Mr D Hughes v East of England Ambulance Service NHS Trust: 3312517/2023
JUDGMENT
The judgment of this Tribunal is that the claimant’s complaint of unlawful deductions from wages contrary to s13 of the Employment Rights Act 1996 fails and is dismissed.REASONS
[1]Following a period of ACAS early conciliation between the period 3 September 2023 and 15 October 2023, the claimant presented a Claim Form on 31 October 2023 making a complaint of unlawful deductions from wages up to the sum of £135.92 (net) and by way of remedy seeking compensation for time processing this claim, and a recommendation for the respondent to review the calculation for annual leave payments.[2]By a Response Form (ET3) filed on 31 January 2024, the respondent defend the complaint of unlawful deductions from wages asserting the claimant has received the correct payment in accordance with the contractual terms, and that the claimant is not entitled to compensation or a recommendation as claimed.The Hearing
[3]This hearing was listed by Notice of Hearing dated 29 February 2023. The Notice also contained Case Management Orders for preparation for this hearing.[4]The claimant represented himself as a litigant in person. The respondent was represented by Mr Patrick Keith of Counsel.[5]The Tribunal was presented with a bundle of documents of 159 pages. The Tribunal heard live evidence from the claimant who presented a witness statement of 3 pages, and from Caroline Jones for the respondent who also provided a detailed witness statement.[6]At the conclusion of the oral evidence, both parties made oral submissions. Due to insufficient time to give an oral judgment I reserved judgment. The Issue[7]The Tribunal was not provided with an agreed list of issues. However, it was agreed that the claimant’s claim was for an unauthorised deduction from wages in the sum of up to £135.95 representing an underpayment for annual leave pay for leave days taken on 3,4,24, and 25 June 2023.Findings of Fact
[8]The respondent is an NHS Trust responsible for providing 24 hour access to accident and emergency services to those in need of emergency treatment and transport in Bedfordshire, Hertfordshire, Essex, Norfolk, Suffolk and Cambridgeshire.[9]The claimant commenced employment with the respondent on 6 January 2020 as a make Ready Operative and remains in their employment. He is a Band 3 (for pay scale purposes) and works shifts doing irregular hours.[10]The claimant’s terms of employment are set out in the Principal Statement of Terms of Conditions of Employment dated 20 July 202 and the policies and procedures contained in the Trust Handbook.[11]The claimant’s terms and conditions of employment at Para 19 sets out his annual leave entitlement. The annual leave entitlement is not in dispute.[12]For the purposes of this case, the relevant term relating to the calculation of pay in respect of annual leave is Section 13.9 of the NHS Terms and Conditions of Service. and the EAST24 Policy.[13]The claimant’s basic pay is calculated on an hourly rate based on the hours worked. Also depending on the days and times of shifts worked, the claimant may be entitled to overtime pay, if worked and an additional payment for unsocial hours worked, (i.e unsocial hours enhancement) These payments are therefore included in the weekly pay.[14]The calculation method for pay during periods of annual leave is set out at Section 13.9 of the Terms and Conditions of Service Handbook, which states, “Pay during annual leave will include regularly paid supplements, including any recruitment and retention premia, payments for work outside normal hours and high cost area supplement. Pay is calculated on the basis of what the individual would have received had he/she been at work. “For staff who have regular hours the reference period should be based on the previous three months at work or any other reference period that may be agreed locally.” With effect from 06 April 2020, for staff who have irregular hours the reference period should be based on the last 52 weeks. When calculating the 52 full weeks of pay, employers are limited to referencing the previous 104 weeks from the date the leave begins.[15]Paragraph 4.1 of the EAST24 Policy on Annual Leave states, “Whilst on annual leave staff will be paid an average of their unsociable hours earnings for previous 13 weeks of unsocial hours. This is regardless of whether staff are substantive or relief staff.”[16]It is not in dispute the claimant took annual leave on days 3,4,24,25 and 27 June 2023 Claimant’s claim[17]The claimant’s claim is that for leave days of 3,4,24, and 25 he has received an underpayment, according to his calculations amounting up to £135.92 (net) on the basis that had he worked on these days, he would have received 46 hours of unsociable enhancements in the sum of £135.92. As part of his evidence the claimant provided his calculations to show this underpayment which are not agreed by the respondent. According to Caroline Jones the claimant has been correctly paid.[18]The claimant submitted that his claim is not about the contractual rules and policies but about the material difference in his pay received compared to what he would have received had he been at work on those annual leave days. He claims the contractual clause Section 13.9 is unfair. The Respondent’s position[19]Mr Keith in his submissions submitted that the claimant is not only challenging the calculation method, but also the contractual policy and Section 13.9. The claimant’s interpretation of the contractual clauses is flawed. The Legal Framework[20]Neither party addressed the Tribunal on the applicable law. It was common ground that the issue was one of interpretation of the relevant contractual provisions and if an unlawful deduction from wages is made out then the relevant provision is Section 13 of the Employment Rights Act 1996.Conclusion
[21]In my analysis this issue must be determined in accordance with the applicable contractual terms which the claimant is bound by, namely Section 13.9 of the NHS Terms and Conditions of Service and Paragraph 4.1 of the EAST24 Policy on Annual Leave. These should be read together.[22]These contractual terms clearly state that pay during annual leave will include payments for work outside normal hours (i.e unsociable hours enhancement) and that all staff on annual leave will be paid an average of their unsociable hours earnings for the previous 13 weeks. I disagree with the claimant’s contention that the contractual terms either state or were meant to state that employees are entitled to receive the unsociable hours enhancement based on the amount they would have been paid had they been at work for those leave days. The important term which the claimant has omitted to include in his interpretation, is , “Whilst on annual leave staff will be paid an average of their unsociable hours earnings for previous 13 weeks of unsocial hours. This is regardless of whether staff are substantive or relief staff.” Paragraph 4.1 of the EAST24 Policy. This contractual term does not state what the claimant argues should be the position. The claimant is mistaken in his interpretation of the contractual terms. Further, he is seeking to import a term which he considers should be the appropriate term.[23]I also take note of the view expressed by Caroline Jones that if the claimant’s interpretation is correct, this would cause a significant issue to the respondent in terms of staffing levels as it is likely employees would seek to take annual leave during shifts that attract most enhancements. Further, the point of using averaging method is to ensure that holiday pay reflects employees’ average pay over the reference period, so to ensure there is no disadvantage to employees for taking a period of annual leave, at any point during the year.[24]The onus is on the claimant to establish his claim. He has failed to do so. Accordingly this claim is not well founded and is dismissed.Conclusion
[1]The claimant’s complaint of unlawful deduction from wages was dismissed by a reserved judgment sent to the parties on 19 August 2024.[2]The claimant made an application for reconsideration by email sent on 23 August 2024.The Law
[3]The Employment Tribunals (Procedure Rules)(Consequential Amendments) Regulations 2024 contains the Employment Tribunal Procedure Rules 2024 (“the Rules”).[4]Under Rule 68 of the Rules, the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision may be confirmed, varied or revoked.[5]Rule 69 provides that an application for reconsideration under Rule 68 must be made in writing (and copied to all other parties) within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties.[6]The process by which the Tribunal considers an application for reconsideration is set out in Rule 70. Rule 70(2) provides that where an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused and the Tribunal shall inform the parties of the refusal.[7]Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA. Paragraphs 34 and 35 provide as follows: “34. […] a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[8]The claimant’s application was received within the relevant time limit in accordance with Rule 69. The application has been copied to the respondent representative.[9]In summary, the two fundamental grounds which are relied upon and are relevant to whether the judgment should be revoked or varied are;a. The respondent Annual Leave Policy, in particular EAST24 Policy on Annual Leave does not form part of the claimant’s contractual terms of employment.b. The respondent has not demonstrated that the claimant was correctly paid for the claimed sum.[10]The Tribunal has considered these grounds as set out below. Ground (a)[11]Contrary to the claimant’s interpretation and assertion, the Tribunal concluded that Section 13.9 of the NHS Terms and Conditions of Service and Paragraph 4.1 of the EAST24 Policy on Annual Leave did form part of the claimant’s contractual terms of employment. Ground (b)[12]Caroline Jones of the respondent, in her witness statement at Paragraph 23, and confirmed in her oral evidence stated that, “ I have reviewed the annual leave hours booked on GRS and calculated the difference between what he was paid and what he would have been paid had he actually worked the shifts during the period of leave and I do not believe the figure provided is accurate.” Also at Paragraph, 22, she stated “it is not clear how this has been calculated” (i.e the sum claimed of £135.92) On this issue, the Tribunal preferred the respondent’s evidence.[13]The Tribunal has noted the application does not raise any procedural error but however, seeks to challenge the Tribunal’s interpretation and applicability of Section 13.9 of the NHS Terms and Conditions of Service and Paragraph 4.1 of the EAST24 Policy on Annual Leave to the claimant’s terms of employment. If therefore an error of law has been made, this is a matter for appeal and not reconsideration.[14]The Tribunal understands the claimant has made an appeal to the Employment Appeals Tribunal (“EAT”). It is therefore a matter for the EAT to determine.[15]In the circumstances the application for reconsideration of the judgement is refused.