB Ltd UKEAT/1253/14, HHJ Eady QC held that, although tribunals have a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances, this discretion must be exercised judicially. This meant, “having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation” [§33].[7]In Trimble v Supertravel Ltd [1982] ICR 440, the EAT made the following observation: “We do not think that it is appropriate for an industrial tribunal to review their decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by this appeal tribunal.” Submissions[8]Both counsel had prepared helpful written submissions, which they developed orally. In support of the application, Dr Burke submitted that the judgment should have been confined to whether the claim could proceed as pleaded. The hearing “morphed” into something more, whereas its purpose was to determine jurisdiction only. He referred to the previous case management orders, which referred to the jurisdictional issue. Preparation for the hearing was therefore confined to that issue.[9]Dr Burke drew a distinction between deciding in principle whether the Claimant was entitled to be paid and actually deciding his entitlement. The hearing should not have strayed beyond the former. He said that the following wording at §2 of the Reasons was too broad: “… the purpose of today’s hearing is to determine whether the tribunal has jurisdiction to hear his claim. In other words, the question is whether the Claimant, who was on a zero hours contract, was entitled to be paid when he was suspended”.[10]The crux of Dr Burke’s submissions was that there should have been a further stage of applying the principle established (in other words, that the Claimant was held to be entitled to receive “full pay” throughout the period of his suspension) to the factual matrix of the case and therefore of asking whether the Claimant was nevertheless permitted to receive what he sought. That stage was in addition to a remedies hearing (which therefore might be unnecessary), even if the remedies hearing were to find that the Claimant was entitled to receive nothing. Expanding the ambit of the hearing and not seeking the parties’ consent to convert it to a full merits hearing was prejudicial to the Respondent.[11]Dr Burke identified the arguments that could have been raised at the additional stage as follows:(i) whether the Claimant was able to work for a third party;(ii) any arguments relating to fraud; and(iii) contractual analysis; in other words, regardless of the principle, whether this contract allowed any payment.[12]These are not quite the same as those contained in the written application for reconsideration, which also refers to the lack of any mutuality of obligation.[13]Dr Burke also said that the decision was irrational, which amounted to an error of law. There could be no contractual right to payment in the absence of both parties’ agreement. Any payment would not be pursuant to any legal obligation.[14]For the Claimant, Ms Balmelli went through what had been considered at the previous hearing by way of pleadings and documentary evidence. That hearing dealt with the specific contract and there was nothing further that needed to be analysed. The Respondent’s argument ignored the fact that, once the decision had been made that the wages were “properly payable” and the Tribunal therefore had jurisdiction to hear the matter, there were no defences pleaded to the claim for unlawful deductions. There were therefore no remaining merits issues that needed to be dealt with. She made the particular point that fraud was not pleaded and neither was it argued previously.[15]As to the contract, there was no dispute that the contract referred to was concluded and that the correct policy was incorporated into the contract. It was therefore unclear what other contractual representations needed to be made, as it was common cause between the parties at the Hearing which documents were applicable. Discussion and conclusion[16]This is not an appeal hearing, but a reconsideration, so the question is whether it is necessary in the interests of justice to vary or revoke the judgment. Therefore, I do not think the arguments around irrationality and errors of law can go further at this hearing, as they are issues for the appeal. To be fair to Dr Burke, he accepted in argument that was probably the case, but it brings the focus of the application to the first ground, as grounds two and three both amount to arguments around errors of law.[17]I asked Dr Burke what purpose would be served by the additional hearing he said should take place. If the principle was correct and the Claimant was entitled to receive “full pay” throughout the period of his suspension, then the only issue that remained was the extent of any entitlement, which could of course be nothing. I asked whether that could not be considered at a remedies hearing, when the additional arguments that he identified could be raised (although I struggle fully to understand the third argument)? Dr Burke’s response was that there should be an opportunity to hear witness evidence and he drew the distinction between liability and remedy, between the liability to make a payment and the extent of that payment.[18]However, if these further arguments do not challenge the principle itself, but only the “factual matrix of the case”, I cannot see that the Respondent is denied the opportunity of raising them or otherwise prejudiced if the case remains listed for a remedies hearing. If the crux of this application is that the Respondent was denied the opportunity to raise arguments, then the short answer is that they can do so at the remedies hearing. The Claimant may, as a result, be entitled to nothing. Putting that in terms of the application for reconsideration, I am not persuaded that it is in the interest of justice to vary or revoke the judgment.[19]Dr Burke also raised the question of a stay, which we briefly discussed at the end of the hearing, because the Respondent has sought permission to appeal to the Employment Appeal Tribunal. Ms Balmelli objected and I note when writing up this decision that the application for a stay was first raised only in the Respondent’s written submissions.[20]I am not going to order a stay. As I understand it, the application for permission has yet to be considered in “the sift” and, if granted, there is unfortunately likely to be a considerable delay before any appeal is heard. At the same time, the delays in the employment tribunal system mean that a 2 day remedies hearing in this matter would not be listed before midSeptember 2021. It therefore makes better sense to list the remedies hearing, so at least that is in the diary. If permission to appeal is granted, then the application for a stay can be renewed, if so advised.[21]The remedies hearing has therefore been provisionally listed for 27 and 28 September 2021. The parties are asked to confirm by email their availability for that hearing (in emails marked for the attention of EJ Cheetham) within 14 days of this Judgment being sent to the parties. If that date is not convenient, they are asked to provide dates to avoid for October and November 2021.[22]Upon the hearing date being confirmed, they will then be asked to agree a timetable between them, to include a schedule of loss and any counter schedule, disclosure, a hearing bundle (in electronic form) and the exchange of witness statements.
Conclusions
Conclusions
[1]The Respondent will pay the Claimant the sum of £2,177.50.[2]The judgment of the Tribunal made at a hearing on 22 August 2020, whereby the Claimant was held to be entitled to receive “full pay” throughout the period of his suspension, is revoked by the Tribunal on its own initiative under Rule 70.
Conclusions
[1]At a hearing on 22 August 2020, the Claimant was held to be entitled to receive “full pay” throughout the period of his suspension. The Respondent subsequently applied for reconsideration of that decision, but that application was refused on 29 January 2021. At that stage, the Respondent indicated that it had applied for permission to appeal, but I was advised at this hearing that the appeal was subsequently withdrawn. Agbeze v Barnet NHS Trust[2]At the start of the hearing, I drew the parties’ attention to a very recent decision of the Employment Appeal Tribunal, Agbeze v Barnet NHS Trust [2002] IRLR 115. I gave the parties – who were not familiar with the decision – sufficient time to read it and to consider how it affected the matters to be considered at this hearing.[3]Agbeze was decided after the reconsideration application. It is directly relevant and there is even reference to the first instance decision in this claim in the EAT’s decision (although no consideration of it). Therefore, it was plainly correct to raise it with the parties.[4]In Agbeze, where the facts were very similar to this case, HHJ Auerbach explained that the source of an employee’s entitlement to be paid during a period of suspension must be contractual. If there is no express term to that effect, then such a term would have to be implied and – as he concluded – there is no basis to imply such a term.[5]At paragraphs 50 to 53, there is a passage that considers the contractual terms: 50. This was a claim for unlawful deduction from wages pursuant to Part II Employment Rights 1996. It could only succeed on the basis that average wages were "properly payable" to the claimant, during the period in question, within the meaning of section 13(3), that is, that he had a legal entitlement to be paid such wages. See New Century Cleaning Co Ltd v Church [2000] IRLR 27. In this case, as usually, what was relied upon was a contractual entitlement. 51. The source of such an entitlement could only be an express term of the contract or an implied term. As the authorities have from time to time explored, in some cases where there is an umbrella contract, this does more than just supply a reference point for the terms that apply during assignments, but also itself gives rise to some mutual obligations throughout the duration of the umbrella contract itself, including between assignments. In this case there were two expressly designated clauses of that type, relating to data protection and declaration of interest on joining the bank, but they were rightly not argued to be relevant here. 52. Ms Chan submitted that the express terms of the contract in this case were simply silent on the question of whether a period of suspension was paid or unpaid, as clause 13 did not address this. Mr Kennedy's position was that to imply a right to be paid during such a period would go contrary to the natural meaning of the express provisions of this bank contract. 53. As to that, the express terms of the contract included that:(a) save for the clauses that I have mentioned, its terms did not apply outside periods when the claimant was providing bank services (clause 1);(b) there was no obligation on the respondent to offer any work nor on the claimant to accept any offer of work (clause 1);(c) there were no regular hours, these being as required, and agreed (clause 3); and(d) remuneration would be based on Agenda for Change pay scales "according to the duties you are offered whilst providing bank services" (clause 6). Taken together the effect is clearly that the availability of work, and the willingness of the claimant to do it, are not sufficient to trigger an entitlement to wages. That only arises if the respondent chooses to offer an assignment, and the claimant chooses to accept it.[6]After a detailed consideration of the authorities (including those considered at the original hearing in this claim), HHJ Auerbach held as follows: 77. It seems to me that the creation of an implied term, as contended for in this case, would go significantly beyond that which could be rationalised as a necessary incident of all worker relationships, or even a reasonably necessary one, and hence it cannot be supported by the principles of implication that I take from authorities such as Irwin and Geys. It would be of a materially different kind from implied terms, such as the duty of trust and confidence, which reflect features that are inherent in all working relationships, or the term implied in a case such as Geys, which reflects the practically necessary incidents of a notice of termination of employment in every case. Nor do I think that common law principles support the implication of such a term into all worker contracts of the zero-hours or bank types. The introduction of such a term would materially alter the nature of contractual relationships of this type.[7]Applying that guidance to this present case, the correct question is therefore whether the express terms of the Claimant’s contract entitled him to be paid during the period of his suspension, given that no term to that effect can be implied. Reconsideration under Rule 70[8]In drawing Agbeze to the parties’ attention, I shared my concern that, had that guidance been before me previously, I would have adopted a different approach in analysing the claim and would most likely have reached a different conclusion. I suggested, therefore, that Rule 70 applied and the Tribunal on its own initiative would reconsider that original decision, as it was necessary in the interests of justice to do so.[9]Having had time to read and digest the decision and to take instructions, Dr Burke for the Respondent submitted that when one applied the decision in Agbeze to the facts of this case, it was plain that the Tribunal was previously in error in its approach and in concluding that the Claimant was entitled to be paid during the period of his suspension.[10]Very properly, Dr Burke set out the arguments that could be made by the Claimant. He pointed out that, whereas in Agbeze the disciplinary policy was not contractual, in this case the policy was at least referenced in the contract. The policy stated at (at para. 5.5.4) that suspension would “normally be on full pay”.[11]However, that was as far as it went and it was clear that in all other major respects, this case shared the features of Agbeze. The source of the entitlement to be paid during a period of suspension must be contractual and the contract did not contain that express provision. The reference to “normally” meant that it may or may not be paid (which was similar to Agbeze). At the time of the original decision, there was no clear authority on this issue, but now there was and the Tribunal could not ignore it.[12]Quite understandably, Mr Ibrahim was concerned by this development. He referred me to various matters, all of which I had addressed in my first judgment, but he was unable to meet the point that there was no express term requiring payment during suspension.[13]I therefore concluded that I had been in error in reaching my original decision. Contrary to the guidance now provided in Agbeze, I had reached my decision by effectively implying a term in the Claimant’s favour and that approach was no longer permissible. It is correct that there was no clear guidance one way or the other at the time, but as that guidance has now been provided, the Tribunal cannot ignore it.[14]Applying Rule 70, the Tribunal has therefore on its own initiative revoked that original decision, because it is necessary in the interests of justice to do so. I should add that, although disappointed, Mr Ibrahim was accepting of the fact that this case had to be considered and was very polite and understanding. Unauthorised deductions[15]There remained the residual claim for unauthorised deductions. First, there was a claim for loss of pay between 18 and 24 March 2019 in the (agreed) sum of £2,177.50 and which the Respondent accepts it should pay to the Claimant.[16]Secondly, the Claimant was also claiming for hours that he said that he had worked, but for which he had not been paid. This was based upon his contention that he should be paid from the time he first entered the Respondent’s car park. So, for example, on 2 March 2018, he drove in at 07:58 and drove out at 16:53. He was paid for the hours he worked and so the claim is for the additional time he was on site (on this day, he says, a further 25 minutes).[17]Dr Burke submitted that this cannot be correct. Apart from the fact that it is not the contractual basis upon which the Claimant was paid, the Respondent had no control over when the Claimant arrived in the car park. What if he chose to arrive an hour early and sit in his car making phone calls? Whereas the time he left the site could be an indicator of – for example – finishing early, it would not be feasible for an employer to pay staff in this way.[18]The Respondent is plainly correct on this second point. One need look no further than the contract, which makes clear that pay is in relation to working, rather than being present on site. However, as a matter of common sense, the Respondent could not pay the Claimant according to when he chose to arrive in the car park. This second claim for unauthorised deduction is therefore dismissed.