A Dias v London Borough of Haringey: 3303369/2024
JUDGMENT
The complaint of unauthorised deductions from wages is not well-founded and the Claimant’s claim is dismissed. Approved by:REASONS
[1]The Claimant is employed by the Respondent as a heating, ventilation and air conditioning (HVAC) engineer. The employment is ongoing.[2]Early conciliation started on 18 January 2024 and ended on 29 February 2024.[3]By a claim form presented on 21 March 2024, the Claimant complained that he is owed travel payments by the Respondent.[4]By a response form and Grounds of Resistance dated 24 May 2024, the Respondent resisted the complaint. Its case, in essence, is that the Claimant is not owed those payments.[5]On 18 November 2024, a preliminary hearing took place before Employment Judge Dick. Case Number: 3303369 / 2024 Claims and Issues[6]The remaining claim following the 18 November 2024 preliminary hearing is for the unauthorised deduction from wages.[7]At the preliminary hearing, it was noted that there were two transfers that affected the Claimant under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended) (TUPE).[8]The issues to be determined by the Tribunal in light of the 18 November 2024 hearing are as follows. Terms of contract[9]At the time of the first transfer, was there a term in the Claimant’s contract allowing him to be paid ten hours per week travel time as overtime (Travel Payment)? If so, that term will apply to the contract between the Claimant and the Respondent by virtue of the first and second transfers. Unauthorised deductions[10]If the above term existed, was the Claimant entitled to be paid the Travel Payment without making any claim to the Respondent?[11]If not, did the Claimant make any claims for the Travel Payment?[12]If the answer to paragraphs 10 or 11 above is yes, how many weeks’ wages must the Respondent pay the Claimant, taking account of s 27(1)(a) Employment Rights Act 1996. Other matters[13]At the preliminary hearing, the Claimant accepted that as the Claimant is still employed by the Respondent, the Tribunal does not have jurisdiction to hear a breach of contract claim. The Claimant’s claim for breach of contract was dismissed on withdrawal.[14]In relation to the unauthorised deductions claim, the Respondent accepted that there is no issue as to time limits. The Claimant is still employed by the Respondent. Accordingly, if the Claimant succeeds, the unauthorised deductions are ongoing.Evidence
[15]There is an bundle setting out the relevant materials.[16]The Tribunal was provided with witness statements on behalf of the Claimant, Stuart Fisher and Noel Thompson. The Tribunal heard from them. The Tribunal was also provided with a witness statement on behalf of the Respondent from Anthony Tamattiris and the Tribunal heard from him. Case Number: 3303369 / 2024Law
[17]The right not to suffer an unauthorised deduction is contained in section 13(1) of the Employment Rights Act 1996: “An employer shall not make a deduction of 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”.[18]Section 23 of the Employment Rights Act 1996 gives a worker the right to complain to the Employment Tribunal of an unauthorised deduction of wages.[19]Section 27(1) of the Employment Rights Act sets out the meaning of the term “wages”. Wages mean any sums payable to a worker in connection with his employment, including (according to section 27(1)(a) of the Employment Rights Act 1996) any fee, bonus, commission, holiday pay or other emolument referable to their employment, whether payable under their contract or otherwise. Relevant findings of fact[20]The Claimant remains employed by the Respondent as a HVAC engineer.[21]The Claimant started his employment with a predecessor to the Respondent, Amey Limited (Amey). Since then the Claimant’s employment has been transferred twice under TUPE:21.1 First, from Amey to Homes for Haringey (HfH) on 1 April 2020; and21.2 Second, from HfH to the Respondent on 1 June 2022.[22]In essence, the Claimant’s case is that he had an initial agreement with Amey to be paid travel time of 10 hours per week (two hours per day), paid as overtime. However, the Claimant has said in evidence that he only claimed five hours per week at one and a half times his hourly rate, so the equivalent of seven hours at his standard hourly rate.[23]It has not been possible to find a copy of the Claimant’s employment contract.[24]As a factual finding, the Tribunal finds that there was an agreement with Amey as to the Travel Payment. This agreement occurred prior to the Claimant starting with Amey in early 2018. It has been described as a local agreement. It was agreed by Mr Fisher and Mr Thompson as the Claimant’s then managers. It was signed off by Tracy Bean in HR at Amey. It is agreed Case Number: 3303369 / 2024 that it did not appear in the Claimant’s written employment contract and there is no other written record of it.[25]The only clear written contemporaneous records of its existence are that the timesheets that contained claims for the Travel Payment were signed off by the Claimant’s managers. There is evidence that the Travel Payment was then paid to the Claimant.[26]The manner in which the Travel Payment worked is that the Claimant would put the reference “F.GAS” onto his timesheet, but without any cost code accompanying it. Once the timesheet was signed off, the Travel Payment would be made as part the Claimant’s overtime.[27]The Claimant suffered illness and was absent for periods following the TUPE transfer to HfH. During the period 1 April 2020 to 9 October 2023, the Claimant underwent five eye operations and also suffered a heart attack, as well as a fractured foot.[28]The Travel Payment was not included in the Employment Liability Information (ELI) provided by Amey to HfH as part of the TUPE transfer. It was also not part of the ELI from HfH to the Respondent.[29]There were, however, three employees in relation to which similar travel payments were recorded in the ELI.[30]The Claimant neither claimed for nor received any standalone Travel Payment after 1 April 2020 (i.e., after the TUPE transfer to HfH), nor subsequently following the TUPE transfer to the Respondent. He states that he raised the matter of the Travel Payment after he joined HfH, and was assured that the matter would be dealt with. The Claimant says that he did not make any claims for the Travel Payment because he had been off ill and felt guilty about making additional claims for payment at that point.[31]Mr Thompson states that the Claimant did approach him informally regarding the Travel Payment, and that Mr Thompson reassured the Claimant in that regard and told the Claimant to focus on his health and recovery.[32]The Claimant raised a complaint on 13 October 2022 about the Travel Payment, although he stated the agreement was for him to be paid travel time of 10 hours per week, rather than the seven hours that he has referred to in evidence as claiming. After initial consideration, the complaint was dealt with by Mr Tamattiris, who conducted an investigation into the Claimant’s complaint.[33]The Claimant provided an email from Mr Fisher dated 5 December 2022. Mr Fisher was a technical solutions manager at Amey. It was copied to Mr Thompson, who was the Claimant’s line manager at Amey reporting into Mr Fisher.[34]This email said, “When you were employed by Amey we processed the agreed travel expenditure via the over-time function”. It went on, “This arrangement should have continued with HfH and now Haringey as part of your terms and conditions of employment”. Mr Fisher further said that “As Case Number: 3303369 / 2024 part of the ELI data and 1 -2-1’s initially with HfH this information would have been shared”.[35]It is the case that it was not part of the ELI data and the Tribunal has not heard any direct evidence that it was included in any 1-2-1 discussion that related to the TUPE transfers between Amey and HfH and HfH and the Respondent.[36]On 19 May 2023, Mr Fisher wrote an email to Tracy Bean at Amey. She was asked “Could you please respond back to [the Claimant] confirming that any such local agreements were at the discretion of the Account Manager (myself) and that Amey [HR] can only verify that at the time, as detailed in the message below [of the 05./12/2022], that this local arrangement was managed by the Account Manager”.[37]On 5 June 2023, Ms Bean responded to the Claimant (copying in Mr Fisher). She said “I understand the arrangements to manage your travel expenditure whilst working for Amey were paid via the over-time function at the Account managers discretion”. She went on, “This was a local agreement and not contractual, therefore it was not eligible to transfer under the TUPE legislation, however I understand the agreement has continued to be honoured locally since the transfer to Amey to Homes for Haringey”. Ms Bean then said, “I am afraid this is something you will need to pick up with your current employer if they are no longer honouring the local agreement”.[38]In response the Claimant said that he had received travel payments for the last 20 years at other organisations. He said that his Amey contract could not be amended and Mr Fisher agreed to pay the Claimant the travel time. After referring to his health problems, the Claimant then said “Haringey Council has agreed to honour my travel, on the condition that you inform them to go by Stuart Fisher’s letter sent to Stuart to Haringey HR for my…travel agreement…..That’s all they have been waiting for from you”. The letter from Mr Fisher referred to is the 5 December 2022 email.[39]On 27 June 2023, Ms Bean then sent an email to the Claimant stating “Please pass this information to the appropriate contact at Haringey Council”. She stated, “Following on from Stuart Fishers letter in the attached email trail, I confirm that at the point of TUPE transfer from Amey to Homes for Haringey the travel agreement in place via the overtime function with Amey transferred across to Homes for Haringey and should now duly transfer again to Haringey”. This contradicts what she said on 5 June 2023.[40]I did not hear from Ms Bean. Mr Tamattiris has stated that he attempted to contact Ms Bean, but has not received a response.[41]On 31 July 2023, Mr Tamattiris wrote to the Claimant to reject his complaint. Discussions and conclusions[42]The definition of wages is broad. However, there must be a legal entitlement to the payment. This is because in accordance with section 27(1)(a) of the Employment Rights Act 1996, the payment must be “payable under [the Case Number: 3303369 / 2024 worker’s] contract or otherwise”. As a general rule, discretionary payments do not fall within the definition of wages.[43]As the issues above state it, the first question is about the contract. In particular, whether the Travel Payment formed part of the Claimant’s contract with Amey that then survived two TUPE transfers and, as a result, binds the Respondent.[44]According to the Claimant, the Travel Payment is a contractual entitlement that was transferred from Amey to HfH, and then from HfH to the Respondent. The Respondent disagrees.[45]As stated above, there was an agreement as to the Travel Payment and this occurred prior to the Claimant starting with Amey in early 2018. It has been described as a local agreement. Some support for this is in the Claimant’s timesheets. These contained claims for the Travel Payment and were signed off by the Claimant’s managers. There is evidence then that the Travel Payment following each claim was paid to the Claimant as part of payments relating to overtime for a two year period.[46]However, there is no explicit written evidence of the agreement as the Travel Payment, whether in the Claimant’s written contract of employment or otherwise. The timesheets through which it was claimed are not clear either. They do not specifically state that sums are being claimed for and paid are for the Travel Payment. The Claimant would put the reference “F.GAS” onto his timesheet, but without any cost code accompanying it. Any payment would be part of the Claimant’s overtime, rather than saying that they were for travel.[47]There is ambiguity as to how much was to be paid. The Claimant’s case is that he had an initial agreement with Amey to be paid travel time of 10 hours per week (two hours per day), paid as overtime. However, the Claimant has said in evidence that he only claimed five hours per week at one and a half times his hourly rate, so the equivalent of seven hours at his standard hourly rate.[48]It is the case that Mr Fisher regarded the Travel Payment as discretionary and not something that could be part of the Claimant’s formal written contract. He also cannot recall the precise terms of the agreement.[49]Significantly, the Travel Payment was not included in the Employment Liability Information, or ELI, provided by Amey to HfH as part of the TUPE transfer process. It was also not part of the TUPE transfer documentation from HfH to the Respondent. This is notwithstanding that there were three other employees in relation to which similar travel payments were recorded in the ELI. There is no evidence that the Travel Payment was raised at this time or in similar discussions.[50]Ms Bean’s emails of 5 June and 27 June 2023 about the Travel Payment (which were some time after any agreement was made) contradict each other. It is difficult to know, without having heard from her, as to what prompted her to change her mind. It is, however, of note that her email of 5 June 2023 is consistent with Mr Fisher’s view that the Travel Payment was Case Number: 3303369 / 2024 discretionary and is also consistent with the Travel Payment not being included in the ELI. As such, as compared with the 27 June 2023 email, the Tribunal prefers the 5 June 2023 email as reflecting the reality.[51]Also difficult for the Claimant’s case is that the Claimant neither claimed for nor received any standalone Travel Payment after 1 April 2020 (i.e., after the TUPE transfer to HfH), nor subsequently following the TUPE transfer to the Respondent. He states that he raised the matter of the Travel Payment after he joined HfH, and was assured that the matter would be dealt with. I appreciate the Claimant’s explanations as to why the claims were not made. However, the lack of claims adds to the uncertainty around any contract if one existed. This is particularly as, in circumstances where the Claimant says he was entitled to the Travel Payment, he did not take it up because he felt guilty about it.[52]Having had regard to these facts, and the law around the formation of contracts, I find that these considerable areas of uncertainty mean that the agreement in relation to the Travel Payment fell short of being a binding contract. The Claimant had an agreement with Mr Fisher and others at Amey, but this was a “local agreement” that resulted in discretionary payments being made with respect to travel. It did not, in the Tribunal’s view, become binding on Amey, or subsequently to HfH or to the Respondent.[53]In light of the above, the Tribunal finds that the Claimant did not have a legal entitlement to the Travel Payment and the Claimant’s claim is dismissed. Approved by: