Mr J Simbo v Secretary of State for Justice: 2307717/2020
JUDGMENT
The complaint to the Employment Tribunal that the employer has made a deduction from wages in contravention of section 13 is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 29th December 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are providedREASONS
[1]This was a remote hearing by video conference call. A face-to-face hearing was not held because it was not practicable. The parties did not object.[2]I confirmed that I have been provided with a number of documents. These were a bundle of 192 pages and an additional transcript of the meeting which took place on 9 December 2020 with the claimant. Both parties confirmed that those were all the relevant documents that are required.[3]I heard evidence from the claimant on his own behalf, and from Graham Barrett, Gov of HMP Wandsworth on behalf of the respondent.Background
[4]The claimant has been employed as a prison officer at HMP Wandsworth since 20th of July 2015. He did various overtime shifts from 1 February 2020 until 2 August 2020, for which he says he has not been paid. The respondent disputes that the sums are payable because the claimant did not have prior permission to undertake the work, and, in any event, states that the claimant has not submitted these claims via the internal systems in order to be paid.[5]The claim form included a claim for an overtime shift on 28 June 2020. The claimant clarified that he was not claiming for this shift and therefore, as set out in the statement, he was owed 124 hours paid at £22 an hour, being £3828.[6]In reaching my decision I considered all the evidence I heard, and I took in to account the documents to which I was referred. I was assisted by helpful submission by both parties. The issues Unlawful deductions(i) The claim is for unlawful deduction of wages pursuant Section 13 of the Employment Rights Act 1996 (ERA). The claim relates to a) 1/02/2020 A shift Bedwatch Hmp Onley @ Coventry University Hospital total of 16 hours b) /O2/2020 A shift Bedwatch Hmp Onley @ Coventry University Hospital total of 16 hours c) 15/02/2020 A shift Bedwatch Hmp Guys Marsh @ Salisbury district hospital total of 16 hours d) 16/02/2020 A shift Constant watch @ Hmp Winchester for Hmp Coldingiey total of 16 e) 15/05/2020 E Shift Constant Watch @ Hmp Leicester total of 7 hours f) 23/05/2020 E Shift Constant watch@ Hmp Leicester total of 7 hours g) 24/05/2020 E Shift Constant watch @ hmp Leicester total of ‘7 hours h) 20/06/2020 A Shift Bedwatch for hmp Leicester total of 14 hours i) 21/06/2020 A Shift Bedwatch for hmp Gartree total of 15 hours j) 3/07/2020 L Shift Bedwatch for hmp Littlehey total of 12 hours k) 5/07/2020 A Shift Bedwatch for hmp Wayland total of 16 hours l) 14/07/2020 A Shift Bedwafch for hmp Wayland total of 16 hours m) 2/08/2020 A Shift Bedwatch for hmp Wayland total of 16 hours(ii) The Tribunal is to determine whether a) the claimant has submitted internal claims for any or all of these amounts and, if so b) has he suffered such unlawful deduction of wages (considering whether the sums are properly payable,) c) and, if so, to determine the amount. The claim is for £3828. Findings of Fact PoliciesFindings of Fact
[7]I was taken to a number of policies starting with a notice to staff 21 August 2014 on the use of payment plus. This set out new mandatory requirements that applied where members of staff undertook activity for payment plus for establishments other than their home establishment. It required that individual members of staff must inform the home establishment people hub, in advance, of their intention, or wish, to undertake activities at another establishment. It specified the details that must be provided.[8]Gov Barrett gave evidence as to the rationale for these instructions and I was referred to a letter to Group Directors of 3 July 2017 from Mr Copple, the Executive Director of Prisons HM Prison and Probation Service. There had been adverse publicity because pictures had appeared in the press showing prison guards sleeping while on duty during bed watch. The Prison Officers Association had made representations that staff were sleeping on duty because they were overworked as a result of excessive hours.[9]As a result, Mr Copple, in his letter to all governors, made it clear that governors must satisfy themselves that the use of additional hours working remained in line with procedure, and staff were not working excessive hours outside policy. All governors were instructed that there must be a local process in place to record and monitor additional hours worked by members of staff at the home establishment, and also to take account of any additional hours worked at another establishment.[10]Gov Barrett explained that, following this instruction he had to protect the safety of both the officers and the general public, and could not have situations where prison officers were working excessive hours. I accept his evidence as to the need for such a protocol and that he was acting in accordance with a central mandate.[11]On 21 June 2018 Governor’s Order 01 of 2018 was issued “additional hours protocol”. This was issued by Mr Addicott,Head of Business Assurance and it was the local guidance that the Governor was required to put in place to ensure staff were not working excessive hours. It specified the additional hours should always be requested at HMP Wandsworth before seeking additional hours externally. Requests for any additional hours must be sent to a central mailbox. The protocol that was attached to this order specified that staff opting to undertake paid work at other establishments could only do so on scheduled rest days, or when working shorter shifts that allowed sufficient rest before commencing the next duty. Permission had to be received from the people hub prior to undertaking any shift. I find that at this point there were 2 requirements before overtime could be carried out. Staff would be authorised to work external hours if they followed the protocol (requiring advanced written permission), and the hours were not deemed excessive.[12]The protocol also addressed payment and provided that approval for payment would be given by either the Head of Business Assurance or the People Hub Manager. Before giving any approval, checks should be undertaken to ensure that permission had been given for the shifts to be worked, that the hours claimed had been worked and the staff member had complied with the protocol.[13]The protocol specified that if the checks identified a failure by any staff member to adhere to this protocol, payment may not be authorised. I find it is clear in June 2018 that payment is conditional on pre compliance, and the employer is not obliged to pay if the individual has not met these conditions.[14]On 16 April 2020 notice was issued to all staff headed “bed watch – confirmation form”. This was to remind all staff to obtain permission from the people hub before committing to an external bed watch. The document contained a bed watch confirmation form which was to be completed.[15]A document was issued on 28 April 2020 “external bed watches – update.” This introduced a new condition. With immediate effect external bed watches outside of the M25 would not be permitted for the foreseeable future to ensure that the prison service was adhering to government guidelines around essential travel and to protect staff by minimising contact to Covid 19.[16]On 17 June 2020 a notice was issued headed “cross site working arrangements – update”. It was said to be applicable to carrying out bed watches for establishments other than HMP Wandsworth. The note set out that staff must ask permission to carry out any external bed watches. A defensible decision log would be required for the establishment for whom they are requesting to work additional hours. This must be supplied to the people hub along with details of the proposed external bed watch. Confirmation reports of any additional hours worked would also be needed. The note set out an explanation of what a defensible decision log needed to include. The note concluded that staff were not to work at any other prison without first asking for permission. They must indicate the prison they wished to work at and would need to gain assurance from the receiving establishment that the governor has completed a defensible decision log.[17]Gov Barrett explained the importance of getting permission from your home establishment before taking work elsewhere. A Governor at one prison cannot see the shift or roster pattern of staff who work at another. They are therefore unable to tell whether a staff member who applies to them to carry out extra hours is safely able to do so and will have had sufficient breaks. It is therefore taken on trust that a staff member who applies to work an additional shift at an establishment that is not their own has got the necessary permission. That is the only feasible way to ensure safe working.[18]Gov Barrett also explained the importance of the defensible log which was introduced once Covid became an issue. As there was a concern to ensure that staff members did not transmit Covid 19 or expose themselves to unnecessary risk from this virus, if a governor required staff to assist and the staff member would then need to travel outside the M25 in order to do so, the governor of the prison asking for help was required to set out what amounts to an appropriate risk assessment. They needed to address mitigation and why it was sufficiently important to have the overtime worked, balanced against the risk of Covid infection. That defensible log had to be produced to the home establishment before permission would be granted by the home establishment for the prison officer to take on the over time.[19]On 9 July 2020 a further additional hours protocol was published. It repeated that staff must ask permission before working at another prison and a defensible log is required. It goes on to say “If the cross site working protocol is breached, payment may not be authorised….the member of staff will need to seek payment from the establishment they have covered the Bedwatch for. HMP Wandsworth will in no way be responsible for covering payment if this policy has been breached.”[20]The claimant confirmed that he was aware of governor’s order 01/2018 and was familiar with it. He also accepted that he was aware of or familiar with the notes of 16 April 2020, 28 April 2020, 19 June 2020 and 9 July 2020. I accepted his evidence and that of Gov Barrett and the documents and find that prior to undertaking any shift at another establishment prior permission was required from the people hub. This was to ensure the health and safety of the officer concerned as well as to protect the general public. From April 2020 additional requirements were put in place for any work outside the M25. All of the claimant’s additional bed watches from this date were outside this area.[21]The claimant said that he never used the bed watch form, nobody ever used a defensible log at Wandsworth, instead they used a confirmation email. However, the claimant said that while he started off emailing, he then made ‘phone calls and got permission verbally. He couldn’t recall who he spoke to or what bed watches he had permission for but was adamant that he had verbal permission for some of the claims.[22]I find that the conditions in which over time could be carried out were clearly set out and understood by the claimant. It required advance permission from the home establishment and, after April 2019 also required the other establishments outside the M25 to provide a defensible log. I also find it is clear that if these conditions are not met, even if the work is then carried out by the member of staff, Wandsworth will not pay them for that work. This had been clearly communicated.[23]On his own admission, the claimant had not followed the protocol with which he was familiar. On no occasion had he made a written request and he had never obtained a defensible log, despite the fact that many of the shifts for which he is claiming arose after April and are outside the M25. Investigation and first disciplinary hearing[24]On 7 August 2020 Mr Addicott was commissioned to carry out an investigation into allegations that the claimant had breached national orders and/or local policy when carrying out external hours at different establishments between January and August 2020.[25]The investigation report included a record of interview conducted with the claimant in which he said he had sought permission for the bed watches but could not recall from whom and had no proof of this. He also confirmed at this point he had not claimed payment for the overtime worked. The investigation report concluded that it was appropriate to move to a disciplinary hearing.[26]On 9 December the claimant attended a disciplinary hearing chaired by Gov Barrett. I was provided with a transcript of that hearing. The claimant was accompanied by a Prison Officers Association representative. It was in this meeting that Gov Barrett made a concession referred to below to treat the preApril overtime as authorised.[27]The transcript indicates that Gov Barrett explained the safety reasons for these restrictions, and he was confident the claimant had been given a written instruction which he understood because the claimant had signed a petition complaining about the process. He concluded that the claimant was choosing to ignore the instructions. The claimant did not think he understood the severity of the written instruction.[28]Gov Barrett asked the claimant if he been paid for these shifts at this point and the claimant said no, he had not. The transcript concludes with Gov Barrett telling the claimant that he had not submitted his claims properly and this needed to be sorted out now.[29]At one point in the meeting Gov Barret made a comment that he was considering whether he was being lawful or not and was taking advice on that. In answer to cross examination questions, he explained that he meant that he was considering whether or not it was lawful not to pay staff for work done, when that had not been done in accordance with the conditions required. He explained that he had been advised that it was lawful. As far as he was concerned, if an overtime shift had not been authorised, it was not carried out on behalf of HMP Wandsworth and there was no entitlement to be paid the work by HMP Wandsworth.[30]The claimant was sent a letter of 10 December setting out the outcome of this meeting. While Gov Barrett concluded that the allegation was proven, he decided not to give any formal award, but to give advice and guidance only. The letter reiterated that the claimant was not carry out additional work without the appropriate permissions. The letter included with information about the right of appeal. The claimant did not submit an appeal.[31]During the disciplinary process Governor Barrett explained that he gave the claimant the benefit of the doubt and took the view that because the people hub had not been as efficient as it could have been, he was prepared to accept that the claimant may have had verbal permission for shifts worked before April 2020. For the shifts after that date, I find that the claimant had not complied with the conditions set down by his employer for undertaking additional work. Within the terms of its policy, the home establishment can therefore legitimately refuse payment for shifts worked without permission The second disciplinary[32]The bundle contains an exchange of emails from 23 December which recalled a meeting between Mr Addicott, Mr Sethi and the claimant to discuss his overtime claims. It was triggered in part because the respondent had received notification that week regarding an employment tribunal hearing. The email confirms that the claimant was asked if he had submitted his claims and the claimant said why would he when he knew they would be rejected? He explained he had reached this conclusion because claims by other officers had been rejected.[33]A second investigation was commissioned by Mr Addicott and an investigation report was prepared on 1 March 2021. This report and the subsequent hearing on the 14 June largely addressed the claim for overtime on 28 June 2019 which the claimant acknowledged was a mistake. Had the claimant submitted a payment request?[34]The disciplinary hearing also considered whether the claimant had made a false statement to an employment tribunal by stating that the employer was refusing to pay him for the work he had done. It was the respondent’s position that the claimant had not made any internal claim and had agreed this in the meeting of 23 December.[35]Gov Barrett was again the chair of the disciplinary hearing, and the transcript of that meeting was within the bundle. This shows that the question of whether or not the claimant had made a claim for payment plus was discussed. The claimant explained that he had been told verbally and in an email from Mr Sethi that Wandsworth would not be responsible for payment. The claimant’s evidence was that he had called the various people hubs at the other establishments. He had been told that they could not pay him as it was always done through the home establishment. It was one of the staff at a people hub who told him he should approach ACAS and try to get his money that way.[36]While the claimant could not find a copy of this email from Mr Sethi, Gov Barrett accepted that he could well have received this. I find that the claimant have been told by HMP Wandsworth that, even if he submitted a claim, they would not pay it. I also find that he has not submitted any claim to HMP Wandsworth.[37]There was a dispute between the parties as to what the process of claiming payment would be where permission had been given or was deemed to have been given. Gov Barrett explained his understanding is that an individual would ask permission to work overtime. If it was not available at the home establishment and they had sufficient rest break, then they will be allowed to take opportunities at other establishments. Once they have been completed this work at the other establishment, they would email again confirming they had done the work for which permission been given, where it was and how long it was for. That would be entered onto the log of work hours and the individual would be able to make a claim for payment for those work hours.[38]It was the claimant’s complaint that Wandsworth did not put his additional hours onto his work log and therefore he could not claim them. Before this tribunal the claimant was saying that he was unable to make a claim because his employer had not taken a necessary pre-step. I find this is not what he said to Gov Barrett during the second disciplinary hearing or his meeting 23 December. The claimant was clear throughout, whatever the processes, he had not actually made any request for payment. I find that he has not made any application to any formal system run by the prison service for payment of these amounts.[39]Gov Barrett also explained that once a request for over time was made the system would be checked again and that the administrator processing the overtime claim would check to ensure that permission had been given, would then check with the other establishment the dates on which the individual worked and how many hours they had worked, and if those are all correct the payment would be authorised. The respondent was unable to say in relation to any of the overtime that the claimant was still claiming to this employment tribunal whether or not the hours were in fact worked as the claimant has recorded them because these checks had not been carried out because no claim has been made.[40]It was clarified that in relation to the pre-April shifts the issue of permission is deemed to have been given, but nonetheless the validity of those claims have not been checked. Relevant law DeductionsRelevant law
[41]The statutory prohibitions on deductions from wages are contained in Part II of the Employment Rights Act 1996 (ERA). The general prohibition on deductions is set out in s.13. A right arises where monies have not been paid which are “properly payable”.T here must be an actual failure to pay and it must relate to money that is due to the individual. 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. …………… . (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 occasionConclusion
[42]In applying the relevant law to my findings of fact I conclude as follows. I have found that the claimant has not made any request for payment for any of the overtime he is claiming. While he says he has not done so because he believes it will be refused, that belief does not release him from the obligation to make a payment claim and have it rejected, if that does occur, in order to bring a claim for unlawful deductions. As the claimant has not made any request internally for payment in an appropriate manner, the question of deductions is premature. The respondent cannot be responsible for a deduction when the amounts are payable only if requested by the claimant and they have not been requested.[43]While the claim does not succeed on these grounds, I have gone on to consider whether the sums would be “properly payable” even if they had been claimed. A sum can only be claimed as a deduction if there is an entitlement to it. I have found that after April 2020 (a concession having been made by the respondent for overtime before this) the claimant has not complied with the conditions attached to working overtime and that these are preconditions. I have found that failure to comply means that even if the work is done, it is not work for which the employer has any obligation to make a payment.[44]I have concluded therefore that the monies the claimant is claiming after April is not properly payable. It was not authorised and therefore there can be no unlawful deduction as there is no right to be paid for this.[45]I would add that I am not finding that the pre-April work is payable, only that the issue of permission is not relevant. There remains a verification process which will occur if the claimant makes a claim to his employer for that money.[46]For these reasons the claims do not succeed.