Employment Judge WyethIn person for claimantMr J Dubb (instructed by Solicitor) for respondentDate 25 February 2025
JUDGMENT
[1]The claimant’s claim of unlawful deduction of wages is not well-founded and is dismissed. Approved by:
REASONS
[1]By a claim form dated 30 May 2024 the claimant brings one complaint of unlawful deduction of wages, contrary to s13 Employment Rights Act 1996 (“ERA 1996”).[2]In accordance with the particulars of claim attached to the claim form, the claimant was seeking to recover the sum of £1000 which included anticipated deductions post issuing his ET1 (this being the full amount the respondent had indicated it would recover by way of regular weekly deductions of £30 in correspondence sent to the claimant). Both parties confirmed that the sum of £1000 had been deducted from the claimant’s salary by the date of this hearing today. Accordingly, the respondent agreed at the outset that the claimant’s claim could be treated as a claim for deductions totalling £1000 from the claimant’s weekly pay even though some of those deductions post-dated the claim form.[3]The respondent defended the claim. It says that the deductions were authorised, being repair costs in respect of damage to a vehicle for which the respondent says the claimant was responsible. Evidence and procedure[4]I had before me a bundle of documents consisting of 72 pages. It was agreed up to page 68. There was a dispute at the outset of the hearing as to whether the documents from 68 to 72 should be included in the bundle. After hearing representations from both sides about the admissibility of this evidence, the claimant accepted that pages 71 and 72 were a repeat of the document that already existed in the bundle page 43. The three remaining pages (68 to 70) were an email from the repair garage along with two photographs, which the claimant indicated that he wanted to refer to himself. Consequently, after some discussion the claimant agreed that those documents should be included in the bundle.[5]I heard evidence from the claimant first and then evidence for the respondent from Mr Sturgess, the General Manager at the claimant’s depot, and Mr Sindwani, Transport Compliance Manager at the London depot.[6]After hearing evidence, the parties then made oral submissions. I was not referred to any specific authorities or case law by either party (despite the respondent being legally represented). Be that as it may, I am familiar with the relevant case law and for the purposes of these reasons I have provided a short summary of the law below.
The Issues
[7]In essence there was only really one issue to be determined in this case, namely: was the total amount of the deductions made by the respondent authorised under the terms of the claimant’s contract of employment? The Facts[8]The claimant accepts that he had an accident whilst driving the respondent’s vehicle on 25 March 2024 by reversing in to a bollard. As a consequence he caused damage to the near side front step box and to the bumper and the surrounding area. Although the claimant says it was simply scratches to the bumper, from the photographs provided in evidence before me the damage was more than cosmetic both to the bumper and to the step box area. It was in fact significant damage to the body work Including to the corner bumper. According to Mr Sindwani’s evidence, which I accept, although the vehicle remained roadworthy, this was a load bearing area and the damage caused by the claimant was a safety concern. Furthermore, the claimant volunteered in evidence that it was “50-50“ that he had caused the damage that was identified to the near side front fog light once the vehicle was stripped for repair as a consequence of the accident.[9]From the evidence before me, in particular the photographs and email from the accident repairers, I am satisfied on the balance of probabilities that the damage to the fog light was caused as a consequence of the accident on 25 March 2024 for which the claimant was responsible. I accept the respondent’s evidence that no one else used the vehicle after the claimant went on holiday three days after the incident.[10]I also accept the respondent’s evidence that the damage was repaired. There is an itemised invoice dated 15 April 2024 for a total amount of £1,842.43 including VAT for the cost of the repairs. I accept from the evidence that these costs reflect the damage caused by the claimant to the vehicle and nothing else. The fact that the bumper already had a dent in it prior to the claimant’s accident does not detract from the fact that the claimant caused damage to the bumper that the respondent assessed as having to be repaired. It may well be that the respondent took the view that the earlier dent in the bumper was not sufficient to warrant the cost of a repair previously, but following the accident on 25 March 2024 there was damage to the bumper caused by the claimant that was sufficiently serious to need repairing. Even though the bumper at the time of the accident was not undamaged, this was incidental to the fact that the bumper needed replacing once the claimant had caused further significant damage to it.[11]In accordance with the claimant's contract of employment, which he signed on 21 July 2020, on page two there is a term that states: “For the purposes of the Employment Rights Act 1996, the Company reserves the right at any time during, or in the event of termination, to deduct from your wages any overpayment made and/or monies owed to the Company by you, including but not limited to any excess holiday, outstanding loans, advances, fines, the cost of repairing any damage or loss to the Company's property, caused by you and the cost of Company property should you fail to return it to the Company at its request. You consent to the Company deducting these sums from your wages. Such sums shall also be recoverable as a debt by the Company, together with all costs (including legal costs) incurred by the Company in recovering the sums owed.”[12]It would seem that the word “employment” has been omitted after the word “during” but on any sensible objective reading the omission of that word does not make the clause ambiguous and it is clear from the structure of the clause that this was intended to apply to employees both during employment and in the event their employment was being terminated.[13]On 15 April 2024 the claimant received a letter from the respondent’s operations manager at the Greenford depot informing him that because of the damage caused to the vehicle as a consequence of the claimant’s negligence, the respondent would start to deduct £30 each week from his salary up to the amount of the insurance excess totalling £1,000 to cover the cost of the repairs. The letter referred to the specific term in the claimant’s contract (as set out above) that the respondent was relying on for the purposes of making this deduction.[14]As indicated, the respondent went ahead and made deductions of £30 each week from 19 April 2024 until the insurance access totalling £1,000 was recovered.[15]The claimant challenged this decision in correspondence with the respondent. I do not need to go into the detail of those challenges other than to say that the claimant accepted that he was responsible for the accident on 25 March 2024 having hit a bollard. No one else was involved in the incident and there were no other extenuating circumstances. In essence the claimant’s challenges were similar to those he makes before this tribunal today, namely: a) that the clause did not entitle the respondent to make the deduction; and b) that deduction did not reflect, and went beyond, the true cost of the repairs.[16]Again I do not consider it to be relevant to the issues I have to determine in this case but for completeness I am satisfied that the claimant did have a meeting with the respondent’s two witnesses Mr Sindwani and Mr Sturgess and that he was shown the CCTV footage. I am also satisfied that they discussed with him the fact that he was responsible for the damage.
The Relevant Law
[17]Part II of the ERA contains the statutory prohibition on deductions from wages. The general prohibition on deductions is set out in s13(1) ERA, which states that: “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.”[18]Section 13(2) ERA provides as follows: “In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised -(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.”[19]Section 13(3) ERA provides as follows: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[20]Determining what is “properly payable” to the claimant involves resolving the dispute over what the claimant was contractually entitled to receive by way of wages relevant to the claim being pursued.[21]In accordance with the provisions identified above, it is necessary for the tribunal to determine firstly whether there is a contractual provision authorising the type of deduction in question. It is then necessary to establish the scope of that authorisation. If both of these requirements are satisfied, then the tribunal must consider whether the actual deduction is factually justified (Fairfield Ltd v Skinner [1992] ICR 836 EAT).[22]In so far as it may be relevant, in accordance with Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Socitey (No. 1) [1998] 1 WLR 896, HL, a written contract should be interpreted not according to the subjective view of either party, but in line with the meaning it would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract being entered. Context and background can be taken into account to establish the proper meaning of the words in a contract but precontractual negotiations cannot. The use of evidence drawn from sources other than any contractual documentation itself is appropriate as an aid to interpreting express terms only in as much as it assists in discerning what the actual intention of the parties was when they signed up to those terms. Furthermore, the tribunal is not entitled to draw upon surrounding evidence at the time the contract was entered in order to create the bargain between the parties itself. The tribunal must not imply a term into a contract based on an assessment of what it thinks would be a fair bargain. Applying the law to
The Facts
[23]I am satisfied on the evidence that the respondent had the right under the claimant’s contract to make these deductions from his wages.[24]The claimant argues that the term is odd and unclear. As I have indicated already, I am satisfied that on any objective reading the term is not ambiguous and it is clear that it applies to the claimant whilst in employment as well as the situation in which is employment is terminated. It clearly states that the claimant will be liable for the cost of repairing any damage or loss to the company’s property caused by him.[25]The claimant caused damage by reversing into a bollard. That was not the fault of anybody else but the claimant. It had to be from his own negligence. As a consequence he caused significant damage to the near side of the vehicle, including the step box, spoiler, corner bumper and step plates. I am satisfied on the evidence that the invoice for repairs was limited to the damage that was caused by that accident only and not any other damage that had been sustained previously on the vehicle.[26]In any event, the total cost of those repairs came to £1,842.43 but because the respondent was able to recover some of that from the insurers they limited the repair costs being recovered from the claimant to the equivalent of the amount of the insurance access. Again, I reject the claimant’s suggestion that, because the clause in the contract did not refer to the entitlement to recover the insurance access this in some way invalidated the respondent’s entitlement under the contract to recover the sums claimed. It is entirely apparent that the respondent could in fact have recovered the full £1,842.43 but for the fact that some of that had already been paid by their third-party insurers. I should add that even if the cost of the replacement bumper was removed from the repair costs, the remaining repair costs would still vastly exceed the £1,000 limit that the respondent applied to the recovery of these costs.[27]Consequently, the claimant was being held liable for the cost of the repairs for the damage to the vehicle that he caused on 25 March 2024. That falls well within the clause in his contract and accordingly there has not been any unauthorised (and thus, unlawful) deduction of wages. Approved by: