Mr B Horan and Others v OCS Group UK Ltd: 2305191/2025 and Others
JUDGMENT
The unanimous judgment of the Employment Tribunal is as follows: The claimants’ complaints of unauthorised deductions from wages are not well founded and their claims are dismissed Page 1 of 5REASONS
Mr Horan requested written reasons at the hearing given that the other claimants are not present. I explained that these will be more formal and fuller than my oral reasons but will not vary substantially from those given on the day.[1]By a claim form which was presented by Mr Horan on behalf of himself and the other claimants on 10 June 2025, following a period of early conciliation between 17 April and 29 May 2025, the claimants brought complaints of unauthorised deductions from wages. However, they named the respondent as Hannah Harrop, who is not their employer but in fact the Senior HR Manager. By consent, I corrected the name of the respondent to that of their employer, OCS Security Ltd.[2]Each of the claimants are or were employed in the capacity of either Security Managers or Security Supervisors. Mr Horan represented all of the claimants at today’s hearing. He was the only claimant who was present. Ms Maher of Counsel, appeared on behalf of the respondent company.[3]The respondent provided me with the bundle of documents consisting of 158 pages and a separate index. I will refer to this bundle as “B” followed by the relevant page number.[4]I heard evidence from Mr Horan by way of a written statement and in oral testimony. Mr Horan gave evidence on behalf of all of the claimants given that there was a central factual matrix to put forward. I heard evidence on behalf of the respondent from Mr Jason Sherer, the sector Director for Security, Public Sector. At the end of the evidence I heard oral submissions from Mr Horan and Ms Mather.[5]In essence, the claimants are seeking a 10% pay increase which they say was awarded to other members of guarding staff but not to them in April 2024. The respondent denies that the claimants have any contractual right to a pay increase and therefore submits that the complaint is misconceived and cannot succeed.[6]The claim arises under section 13 of the Employment Rights Act 1996. In essence, this provides the following protection. Where the total amount of any wages that are paid by an employer to a worker is less than the total amount of the wages that are properly payable to the worker on that occasion, the amount of the deficiency will be treated as a deduction made by the employer from the worker’s wages, unless it is an authorised deduction. Such authorised deductions include those in respect of income tax, National Insurance contributions and those previously agreed or signified in writing.[7]The key issue here is whether the claimants can establish that the entitlement to the pay increase was properly payable to them. In other words is there some contractual entitlement to it?[8]The relevant findings of fact are relatively succinct. Page 2 of 5[9]The respondent provides facilities management services, including security services to clients in the private public sector.[10]The claimants are employed as Security Managers and Security supervisors on the respondent’s contract to provide security services to the Estates Operations Service, who are referred to as the Client.[11]The respondent’s contract with the Client is a Living Wage Contract so that all employees on the contract must be paid the Living Wage Foundation rate and any increase in that rate must also be given to the employees. The cost of any increase in the Living Wage rate can be passed onto the Client under the terms of the respondent’s contract with the Client. The contract in question is the Facilities Management Marketplace Contract with Client dated 21 December 2022, redacted extracts of which are at B150-158.[12]In April 2024, the Living Wage increased by 10%. All Security Guards working on the Contract therefore received a 10% increase in the rate of pay. The Supervisors and Managers were already paid more than the Living Wage Foundation rate and so did not receive a pay increase.[13]The claimants brought a collective grievance against the failure to award them the pay increase in April 2024, seeking recognition that there were issues of fairness and consistency and that in principle if there were to be a pay increase it should be backdated. However, the respondent merely agreed to make an approach to the Client in an attempt to seek funding for any pay award and indicated that this was subject to ongoing negotiations.[14]Whilst the initial decision at first instance was neither to uphold or not uphold the grievance at that stage (letter dated 16 December 2024 at B87-88 and on appeal in one letter dated 4 February 2025 at B114 to uphold the grievance and then in a further appeal outcome letter dated 19 March 2025 at B128- 129 not to uphold the grievance), the respondent did not alter its position as set out in the previous paragraph.[15]In cross-examination and answer to my questions Mr Horan accepted the following:a. under the standard terms and conditions of employment document and indeed within his own terms and conditions of employment, there is no contractual right to a pay rise but simply to a pay review. I was referred to B38-45. He further accepted that all security officers are on the same contract;b. Under the respondent’s Facilities Management Marketplace Contract with its Client which is at B150-158, at section 5, there is, in shorth an obligation to pay certain employees rates of pay which are consistent with the Living Wage and this includes guarding services, ie security guards (at B154);c. The pay award given in April 2024 to security guards was an increase in line with the increase in the Living Wage; Page 3 of 5d. At section 7 of the Facilities Management Marketplace Contract (at B157), the respondent has the ability to request a variation in the amount charged to the Client in respect of an increase in wages as a result of an increase in the Living Wage;e. Managers and Supervisors were paid more than the security guards, who are in receipt of the Living Wage and so Managers and Supervisors’ pay was not connected to the level of the Living Wage;f. At section 7.3.3 of the Facilities Management Marketplace Contract (at B158) there is an exclusion from the variation request in respect of those staff on an hourly rate already paid in excess of the Living Wage, whether or not to maintain differentials between what are known as Supplier Personnel and higher paid Supplier Personnel;g. This in effect means that the respondent cannot ask the Client to pay any increase in wages in respect of anyone being paid more than the Living Wage;h. The outcome of the collective grievance brought by Mr Horan in respect of non-payment of the April 2024 pay award both at first instance and on appeal (albeit there are two appeal outcome letters one upholding the grievance and the other rejecting the grievance) is the same. Reference was made to the outcome letters at B87, B114 and B128. In short, any entitlement to a pay increase was subject to and still in negotiation with the Client;i. There is thus no contractual entitlement to a pay rise between the claimants and the respondent.[16]Whilst I appreciate that from the claimants’ perspective this matter has been outstanding for over a year and that Mr Horan is coming from this from a position of what is fair and consistent in terms of maintaining a pay differential, unfortunately that is not the matter that I have to determine.[17]On the basis of the evidence that I heard and the documents I was referred to, I therefore reached the conclusion that the claimants have not established that there is a contractual entitlement to what they seek. More to the point in terms of what is under consideration in an unauthorised deduction from wages claim, what they seek is not properly payable to them and so there are no deductions arising.[18]I therefore find the claim is not well-founded and is dismissed.[19]I would add an observation that I sincerely hope that this matter is resolved amicably between the parties. I appreciate that it is clearly not desirable to lose pay differentials between manager/supervisions and security guards and, indeed, Mr Horan pointed out, a number of managers/supervisors have left during the course of these negotiations. However, my task is to determine what is before me in terms of what is required to establish a complaint of unauthorised deductions from wages. Page 4 of 5