Mr M Sandford v South Tees Hospitals NHS Foundation Trust: 2500571/2018

EMPLOYMENT TRIBUNALS

Case No 2500571/2018

Between

Mr M SandfordClaimant

South Tees Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Johnson

Mr Searle (instructed by Counsel) for claimant

Ms Dalzell (instructed by Solicitor) for respondent

Date 16 May 2018

JUDGMENT

The claimant’s complaint of unauthorised deduction from wages is well-founded and succeeds. The respondent is ordered to pay to the claimant the sum of £6.90 being wages unlawfully deducted. That sum is to be paid net and the respondent shall be responsible for the payment of any income tax and national insurance contributions thereon.

REASONS

[1]This matter came before me this morning for consideration of the claimant’s complaint that the respondent had made unauthorised deductions from his wages. The claimant was represented by Mr Searle of counsel and the respondent by Ms Dalzell, solicitor. The claimant had prepared a seven page witness statement, containing 27 paragraphs, signed and dated 2 May 2018. The claimant however was not called to give evidence. The respondent did not call any witness evidence. There was a bundle of documents marked C1, comprising an A4 ring binder containing 115 pages of documents.

[2]By claim form presented on 7 March 2018, the claimant brought a single complaint that the respondent had made unauthorised deductions from his wages. The respondent defended the claim. In simple terms, the claimant alleges that he had agreed in writing to the respondent deducting from his monthly salary the sum of £23.00 each month, being the cost of a car park permit, authorising the claimant to park on the respondent’s premises. The claimant alleges that, without his agreement, the monthly sum was increased from £23.00 to £25.30 per month with effect from 1 October 2017. The claimant’s case is that his authorisation for a deduction from his wages was limited to £23.00 per month and not £25.30 per month. Accordingly, he claims £2.30 per month from 1 October 2017 onwards.

[3]The respondent’s case is that the claimant agreed to purchase a car park permit from the respondent and further agreed to the annual cost of that car parking permit being deducted by monthly instalments from his salary.

[4]The sole issue in the case is agreed to be whether or not the claimant’s written consent to the deduction from his wages was limited to the £23.00 per month, or whether he had agreed to a deduction in whatever sum the respondent sought to charge for the annual car park permit.

[5]The claimant is a Clinical Technologist working for the respondent NHS Foundation Trust. The respondent operates a parking scheme for its staff. Car park permits are issued on an annual basis with effect from 1 January each year. Staff are issued with a notice at the end of each year, inviting them to apply for a new car parking permit for the following year.

[6]The respondent’s General Policy on Car Parking for Staff begins at page 46 in the bundle and continues until page 84. At page 50 in Appendix 4 at the eighth bullet point, the policy states:- “Staff who are on South Tees payroll will have their car parking deductions taken from their salary on a monthly basis and must renew two weeks prior to the expiry date of their permit.”

[7]In Appendix 9 on page 59 under the heading “Terms and Conditions of the James Cook University Hospital’s Car Parking Scheme” the following conditions are set out:- 1 I agree to pay the car parking charges as set out by the Trust and to have the payment deducted from my salary or to pay the fee set out for cash payers.

[15]I understand that not complying with the terms and conditions set out in the Car Parking Scheme could result in my centre manager being informed and disciplinary action being taken against me. 8. In Appendix 10 on page 61 under the heading “Cost” it states:-• Full time staff (over 20 hours per week) £23.00 a month. 9. At page 73 in Appendix 12 it states:- “The Agreement will run until 31 December. You will automatically be provided with a new permit on 1 January unless you opt out of the arrangement at this point.” 10. The claimant signed the appropriate form of authority for a 2014 car park permit, on 6 November 2013 (page 55). It is accepted that at the time, the monthly deduction from the claimant’s salary would be £23.00 a month as set out on page 61. 11. On 18 July 2017 the respondent’s Director of Estates issued a Special Briefing, announcing that staff car parking charges would be increased at a standard rate of £2.30 per month with effect from 1 October 2017. The briefing document states, “This decision was shared with the Joint Partnership Committee on 13 July 2017”. 12. The increased charges were implemented from 1 October 2017. At the end of that month, there was deducted from the claimant’s salary the sum of £25.30, rather than the original monthly sum of £23.00. The sum of £25.30 has been deducted each month since them. 13. The claimant’s case is that he gave his consent in writing to a deduction from his wages at the monthly rate of £23.00. The respondent’s case is that the claimant has confirmed in writing his consent to a deduction from his monthly salary of “the car parking charges as set out by the Trust” and that this includes any increased monthly charge. 14. Ms Dalzell for the respondent submitted that the phrase “car parking charges as set out by the Trust” means that the claimant has agreed to pay whatever sum the respondent decides to impose and by signing the original document has agreed to any such sum as increased, being deducted from his monthly wages. The claimant’s case as put by Mr Searle is that the claimant has consented in writing to the deduction of the sum of £23.00 per month and no more. 15. In a spirited discussion with both Mr Searle and Ms Dalzell, it was accepted that the claimant, in his capacity as branch chair and lead rep for the Unite union, actively opposes any increase in car parking charges for the respondent’s employees. At paragraph 20 in his witness statement, the claimant states, “I do not consider that the respondent can unilaterally change the fees for the car parking and deduct this from my salary without my consent.” At paragraph 24 he states, “I am of the view that the terms for the 2017 renewal agreement are clear. They do not provide the respondent with the right to unilaterally vary the fee.” I made it clear to both Mr Searle and Ms Dalzell that the Employment Tribunal is not a forum to be used as a tool or device in a dispute between the trade union and the respondent about the principle of employees being charged for car parking, or the amount of such charges. Neither of those matters falls within the jurisdiction of the Employment Tribunal. It is for the respondent, as the Estate owner, to decide whether to implement car parking charges, who should pay those charges and in what amount. The Employment Tribunal’s jurisdiction is limited by statute. In the claimant’s case, the Tribunal may only decide whether there has been a deduction from the claimant’s wages and if so whether he has previously consented to it in writing.

[16]It is common ground that there has been a deduction from the claimant’s wages. It is common ground that up to 30 September 2017 the claimant had confirmed in writing his consent to a deduction which amounted to £23.00 per month. The claimant’s case is that this consent continued after 1 October 2017, but at the rate of £23.00 per month. The respondent says that the claimant has consented in writing to a deduction at the increased rate of £25.30 per month.

[17]Ms Dalzell for the respondent submitted the phrase “I agree to pay the car parking charges as set out by the Trust” means the claimant has agreed to a deduction in whatever sum the respondent decides to charge employees for parking their cars. Ms Dalzell submitted that the Special Briefing dated 18 July 2017 amounts to sufficient and reasonable notice to those employees affected, that the monthly deduction would increase by £2.30 with effect from 1 October 2017. Mr Searle for the claimant submitted that the claimant had made it immediately clear that he did not agree to pay the increased charge and certainly did not agree to it being deducted from his wages.

[18]Mr Searle referred to a grievance raised by the claimant on 29 November 2017, following the first deduction from his wages on 31 October 2017. That grievance appears at page 89 in the bundle. The claimant states:- “My payslip for 31 October 2017 indicated that £25.30 had been deducted from my pay in respect of 328 South Tees Car Park (staff car parking scheme). My payslip for 30 November 2017 also shows the same amount deducted. The agreed amount for my participation in the staff parking scheme for 2107 had been set at £23.00 per month. The increased parking fee was not required or authorised by legislation, it was not authorised by my contract, nor did I consent to it in writing. It therefore constitutes an unlawful deduction from my wages.” In his desired outcome, the claimant states that he seeks prompt reimbursement of the £4.60 which had been unlawfully deducted and that no further unlawful deductions should be made in the future. At page 104 is a letter dated 21 December 2017 which is the respondent’s response to that informal grievance dated 29 November. In that letter the respondent stated that it had explained its rationale for increasing car parking charges. It states that its position had not changed and reimbursement of the increased fees “would not be financially viable”. The letter states, “The increase in fees does not constitute unlawful deduction from wages.”

[19]It is part of the claimant’s case before me today that the respondent has failed to properly deal with his grievance and is thus in breach of the ACAS Code of Practice and that accordingly, should any sum be awarded to the claimant today, there should be a 25% uplift on that sum to reflect the respondent’s alleged failure to comply with the ACAS Code of Practice.

[20]Neither representative referred me to any authorities which may assist in the interpretation of the relevant statutory provisions. I am conscious of the limitations imposed upon the Employment Tribunal in attempting to determine the “total amount of wages properly payable” under section 13(3) of the Employment Rights Act 1996. I am conscious of the decisions in Agarwal v Cardiff University, Southern Cross Healthcare v Perkins, Weatherilt v Cathay Pacific Airways and Tyne and Wear Transport Executive v Anderson Passenger, concerning the Employment Tribunal’s power of interpretation under Part 1 of the Employment Rights Act 1996. The Tribunal may identify the relevant term applicable in order to determine the sum properly payable and may construe or interpret that relevant term in a deduction from wages claim.

[21]Even where a contract provides for an express power to make a deduction, that deduction will not be lawful if it is in fact a penalty and is not a genuine preestimate of loss. (Cleeve Link v Bryla

[2014] IRLR 86

). The contract must be construed at the time it was entered into on an objective basis. In assessing the question of deterrents and compensation it is relevant to have regard to the differences between the sum to be deducted and that which could be recovered in an action for breach. If the difference is extravagant then this may indicate that it is only explicable as a penalty.

[22]It is not suggested on behalf of the claimant that the imposition of an increased car park charge amounts to a penalty. There is an objection by the claimant (for himself and on behalf of his union members) to the very principle of the respondent imposing car parking charges on its staff and thereafter increasing those charges without the staff’s prior agreement. As I have already mentioned, those are not matters to be decided by the Employment Tribunal. My sole function is to decide whether the deduction of £25.30 per month is one to which the claimant had earlier given his consent in writing.

[23]I consider the relevant phrase to be that on page 59 in the bundle in the term and conditions of the James Cook University Hospital’s Car Parking Scheme. It states:- “I agree to pay the car parking charges as set out by the Trust and to have the payment deducted from my salary or to pay the fee set out for cash payers”. The relevant extract from that phrase is, “as set out by the Trust”. The only place where those charges are “set out” is at Appendix 10 on page 61 which states, “Full time staff (over 20 hours per week) £23.00 a month.” Nowhere in the document does it state that the respondent may vary that figure from time to time, either with or without the consent of the permit holder. Ms Dalzell was unable to give me an explanation as to why no provision was made in the agreement for the car parking fee to be varied from time to time. I do not accept that the announcement in the Special Briefing on 18 July can fall within the definition of “the car parking charges as set out by the Trust”. Coming to that conclusion I adopt the general principle of “contra proferentem” to the effect that any ambiguity in the interpretation of these provisions should operate against the party which drafted the contract or clause. I consider it to be a basic principle of drafting terms such as these, that those who agree to the deduction from their wages should be made fully aware in clear and unambiguous terms that the sum to be deducted may be increased from time to time.

[24]I found that the claimant agreed to a monthly deduction from his wages in the sum of £23.00, but not in the sum of £25.30.

[25]The claimant invites me to find that the deduction was made continually each month with effect from 1 October 2017. I reject that submission. I find that the claimant made it clear that he did not agree to a deduction from his wages at the increased amount for the remainder of his 2017 permit. That would take him up until 31 December 2017. That amounts to three months at £2.30 per month in the total sum of £6.90. I find that the respondent has made an unauthorised deduction from the claimant’s wages in the total sum of £6.90.

[26]The claimant was aware that he would have to renew his permit with effect from 1 January 2018. The claimant has not informed the respondent that he does not wish to renew his permit and has not informed the respondent that he will not renew his permit at the increased rate. The claimant has however continued to use the respondent’s car park and is therefore responsible for paying those fees which the respondent has imposed for its use. Both Mr Searle and Ms Dalzell accepted that the period of three months would be a reasonable period of notice for an employee to decide whether or not to pay the increased parking charge and if so whether to agree to it being deducted from his wages. I find that by 31 December 2017 at the latest, the claimant had been given a reasonable period of time in which to make those decisions. I find that the claimant by continuing to park in the respondent’s car park in the full knowledge of the increased rate and that it continued to deduct it from his wages, had by his conduct confirmed his previously given consent in writing amounting to written consent for the deduction of £25.30 per month.

[27]The respondent is ordered to pay to the claimant the sum of £6.90 in respect of wages unlawfully deducted. That is a net amount and the respondent shall be responsible for the payment of any income tax and national insurance contributions thereon.

[28]I am not satisfied that this is a case where the respondent could properly and fairly be said to have failed to comply with the ACAS Code of Practice. I accept what is said to me on behalf of the respondent to the effect that the respondent had throughout the relevant period attempted to deal with the complaints raised by the claimant both on his own behalf and in his capacity as a trade union representative. Whilst this had taken longer than had been expected, it is clearly a sensitive issue which affects a vast number of employees. EMPLOYMENT JUDGE JOHNSON