Mr D Bisby v BAE Systems (Operations) Ltd: 2410902/2018

EMPLOYMENT TRIBUNALS

Case No 2410902/2018

Between

Mr D BisbyClaimant

BAE Systems (Operations) LtdRespondent

Before

Employment Judge Robinson

Date 10 January 2019

JUDGMENT

The judgment of the Tribunal is that the claim of the claimant for unlawful deduction of wages fails and is consequently dismissed. No further order or judgment need be made.

REASONS

[1]Mr Bisby has brought before me a claim for unlawful deduction of wages against his employer, BAE Systems. He is still employed by them. There is no breach of contract claim. It is not within the jurisdiction of any Employment Tribunal to deal with breach of contract claims when the claimant is still in employment with the respondent, so I have no jurisdiction to deal with that matter. The only issue is the unlawful deduction of wages claims.

[2]The claimant and the respondent have made great efforts to sort this matter out internally. The respondent, however, refuses to pay the claimant what he thinks he is due. Having exhausted those internal procedures Mr Bisby has turned to the Tribunal for help.

[3]I set out below the law applicable to the claim. Section 13 of the Employment Rights Act 1996 establishes that an employer shall not make deductions from the Case No. 2410902/2018 2 wages of a worker, unless 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 the worker has previously signified in writing his agreement or consent to the making of the deduction.

[4]Where the total amount of wages paid on any occasion, whether that is a weekly payment or a monthly payment, is less than the total amount of wages properly payable, and I emphasise that phrase, the deficiency shall be treated as a deduction and the employer will be in contravention of section 13. This is not a case where, for example, an employer has deducted wages to pay for a uniform that has being used or damaged by an employee.

[5]I have to decide what the wage properly payable was. I have established the agreement between the parties by considering all the relevant documents that have been put before me and by considering the conversations that have been noted in the bundle, and also the evidence that I have heard today, challenged during cross examination.

[6]The issue between the parties can be simply put. Mr Bisby claims that he has been underpaid for a considerable period of time, indeed since 2011 since he took up his job as the Build Line Support Engineer. The claimant’s claim is this: the role he says he took has been advertised as a Grade F in 2007, 2010 and 2011. He had therefore, he says, a reasonable expectation, when he was shoehorned into that role without interview, that he would be paid at Grade F. Since 2011 he has only been paid at Grade E. He understood he would get either Grade F initially, or he would receive a salary increase in due course, and that salary increase has failed to materialise.

[7]The relevant facts are these. The claimant has been paid throughout the relevant period as a Grade E employee. Grade F employees are paid more than Grade E employees. The role, the claimant is doing, has been occupied in the past by a subcontractor paid outside the respondent’s wage structure, by an employee who was paid at Grade F, and an employee, Wilf, who was paid at Grade E. What matters, in this claim, is not what was paid previously but what the claimant should be paid under his contract since 2011. The only document that I have seen that places the claimant within any grade is a letter from 2006 (page 561 of the bundle) which places the claimant as a Grade E employee. The letter sets out the claimant’s annual salary.

[8]Both parties agree that there is no other document or similar letter since 2006 that suggests the claimant has in any way been upgraded, or indeed his terms and conditions, generally, have been changed from those set out in that very short letter at page 561.

[9]Other documents in the bundle, such as the claimant's PDRs, show that the claimant has accepted a number of things during his employment in this role. For example, he thought he was on a probationary period but did not know for how long. The essence of the claimant’s claim is, not that he has not been upgraded, but that he has been in the role so long that he should have been upgraded to grade F.

[10]Mr Bisby accepts he commented in 2013 that he knew he was “working towards” Grade F, nor can he say, categorically, that Duncan Smith employed him in 2011 at the outset, as a Grade F employee, or indeed even promised him Grade F in Case No. 2410902/2018 3 the future. The only evidence, upon which the claimant relies, is that the job was advertised as a Grade F role.

[11]The claimant cannot deny the respondent’s response that it will pay the going rate for any job within the factory whatever that may be, looking at the economic reality. The claimant said this to me today: "Duncan [Smith] did not offer me Grade F. If I said that I would be lying on oath”. Mr Bisby’s claim, now, is that he always assumed it would be a Grade F role because it was advertised initially as a Grade F role.

[12]The claimant said to Duncan Smith that he agreed he would stay at Grade E. Just because the claimant can sign off category 2 documents, that does not mean that he is at Grade F. Grade E employees can sign those category 2 documents, but category 1 signatures can only be appended to documents by Grade F employees or executives who are higher than Grade F. The claimant accepted that and he also accepted that he does not signed those category 1 documents.

[13]There is no document like the one at page 561 in 2006 to suggest the claimant had been upgraded at any stage between 2011 and 2018 to Grade F.

[14]The claimant also told me today: “I should have been promoted to Grade F and I wasn’t” and accepted that “[he] was Grade E so I can sign off category 2 signatures”. When cross examining Mr Garner the claimant interrupted an answer and said “I was not appointed as Grade F.”

[15]Mr Bisby now has the support of his managers to upgrade. For example, Paul Green and one of his other managers are very supportive of him in that regard. Mr Bisby put that forward as evidence in his favour. Quite the contrary, it points to the claimant being a grade E employee and infers that his managers know and he knows, that he is a Grade E employee, but one who should now be rewarded for all his hard work as a Grade F employee.

[16]Where does that all take us? Inevitably it leads, I am afraid, to only one conclusion: the claimant has used the internal processes at BAE and now the Tribunal processes to establish he is due for promotion and an upgrade in grade. In effect, a pay rise, for all the efforts and hard work he has put into his job over all the years he has worked at BAE. However, I have to decide, not whether the claimant is deserving of that pay rise but, rather, under the claimant's contract of employment to what pay is the claimant entitled. Put another away, what is the “wage properly payable” to Mr Bisby?. It is clear from all the evidence that the contract between the claimant and the respondent places the claimant as a Grade E employee and always has done. In those circumstances, when the claimant has been paid throughout the relevant period from 2011 to the present a Grade E salary, there can be no unlawful deduction of wages.

[17]Whatever the claimant expected in 2011, it was not that he should be paid at Grade F, but that in the future he may be upgraded. Of course, now, after so many years of performing well in that role, in the knowledge that his managers support him, the claimant believes he has a moral right to be upgraded to Grade F, and I can understand why he thinks that. But that is not the same, and I emphasise this, as having a legal right under his contract of employment to be paid at Grade F. The agreement between the parties is clear. The claimant is a Grade E employee, he has been paid as a Grade E employee. Therefore, he has been paid under section 13 of Case No. 2410902/2018 4 the Employment Rights Act 1996 the wage properly payable to him, and consequently his claim fails and I dismiss is today. _____________________________ Employment Judge Robinson Date 10 January 2019