Mr A G D Da Corte v Churchill Contract Services Ltd: 3200682/2024
EMPLOYMENT TRIBUNALS
Case No 3200682/2024
Between
Mr A G D Da CorteClaimantChurchill Contract Services LtdRespondent
Before
Employment Judge C LewisMr J Dryer for claimantMr R Scuplak for respondentDate 13 December 2024
REASONS
[1]By a claim form presented on 19 March 2024 following a period of ACAS early conciliation from 9 January 2024 to 20 February 2024 the Claimant brought claims for unlawful deductions from wages failure to provide a written contract and unfair dismissal. The unfair dismissal claim was withdrawn on the 25 June 2024 and a dismissal judgment has been issued in respect of that claim.[2]The claims before me were for unlawful deductions from wages contrary to section 13 of the Employment Rights Act 1996 and a failure to provide a written statement of employment particulars contrary to section 1 of the Employment Rights Act 1996.[3]At the hearing on 12 September 2024 I heard evidence from the Claimant, and from Lee Cullum and Marlen Holding for the Respondent. There was not enough time to hear submission on 12 September and the hearing was adjourned to 13 December and case management orders were made for the parties to exchange their submissions and agree a bundle of authorities.[4]On 29 October 2024 the Claimant’s union received a copy of his contract from Atalian Servest and at the resumed hearing it was confirmed that this document [C1] was signed by both him and Ms Holding on 11 June 2020. The contract document as also attached to Mr Scuplak’s written submissions [at pages 7-8].[5]I heard the parties’ submissions on the 13 December 2024. The representatives had exchanged their written submissions and had produced an agreed bundle of authorities containing the following cases; Autoclenz Limited v Belcher [2011] UKSC 41 , Devonald v Rosser & Sons [1906] 2 KB 728, Johnson v Bloomsbury Health Authority [1992] QB 333, 20:20 London Ltd v Riley [2012] EWHC 1912 relied on by the Claimant and Schwartz v Barclays Bank Pls [1995] Lexis Citation 2066 relied on by the Respondent.[6]Based on the evidence before me and the applicable law, having heard the partis submissions I reached the following decision which was delivered orally on 13 December 2024.
Findings of fact
[7]I have made the following findings of fact as far as they are relevant and necessary to decide the issues.[8]The Claimant was employed by Atalian Servest from the 11th of June 2020 having been interviewed by Marlen Holding who conducted the interview in Spanish. At that time the Claimant was initially offered a six-month contract which was later extended. The interview took place at a venue away from the Respondent’s then offices and the Respondent did not have access to photocopying facilities. The Claimant signed the contract on that day and was offered the opportunity to take a copy, by taking a picture of it with his phone. The Claimant was employed to work as a cleaner at Wapping Police station Wapping Boat Yard.[9]On the 16th of April 2021 the Claimant signed the document which is at page 35 of the bundle, the Vetting Clearance Letter. The Claimant thought that Ms Holding was present when this took place but Mr. Lee Cullum was clear that it was his writing on the document and that he had provided the document to the Claimant. I have accepted Mr. Cullum’s evidenced that it was he who provided the Claimant with this document. Mr Cullum told me that there was no pressure on the Claimant to sign the document there and then and the Claimant could have asked for it to be translated before signing it if he had wanted. I have accepted Mr Cullum's evidence about this and also accepted Mr Cullum's evidence that he believed that the Claimant understood the document, he also told me that he did not think the Claimant would have signed it otherwise.[10]The Claimant does not dispute that it is his signature on the document. This document is important in this case because it expressly provides for the circumstances where the Claimant or any other employee working on the Metropolitan Police contract has to apply for vetting clearance. The document states that if the clearance is removed and pending any appeal then the employee will be on a period of unpaid suspension.[11]The Claimant’s employment transferred to the Respondent under the TUPE Regulations 2006 on 30 April 2023.[12]On 11 June 2023 the Metropolitan Police notified the Claimant that his recent vetting application to renew his clearance had been refused and he was given 21 days to appeal. This meant that the Claimant no longer had clearance from the Metropolitan Police to work at their site. The Claimant was suspended without pay pending the outcome of any appeal. The Respondent relied on the terms of the Vetting Clearance Letter set out above.[13]On 3 October 2023 the Claimant was advised his vetting clearance appeal to the Metropolitan Police had been successful. The Claimant returned to work on 11 October 2023.[14]I also note for completeness that it was not disputed that the time taken for the appeal was outside of the Respondent’s control and entirely up to the Metropolitan Police.[15]The claim for unlawful deductions is in respect of the period of time when the Claimant was suspended following a decision to refuse his vetting application and pending an appeal against the removal of his vetting clearance by the Metropolitan Police. The Respondent relies on the document at page 35 as authorising the non-payment of wages to the Claimant during this period.
Relevant law
[16]The relevant provision of the Employment Rights Act is section 13, which provides; 13(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.[17]The Respondent relies on s13(1)(a) and (b), namely that the deduction is required or authorised to be made by a relevant provision of the worker’s contract, and that the worker has previously signified in writing his agreement or consent to the making of the deduction. Submissions[18]The Claimant accepted that he signed the document at page 35, however he says he did not understand the document and it was not translated to him. It was also argued on behalf of the Claimant that the authorisation was void because it amounted to a restraint of trade, and that the written agreement was overridden by an implied term of the contract which could be implied from the conduct of the parties in a number of ways.[19]I was referred in the bundle of authorities to two cases in particular: firstly, the case of Devonald a case from 1906 in respect of an implied term for payment to a worker or employee who remained available to work, however in that case it was acknowledged that where there was an express term the implication was that that term would be interpreted narrowly.[20]Having carefully considered the evidence and submissions I am satisfied that I am bound by the common law principle and clear authority to the effect that an implied term cannot override a clear express term. There is clear authority for that proposition in the case of Johnson v Unisys [2001], ICR 480 a decision of the House of Lords. I am also satisfied for the same reason that the narrow interpretation of an express term does not mean that I can ignore or disapply such a term of the agreement between the parties.[21]I find I am satisfied that the document of page 35 of the bundle covers the precise circumstances in which the relevant deductions were made. Alternative submission – restraint of trade[22]The Claimant submitted that the term in the Vetting Clearance document, or the conduct of the Respondent, amounted to a restraint of trade because the expectation was that the Claimant would be taken back on the contract if his appeal was successful, which meant that he was still bound by the terms of his contract with the Respondent and not able to look for work elsewhere.[23]I do not find that the contents of the Vetting Clearance document [page 35] amounts to a restraint of trade. It provides for suspension without pay but makes no reference to preventing the Claimant from looking for work elsewhere. I am satisfied that the Claimant was free to look for work elsewhere during his period of suspension without being in contravention of his contract.[24]Mr. Scuplak submitted that it was normal in the industry for workers on contracts like the Claimants to have more than one job.[25]I took into account that at the relevant time the Claimant had asked for a copy of his contract and was still waiting to see his contract. However, I find that the contract that he was subsequently provided with was a copy of the one provided to him at the start of his employment, [set out below]. The contract specifically envisages that the employee might have another job as well as the job with the Respondent. At Section 3 of the contract “employee declaration” the employee is asked the question “this is my only job” given the option to tick yes or no; the Claimant has filled in the answer “No”. The next question or box is: “I have another job or pension”, the Claimant ticked the box to answer “yes”.[26]In any event, I do not find that the conduct of the parties indicated that the Claimant was prevented from either leaving his job with the Respondent or looking for a job elsewhere if he so chose, or that he would face any penalty for doing so. I do not find that there was a restraint of trade. Is the contract voidable?[27]I turn now to the Claimant’s submission that the document signed by the Claimant was not valid because he did not understand it and therefore cannot be relied on by the Respondent.[28]The Respondent referred me to the case of Schwartz v Barclays Bank in which, he submitted, the Court of Appeal held that the argument relied on by the Claimant was inimicable to the common law. Mr Dryer on behalf of the Claimant has valiantly sought to distinguish the case of Schwartz on the basis that it applied only to a commercial situation and to take into account the circumstances of the employment relationship and the inequality of power in that relationship. I am satisfied that I am bound by the decision in Schwartz; the Lord Justices in Schwartz considered situations of inequalities in bargaining power and had those in mind specifically when coming to their decision that it is not open to somebody to disavow a signed agreement later on the basis that it was not translated and they did not understand it due to lack of understanding of English.[29]I find that there is no basis to set aside or avoid the agreement signed by the Claimant 16 April 2021. I am satisfied that the agreement meets the requirements of section 13 (1) (b) of the Employment Rights Act 1996.[30]The claim for unlawful deductions from wages is not well founded and is dismissed. Failure to provide written particulars of employment.[31]At the time the Claimant’s employment commenced the right under section 1 of the Employment Rights Act was for a statement of initial employment particulars to be provided within two months of the commencement of the employment.[32]The Claimant requested a copy of his contract from the Respondent on 22 June 2023. The Respondent was not able to provide him with a copy because it had not received a copy from the transferor, Atalian Servest.[33]I am satisfied that the correct question for me to address is whether the Claimant was provided with the written particulars of his employment at the commencement of his employment or within two months of the start of his employment. The Claimant accepted in evidence that he was given the contract document (set out above) to sign on the 11th of June 2020. He did not dispute Ms Holding’s evidence that it was explained that the Respondent did not have photocopying facilities available at the venue where the interviews had been held, nor did he dispute that it was suggested that he take a photograph of the contract with his phone.[34]The Respondent accepted that the Claimant was not given a hard copy of the document to take away with him. I have accepted Ms Holding’s evidence that the Claimant was offered the opportunity to take a photograph of the contract document with his phone.[35]I am satisfied that a photograph of a document stored on someone's phone is in effect an electronic copy of that document. I am satisfied that offering that opportunity to the Claimant is sufficient to satisfy the requirement.[36]The Claimant was also provided with a statement of changes to his terms of contract in a document dated the 13th of March 2023 via WhatsApp. I was there for WhatsApp and he was sent a letter on the 27th of April 2023 pages 36-37 of the bundle notifying him of the transfer of undertakings and the identity of his new employer the transferee and any measures affecting him[37]I find that the Claimant’s claims are not well founded and they are dismissed.
Relevant law
[1]The claim for unfair dismissal is dismissed following withdrawal by the Claimant on 25 June 2024.[2]The claim for unlawful deductions from wages is not well-founded and is dismissed.[3]The claim for failure to provide written employment particulars is not well-founded and is dismissed.