Mr D Brackenbury v North West Ambulance Service NHS Trust: 2400416/2024
JUDGMENT
[1]The claimant’s complaint of unauthorised deductions from wages contrary to s13 of the Employment Rights Act 1996 succeeds.[2]The respondent has failed to pay the claimant an uplift of pay in respect of his undertaking the duties of a Senior Paramedic Team Leader (SPTL) from 9 April to 23 October 2023.[3]The parties having agreed the sum in issue, the respondent must pay the claimant £6,021.57 subject to any deductions for tax and National Insurance which may be payable.REASONS
[4]The claimant represented himself and the respondent was represented by Ms. J. Connolly of counsel. I took time during the morning to read the witness statements and documents referred to within them.[5]I heard oral evidence from: Daniel Brackenbury, the claimant; Rhonda Stanger, Sector Manager, North Cumbria; Charlotte Binns, HR Manager, Cumbria and Lancashire[6]I was provided with a hearing bundle consisting of 203 pages, and, in addition, the claimant’s contract of employment consisting of 9 pages which was dated 26 July 2021. In addition to the claim form, the respondent’s grounds of resistance, and the Tribunal’s Orders, I considered the documents referred to by the parties.[7]Oral evidence and the parties submissions were heard over the course of the day. There being insufficient time to deliver an oral judgment, the decision was reserved.Findings of Fact
[8]The claimant was employed as a paramedic (Band 6) at the respondent’s Distington Ambulance Station having been employed by the respondent since 9 July 2019. His contract of appointment when appointed to that post (dated 26 July 2021) set out the arrangements for determining pay and conditions of service which stated at clause 6 “Any changes to your contract of employment will only be made by agreement with you individually, or collective agreements negotiated with Trade Unions organisations under NHS Staff Council (or other national negotiating body) or locally under the Trust’s Trade Union Recognition agreements as amended from time to time.”[9]A developmental post which involved undertaking SPTL (Band 7) duties as required was advertised by email dated 18 July 2022. That email made it plain that the posts were B6 development roles which should not be confused with B7 secondment roles. The role was such that the paramedic would continue to work on their current line but would be abstracted regularly to receive training and development and also to provide intermittent cover for the SPTL role. The claimant applied by email dated 29 July 2022.[10]Having been selected, the claimant took up the role for a three months’ period commencing on 9 January 2023, which was subsequently extended.[11]Around April 2023, it became known that some paramedics undertaking development SPTL roles elsewhere in the Trust were being paid at B7 pay rates after three months. This caused concern that the claimant and his colleagues who were undertaking development SPTL roles were being underpaid as they retained their B6 pay rate.[12]Shortly after the claimant had been in the SPTL role for three months, he received an email from Rhonda Stangar dated 20 April 2023 which asked for evidence of when he completed 3 months of development. The claimant did so by email dated the same day and stated he had commenced in the role on 9 January 2023. By this time, the role had been extended to the end of September 2023.[13]By email of 20 April 2023 at 11.42 am, the claimant requested confirmation from Ms. Stangar that he would be on B7 pay from three months into the post (in line with colleagues in Manchester and Liverpool), which for him was 9 April 2023. She responded two minutes later: “Yep after 3 months in post, it is confirmed – if they do it C & M [Cheshire and Merseyside Region] then we all must do it. I can’t give a date I’m afraid. I’ll obviously do it asap but it won’t be April, likely to be May”. Band 7 staff were not eligible for allowances to cover missed meal breaks. Rhonda Stangar advised the claimant not to claim this payment as it did not apply to B7 roles.[14]Section 2.1.1 of the Recruitment and Selection Policy and Procedures deals with “Development Opportunities” and states: “There may be occasions when individuals are offered the opportunity to undertake certain aspects or tasks of a higher job e.g as a nominee to regularly attend a meeting and contribute,,, This type of opportunity is only for specific development activities and not for individuals to undertake a complete role on an unpaid basis.”[15]On taking up the role on 9 January 2023, the claimant was moved onto a vacant SPTL line covering the full rota pattern and undertaking first line managerial responsibility for associated teams, such as managing sickness absences and conducting appraisals, in addition to first on scene and command roles. He was not undertaking his Band 6 duties and undertaking some aspects of the Band 7 role from time to time as envisaged in “development opportunities” section of the Recruitment and Selection Policy quoted above.[16]Sections5.1.1 and5.1.2 of the Recruitment and Selection Policy also deals with “Temporary Appointments” which it defines as being in excess of one month and advises managers to re-advertise the post if it lasts longer than 12 months to afford the opportunity to others of gaining experience in that role. Paragraph 5.1.2 of the policy states that there are opportunities “to carry out a more senior role as a development opportunity, which in some cases may be unpaid”. The Policy also provides that where a more senior role is available as a development opportunity without an increase in pay, they should be advertised locally to ensure that it is clear from the outset that it is unpaid.[17]The claimant continued in the role of SPTL beyond 20 April 2023 on the understanding that he would be paid at the B7 payrate. He was advised not to claim his allowances for meal breaks which he would otherwise have been entitled to as a grade B6 paramedic.[18]On 20 September 2023, Ms. Stanger emailed the claimant to state that as his role was a development position, progression to B7 was not supported.[19]The claimant and his colleagues raised a grievance on 9 October 2023. Management’s case was provided in the bundle. Ms. Stanger was the author of the management statement of case. Having set out that none of the affected staff had concerns about their pay prior to her email of 20 April 2023, at paragraph 3.1 she stated “once the position around Band 7 payment in other areas was raised, investigated, confirmed and then revoked this quite rightly drew inevitable and understandable scrutiny from this group of staff…” “The outcome of discussions between Gene Quinn [Senior Manager] and Rebecca Powell [Human Resources] was that this group of staff should indeed be paid at AFC Band 7 rate…” “The decision to withdraw Band 7 rate and retain at Band 6 was made by Lorraine McConnell (Deputy Director of Organisational Development) ‘as this is a development role will not receive payment [sic]’.”[20]The claimant entered into ACAS Early Conciliation on 13 November 2023 and the EC Certificate was issued on 25 December 2023. The claimant lodged his claim on 23 January 2024. His employment ended on 22 December 2023 in order for him to commence alternative employment. His claim was for unlawful deduction of wages from 9 April 2023 to 23 October 2023. Relevant Law Unlawful deduction from wagesRelevant Law
[21]Section 13 Employment Rights Act 1996 (ERA 1996) provides that an employer shall not make a deduction from wages of a worker employed by them unless the deduction is required or authorised by statute, or by a provision in the worker’s contract, or by the worker’s prior written agreement or consent.[22]Section 13(3) ERA 1996 provides that there is a deduction from wages where the total amount of any wages paid on any occasion by an employer is less than the total amount of the wages properly payable by him to the worker on that occasion.[23]Under section 23, a complaint of unlawful deduction from wages must be made within 3 months of the date of the payment of wages from which the deduction was made or, if there is a series of deductions, within 3 months of the last deduction. Variation of contract[24]This can be by individual agreement between the individual and the employer, either by someone who has actual authority or ostensible authority to enter into contractual agreements.[25]In the context of the NHS, many agreements are reached by collective agreements with the relevant trade unions and management acting on behalf of the employer. Some agreements will have variation clauses which allow for changes which have not been expressly agreed.Discussion and Conclusions
[26]I have carefully considered the facts set out above. The following conclusions were reached on the balance of probabilities having considered the evidence before me and taking into account submissions made by both the claimant on his own behalf and Ms. Connolly on behalf of the respondent.[27]It was accepted by the claimant that he agreed at the beginning of his taking up the SPTL role, described as a development role, that he would do so on his existing B6 pay. However, on 20 April 2023, Ms. Stangar emailed him requesting evidence for when he completed 3 months of development. The claimant confirmed that he had done so on 9 April 2023. By this time, the pay and grading of paramedics undertaking SPTL roles came to the fore and was the subject of discussion between affected paramedics and their management. Some paramedics elsewhere in the Trust were reportedly being paid B7. On seeking clarification from Ms. Stangar that he would be paid on B7 pay rates from 9 April 2023, she confirmed that was the case. I find that she had the authority (actual or ostensible) to offer that pay rate as she had investigated the matter and then confirmed the grade. The claimant gave “consideration” in that he continued in his employment and did not claim for meal break allowances which he was otherwise entitled to as a Band 6 paramedic. What subsequently occurred was that a more senior manager decided that B7 was to be revoked.[28]The evidence was that the claimant had moved onto a vacant SPTL role and was substantially fulfilling the Band 7 duties. (There was some evidence that the claimant was not trained to deliver supplementary clinical skills and did not have access to ordering processes. However, this did not detract from my finding that the claimant substantially fulfilled the SPTL role). He was not being “abstracted” from his Band 6 role as and when required to undertake “certain aspects of the higher role”. The evidence does not support a finding that he was only undertaking specific development activities (section 2.1.1 of the Recruitment and Selection Policy and Procedures). He was undertaking the complete role on an unpaid basis which was in contravention of the intention that individuals were not to undertake a complete role on that basis.[29]I find that Ms Binns in her evidence misquoted section 5.1.2. In her witness statement she said that the section says that development opportunities are unpaid. That is incorrect. The provision states that they “may be unpaid” [emphasis added].[30]In conclusion, I find that the band B7 pay rate was properly payable for the reasons given above. As the parties have agreed the sum unlawfully deducted if such was my finding, I say no more about that calculation. The claimant has suffered an unlawful deduction from wages in the agreed sum of £6,021.57 gross. Tribunal Judge Jane Callan sitting In the Employment Tribunal as an