Mr S Henshall v R W Hill Piling Ltd: 3200604/2019
JUDGMENT
[1]The Respondent made an unlawful deduction of £883.30 (gross) from the Claimant’s wages on 15th March 2019, contrary to s13 Employment Rights Act 1996.[2]This sum is therefore payable by the Respondent to the Claimant (subject to deduction of any tax and NICs the Respondent is legally required to make).REASONS
[1]The Claimant’s claim for an unlawful deduction of wages from his final pay (of £883.30 gross) was presented on 14th March 2019. This was the only claim in the claim form. It was made up of 5 days wages which the Respondent had paid to the Claimant to attend an SMSTS training course in June 2018, which it now sought to recoup under a term in the contract because the Claimant had later resigned. The Claimant agreed that the training course fees for the SMSTS course were recoverable under the term in the contract but disputed that the wages were also recoverable. In the schedule of loss there was also a reference to unpaid holiday pay which had not been contained in the claim form but the parties had in any event resolved this by the time of the hearing. There was also reference in the correspondence to a shortfall in pay of 2 hours on 7th June 2018 but Mrs Henshall accepted that this had not been contained in the claim form and recognised that this claim was out of time in any event. The parties therefore agreed that the claim only proceeded as regards the £ 883.30 (gross) deduction.[2]I identified with the parties that the issue was the effect of clause 17 of the Claimant’s contract of employment (pages 5-6), the Claimant saying it did not cover the wages as well as the training course fees and the Respondent saying it did. I explained to the parties that as this was not a discrimination claim or a constructive dismissal claim, whether or not the Claimant felt it was unfair or unreasonable to recover the wages this way and whether the Respondent felt justified in doing so because of the circumstances of the booking of the course, was not relevant. It was also not relevant whether the Respondent felt it had received any value from the Claimant attending the course in the light of his later resignation. It was also not relevant that the Respondent had agreed that the Claimant give shorter notice than he was required to under his contract, when he resigned.[3]I heard oral evidence from the Claimant and from Ms Moore. The Claimant provided a bundle as did the Respondent. There were witness statements from the Claimant and from Ms Moore. The parties each confirmed that they had had sufficient time to digest the small number of additional documents exchanged shortly before the hearing started.Findings of fact
[4]I find that the Claimant attended an SMSTS training course over 5 days in June 2018. The Respondent’s policy is that it books the training courses it thinks necessary for its employees. However in this instance the Claimant booked it himself. The Respondent nonetheless agreed to pay for the course fees and also paid the Claimant his normal wages for 5 days attendance at the course, which took place over three weekends. This was felt to be a goodwill gesture at the time (page 54 paras 5-6) because it was not training the Respondent had identified and booked for the Claimant and related to a qualification which the Respondent had not identified the Respondent needed him to have, though there might be some possibility in the future of using it. I find that the Respondent paid wages for attendance at a course if it booked an employee onto a course during a weekend.[5]The Claimant resigned in February 2019 as he had found a new job which would use the SMSTS qualification. His employment terminated on 8th March 2019 and his final pay was due to be paid on 15th March 2019 (page 8). The Respondent notified him that it would be making a deduction for the SMSTS course of £1287.30 which comprised the course training fees and the wages.[6]I find that the Respondent was disappointed that it had paid for the course, feeling that the Claimant had arranged it for his own benefit and was now leaving (page 55 para 13-14). Based on Ms Moore’s oral evidence I find that this was the first time in the 11 years she had worked there that the Respondent had also sought to recover wages and not just course training fees under this clause (or its predecessor clause).[7]Clause 17 of the Claimant’s contract of employment (page 5-6) contained the clause the Respondent relied on to make the deduction. I find that ACAS were involved in the introduction of new contracts in 2016 (page 54, paras 7-8). Whilst ACAS advise on good employment practice, they do not advise or decide on the construction and legal meaning of terms in contracts and the fact that they made no comment on this particular clause at the time (page 87) does not mean that it was legally effective as regards the later deduction of wages paid during training.[8]I find that clause 17 needs to be considered in its totality. There is no definition of ‘costs’ and it does not explicitly say that this can include wages for attending the training course. I find that the reference to 100% of the ‘costs’ being recoverable in the previous 12 months in the middle part of the clause needs to be read in conjunction with the first and final sentences which say that the costs are ‘chargeable’ to the employee and that the Respondent can ‘charge’ the costs to the employee. I find that the words ‘chargeable’ and ‘charge’ implicitly mean external charges which the Respondent has incurred. Taken in the round therefore I find that the clause does not expressly or implicitly cover the employee’s wages for attending the course. Alternatively, it was ambiguous as to what exactly could be recovered.[9]The Claimant said he raised a grievance about the deduction on 11th March 2019 (page 47,19). I find that this email did not raise a grievance even implicitly because it expressly says (final para) that the outcomes are either the parties reaching agreement or the Claimant starting early conciliation or proceeding with a tribunal claim. I therefore find that the Claimant did not raise a grievance and that the Respondent was therefore not in breach of the ACAS Code of Practice in failing to respond to one.Relevant law
[10]s13 Employment Rights Act 1996 provides that an employer can make a deduction from an employee’s wages if it has the employee’s agreement to do so in their contract of employment. If an employer wants to rely on a clause allowing deductions it should be clearly drafted.[11]There is a rule of contract law called the contra proferentem rule. This says that where a party to a contract wants to rely on a term which is ambiguous and which allows that party to escape its obligations under the contract (in this case to pay the wages), the dispute is to be resolved against the party wanting to rely on the term.[12]Under s207A Trade Union and Labour Relations (Consolidation) Act 1992 the Tribunal can increase an award by up to 25% in a wages claim (Schedule A2) if the employer has unreasonably not followed the ACAS Code of Practice.[13]Taking the above findings of fact into account, clause 17 did not authorise the deduction of the Claimant’s wages for attending the SMSTS course in June 2018, from his final pay on 15th March 2019 because the wording of the clause did not clearly provide for such a deduction, only for external costs the Respondent had incurred.[14]Alternatively, the clause was ambiguous and is therefore to be construed as against the Respondent.[15]The sum of £883.30 (gross) is therefore payable to the Claimant, subject to any deductions for tax and NICs the Respondent is legally obliged to make.[16]Taking the above findings of fact into account, I make no uplift to that amount to reflect unreasonable non-compliance with the ACAS Code of Practice by the Respondent.