Mr G E Fordham v Compass Group UK & Ireland Ltd T/a Medirest: 3328372/2017 and 1302517/2018
JUDGMENT
The full merits hearing of these claims is postponed to 29 October 2019 (1 day).REASONS
[1]Prior to the commencement of the hearing of this case there was a detailed discussion with the parties regarding the issues which arise in these claims for unauthorised deduction from wages. The matter was somewhat complicated by the fact that the claimant has filed two claims which, on their face, are not entirely consistent.[2]A considerable amount of time was spent seeking to define the issues and, ultimately, the parties agreed that the essential issue is whether the claimant became subject to the Agenda for Change terms and conditions (AfC). If he did not, he is entitled to:2.1 Higher pay enhancements that he has received for unseasonable hours and2.2 In addition, a night allowance. If he did become subject to the AfC terms, he has no claim.[3]By way of further elaboration, it is common ground that in addition to his basic rate of pay the claimant has been paid an additional 44% salary for working on Saturdays (12pm to 12pm) and weekdays (8pm to 6am); he has been paid an additional 88% for working on Sundays and Bank Holidays. The question is whether the appropriate figures should be 50% for Saturdays and weekday nights and 100% enhancement for Sundays and Bank Holidays – and whether he should have been paid the alleged night allowance. The additional night allowance is stated (in the Grounds of Complaint) to be £666.77 per month.[4]The above statement of the issues was read out to the parties and agreed by both of them.[5]The claimant was latterly employed as a Hospital Porter. He started work as an employee of the NHS on 15 October 2001. In 2004 the NHS Terms and Conditions of Employment became known as the Agenda for Change Terms and Conditions (AfC). In paragraph 2 of the Ground of Complaint (in case no 3328372/2017) he stated that in November 2008 the claimant’s employment with the NHS was transferred pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) to G4S. The claimant’s terms and conditions of employment were not changed and he retained his AfC terms and conditions.[6]Those Grounds of Complaint then refer to a further TUPE transfer in March 2017 to the respondent. The claimant further pleads that on 28 April 2017 when he received his April payslip, he noticed that he was not being paid his correct rates of pay.[7]In further Grounds of Complaint (case no 1302517/2018) the claimant made clear that he did not sign any agreement that his current terms and conditions would change in conjunction with any AfC amendment. He therefore maintained that he was entitled to the same AfC terms and conditions from when he transferred in 2009. These were stated to be the 50%-100% enhancements (and night duty payment).[8]In paragraph 12 of the second Grounds of Complaint, the claimant stated he was therefore bringing a claim for ongoing unauthorised deductions from wages from the date of his TUPE transfer to the respondent ie March 2017 on the basis that he was not paid the contractual enhancements to his rates of pay under his contract of employment. He sought a declaration to that effect and appropriate compensation.[9]It is clear therefore that the claimant’s claim is limited to unauthorised deductions from wages from March 2017.[10]By way of further elaboration, lest it be thought that by the either of the Grounds of Complaint, the claimant was admitting that his original terms and conditions had been amended by the AfC, it emerged that the claimant’s case was that the AfC Terms had never been applied to him. In particular, he produced various payslips long after 2004, including a payslip dated April 2008 to show that he continued to receive the 100/50 enhancement and the night duty payment. Accordingly, it will be necessary for the tribunal to consider whether and to what extent the AfC was applied by way of amendment to the claimant’s contract of employment and, if so, when and how that (or any other relevant) amendment took effect. It is right to draw attention, as did the respondent, to the contract of employment of the claimant, dated November 2001, and in particular to the following paragraph: “1.3 The Trust reserves the right to amend these terms and conditions in the future through the appropriate Trust negotiating forum with recognised Trade Unions. ………………… 4.3 The remuneration is determined by the Trust and as such any amendments to the salary will be decided by the Trust and notified to the employee.”[11]Finally, the respondent referred to Appendix B (Confirmation of Acceptance) which stated as follows: “I understand that the Trust reserves the right to alter or amend my Terms and Conditions from time-to-time in accordance with the pay determination machinery”.[12]Once the issues had been clarified as set out above, it became clear, especially after further examination of the bundles (each party having produced its own) , that there was no proper documentation before me - nor was there witness evidence - bearing on the key issues in this case. Accordingly, with some considerable reluctance (given the amount of time that it has taken for this case to come to a full merits hearing) I acceded to the respondent’s application for a postponement. I did so on the basis of making the case management orders which appear in the separate Case Management Orders.[1]The claimant claims unauthorised deductions from his wages contrary to section 13 of the Employment Rights Act 1996. The claimant originally issued proceedings on 13/10/2017. The claimant issued a second claim form on 18/05/2018 in a different form. The claimant’s claims are difficult to decipher from the original claim forms. The claims were defended by the respondent. At a case management hearing on 25/07/2019 this matter was considered by EJ Bloch QC, who noted:a. A considerable amount of time was spent seeking to define the issues and, ultimately, the parties agreed that the essential issue is whether the claimant became subject to the agenda for change terms and conditions (AfC). If he did not, he is entitled to: i. higher pay enhancements that he has received for [unsociable] hours and ii. in addition, a night allowance.b. If he did become subject to the AfC terms, he has no claim.[2]At the commencement of the hearing, and again at the conclusion of the evidence prior to final submissions by the parties, I revisited the list of issues with the parties. The claimant, acting in person, was confused in respect of the formulation of his claim. In addition to the above formulation of his claim, the claimant told me that he is wages should not be going down. And that he is now receiving less pay than he was in 2012. The claimant appeared confused as to whether or not he considered that AfC applied to him and told me that AfC terms and conditions should not result in reduced pay for him. The claimant says that when a was introduced, there was an obligation on the employer to properly assess and assimilate the claimant’s pay. This was not done and therefore the claimant’s pay has been incorrectly calculated.[3]I heard evidence from the claimant and Mr Dooley on behalf of the claimant. I heard evidence from Ms Plummer and Ms Goodchild on behalf of the respondent. I was provided with a witness statement from a Mr De-Venny, who was no longer employed by the respondent and did not attend tribunal. I explained to the parties that less weight could be given to Mr De-Venny’s statement as he was not present at the hearing to face cross-examination. All witnesses gave evidence under oath or affirmation and all were crossexamined.[4]As is not unusual in these cases, the parties have referred to in evidence of a wider range of issues that I deal with in my findings. Where I fail to deal with any issue raised by the party or deal with it in the detail of which I heard, it is not an oversight or an omission but a reflection of the relevance of that particular piece of evidence. I made findings on the balance of probability, taking into account the witness evidence in considering it alongside the available documentary evidence.[5]The claimant is a porter working at Northwick Park Hospital. The claimant works night shifts from 11pm to 7am on an eight-hour shift rota. The claimant commenced his employment with the NHS Trust at Northwick Park Hospital Harrow on 15/10/2001. In 2004, the NHS introduced Agenda for Change (AfC). The claimant says that the purpose of agenda for change was to roll out a new pay and reward system to modernise terms and conditions for non-medical staff. The aim was to provide equal pay for work of equal value for all NHS staff. The claimant told me that he was subject to the AfC contract, as everybody was. The claimant told me that he was not subject to the AfC as he did not agree to it individually. The claimant says that his contract is the original contract as contained within the bundle, known as the ‘Whitley terms and conditions’. The claimant was unclear and confused throughout the hearing as to whether or not AfC applied to him.[6]It was common ground between the parties that prior to AfC, the claimant was entitled to pay enhancements at the rate of 100% for all time worked on Sundays and public holidays and 50% for all time worked on Saturdays and any weekday after 8pm. Under AfC, these unsocial hours enhancement payments fell to 88% and 44% respectively. The claimant said that when AfC was introduced, his role was not, for reasons unknown to the claimant, assimilated as was envisaged under AfC. The claimant said that while employed directly by the NHS his pay did not reduce and he continued to be paid enhancements at the rate of 100% and 50% respectively. The claimant says that he did not sign any documents to agree to any changes to his contract.[7]The claimant’s original ‘Whitley’ contract was contained within the bundle. In particular noted at clause 17 the contract says: Variation of Contract The Trust reserves the right to vary the contract after consultation and/or negotiation with the individual or the appropriate negotiating group. The employee will be given due notice of any such variations.[8]On 02/11/2009 the claimant’s employment was transferred to G4S. There was some confusion in respect of the correct date of the transfer as during the course of submissions, the claimant said that the actual date of the transfer, by reference to payslips must have been December 2008. The claimant had not noticed this discrepancy previously. The claimant’s terms and conditions were protected in accordance with the provisions of TUPE.[9]The claimant claims that while he was employed directly by the NHS he received a separate night payment in the sum of £666.77. This payment was last made to the claimant in 2008 when he worked directly for the NHS.[10]On transfer to G4S the claimant said that his pay was not assimilated in accordance with AfC and he had considerable problems with underpayments at that time. It can be seen from the documentation produced that £8067.85 as a ‘backpay award’ paid by G4S to the claimant in October 2012. I was referred to correspondence in the bundle from G4S dated 09/10/2012 stating inter-alia that: Over the year we have analysed your pay and pay terms and I can now confirm your Band and Spine as of October 2012 will be: Band: 2 Spine: 8.[11]The claimant told me that the last time he was paid correctly was in 2012, around the time of this back payment by G4S. The claimant was asked whether he agreed that he was correctly assessed as Band:2 Spine 8, by G4S. The claimant’s evidence on this point was confused. He told me that: ‘I have always been in band 2… I am in the right band… I can no longer be band 2… I should be correctly assimilated as something else as I have been there 18 years. The assimilation was required to increase the hourly rate. This means that when the double enhancements are reduced, my pay would not be reduced’.[12]Following October 2012, the claimant said there was a gradual reduction in his pay and considered that the issues he had identified not been adequately addressed or remedied. The claimant says that he continued to complain to G4S and participated within the collective grievance issued March 2013. The claimant said that he continued to complain about his pay to G4S up to 24/03/2017.[13]On 24/03/2017 the claimant’s employment was transferred to the respondent from G4S. The claimant says that he had initiated ACAS early conciliation against G4S on 29/03/2017. However as his employment had transferred to the respondent the claimant abandoned that potential claim and contacted ACAS on 15/08/2017 to start a fresh ACAS early conciliation process against the respondent.[14]I heard evidence from Mr Dooley who is a current trade union officer. Mr Dooley said that he was familiar with the respondent and knew that they were employing staff who had transferred from the NHS and other staff were employed under their own terms and conditions. Mr Dooley said that all staff transferred from the NHS would have been employed under national NHS terms and conditions known as AfC. Mr Dooley explained that all NHS staff since 2004 have been employed under minimum terms of AfC. Mr Dooley made reference to a grievance lodged by the claimant and his colleagues on 09/09/2019. The claimant did not make reference to this within his claim.[15]Mr Dooley said that the while the claimant was subject to AfC, this only applied to AfC changes that existed at the point of transfer of the claimant’s contract from the NHS to G4S. Once the claimant was no longer employed by the NHS, any further changes changes should be through proper consultation and agreement with the employer not any ex-employer. Mr Dooley said that the claimant’s contract is only the AfC contract as it was when he transferred from the NHS. To illustrate his point Mr Dooley mentioned the recent pay increases granted to the NHS. The respondent refused to implement this increase. GMB members in Northwick Park threatened to take industrial action unless they also received the pay award and in May 2019 the respondent paid the award. Mr Dooley stressed that the pay increase was not done automatically, nor was it a legal entitlement hence the GMB could not simply take the matter to the employment tribunal for an unauthorised deduction of wages.[16]Ms Plummer’s has been employed for the respondent since 2008, and in her current role, acting head of HR for Medirest since August 2019. The respondent has many contracts with NHS trusts across the UK for the provision of catering, domestic, facilities management and retail services. The respondent employs 12,000 employees in Medirest, many of which are on TUPE protected contracts. The respondent has approximately 3000 employees, including the claimant, that are on AfC terms and conditions. None of the respondent’s employees are on Whitley terms and conditions. The claimant has no time raised with the respondent that he is not subject to AfC terms and conditions. The information received by the respondent from G4 S indicated that the claimant was subject to AfC. Ms Plummer says that pay increases are implemented following negotiation between the government and the unions. When agreement has been reached about what the increases should be, the outcome is published by NHS England. The most recent pay agreement (the three-year pay agreement) was reached in 2018, the pay rates and enhancements were published in January 2018. At sites where AfC is automatically implemented the pay increases are automatically processed by the contractor. In sites where funding isn’t automatic, the contractor has to request funding from the client, if this isn’t obtained then the AfC increase isn’t processed. The site where the claimant works adheres to full AfC funding which has been processed accordingly and he has received all associated increases while employed with Medirest.[17]Ms Plummer confirmed that the claimant is classed as AfC Band 2 with his annual salary of £19,020. He receives all enhancements and London waiting in line with the banding. In accordance with the AfC terms and conditions the claimant’s works 37.5 hours per week rather than 39 hours as detailed in his original contract. The claimant receives his pay as specified above along with enhancements for working unsocial hours, sickness pay an enhanced annual leave entitlement which increases by length of service. Ms Plummer said that each year the antisocial enhancements change in line with the overarching pay deal. Since the introduction of AfC the enhancements have decreased depending on the banding. The respondent has no control over these changes.[18]I note within Mr DeVenny’s statement he confirmed that he was the operations manager working for the respondent and previously worked for G4S. Mr Devaney says that in 2011/2012 due to a grievance raised by the staff, a full review of AfC spine points took place and as a result, a number of the security team were upgraded and full-back pay was given for any shortages. It was noted that are historically some of his colleagues had been paid double enhancements when working nights and this was picked up by the AfC review carried out. After correcting all pay issues and making backpay payments to the staff that were affected, it was agreed that AfC needed to be implemented correctly and that the 2008 edition was used which states that only one enhanced payment can be made for each worked hour. This process was agreed with the unions.[19]I was referred to documentation in the bundle relating to AfC. In particular I was referred to the AfC Final Agreement, dated December 2004. This is a lengthy document and I do not seek to set it out in full. The most pertinent points covered include:a. The agreement will apply in full to all staff directly employed by the NHS organisations except very senior managers….b. The NHS pay system as a whole will have pay spines. Pay spines will be divided into pay bands. All staff covered by this agreement will, on assimilation, be assigned to one of those bands on the basis of job weight as measured by the NHS job evaluation scheme. Detail is provided on job evaluation, which underpins the new system and there is a detailed process of assimilation.c. Staff on national contracts or other contracts which incorporate, or permit employers to incorporate national agreements on pay and conditions of service will assimilate to the new pay system on the effective dates set out in the agreement. There are separate provisions for staff on local contracts not incorporating national agreements on pay and conditions of service.d. The operational date for the national rollout is said to be 01/12/2004, with an effective date of any changes in pay and conditions of 01/10/2004.e. An employee’s current pay for the purpose of assimilation to the new pay spines and bands, referred to below as basic pay before assimilation is their full-time equivalent basic pay on the effective assimilation date plus the annual value of any job evaluation related allowances plus the average value of any bonus payment under schemes which are discontinued.f. There is a provision relating to pay protection. This states inter-alia that it will apply to a minority of individual staff whose regular pay might otherwise be lower under the new system following arrangements to ensure that any such staff will be no worse off on assimilation. The protection is said to end when the total level of payments under the new system exceeds the level of protected pay, or when the protected person changes job voluntarily, or at the latest on 30/09/2009 for staff in early implementer sites and 31/03/2011 for staff in a national rollout.[20]I was referred to a document entitled ‘Agenda for Change Terms and Conditions of Service Handbook, version 2, August 2007, updated April 2008. This is a lengthy document and the relevant parts include:a. confirmation that staff cannot receive percentage enhancements for unsocial hours and payments for on-call and other extended service, for the same hours of work. Staff will only receive one rate of percentage enhancements for each hour worked.b. There is a table attached to this document, ‘Table 21’, that summarises the percentage uplift payable for ancillary staff, health care maintenance staff and administrative and clerical staff in pay bands 2, 3, 4 and 5. This provides that: i. Between 01/04/2008 and 31/03/2009, for pay bands 2 to 5 inclusive, time on Saturday and any weekday after 8pm and before 6pm attracts an enhanced rate of 50%. All time on Sundays and public holidays attach an enhanced rate of double time. ii. From 01/04/2009 to 31/03/2010, for pay bands 2, this rate falls to 48% and 96% respectively; iii. from 01/04/2010 to 31/03/2011, for pay bands 2, this rate falls to 46% and 92% respectively; iv. from 01/04/2011, for pay bands 2, this rate falls to 44% and 88% respectively.[21]It became apparent during the course of the hearing that in addition to the claimant’s concerns relating to the correct rates of antisocial enhancement payable and the a separate night payment, the claimant questions the actual calculation of his pay, querying the respondent’s mathematical calculation, rather than the basis for the calculation.[22]I heard evidence from Ms Goodchild who explained how the respondent’s pay systems work and why the respondent believe that the claimant is not owed any sums. The claimant transferred to the respondent on 24/03/2017. The information provided by his previous employer, G4 S stated that the claimant was employed on 37.5 hours per week. He worked night shifts and those shifts attracted various enhancements on top of his basic hourly wage. The claimant was entitled to 44% for any hours worked during weekdays between 7pm and 6 am and 44% for any hours worked on a Saturday and 88% for any has worked on a Sunday a bank holiday. The claimant’s basic rate at the date of transfer was £9.19 per hour. Ms Goodchild says that all employees are transferred from the NHS to private sector contractors are subject to AfC rates, if AfC applies to the particular contract.[23]The claimant days of work are not fixed and they can vary from one week to another. The claimant does not work any fixed numbers of Saturdays and Sundays per month. The claimant does not work every bank holiday. Each month the claimant is paid for 163.12 hours at his basic rate. This is calculated by multiplying his basic hours by 52.2 weeks and dividing that some by 12. In addition to his basic pay the claimant has paid shift enhancements that are applied to the actual hours and shifts worked. The respondent operates a cutoff or due date for each month for the processing and payment of any adjustments in addition to basic pay such as overtime or shift enhancements. Payroll cut-off typically falls about three quarters of the way through each month. These enhancements are also subject to the line manager or administrator recording them expediently and without error on the system.[24]Ms Goodchild said that the respondent’s system can cause confusion and there are occasionally teething troubles with employees’ pay immediately after a TUPE transfer because payroll systems differ to those of the outgoing contractor. However the respondent in consultation with the employee always endeavour to correct any errors.[25]During the course of Ms Goodchild’s oral evidence I asked the claimant to refer to a particular pay period where it was alleged that incorrect payments were made by the respondent. I was referred to the payslip for 01/06/2017. The claimant highlighted that in this payslip it could be seen that he was paid basic pay for all 163.12 hours, yet he received enhanced pay for 150 hours only. The claimant highlighted that all of his hours were subject to enhancements and this showed a shortfall. Ms Goodchild explained that the respondent’s payroll was conducted on a 4 or 5 week pay cycle. She checked the dates and confirmed that the pay cycle for that pay slip was a 4 week pay cycle. Although it was not possible to check the rotas, and payment of enhancements could vary depending on the factors set out above, as the claimant worked 37.5 hours per week, enhanced payment for a 4 week period would result in enhanced payment for 150 hours in that period. There was no obvious discrepancy on the face of the payslip. Ms Goodchild’s witness statement provides details of overpayments and under payments made to the claimant together with an explanation for those payments. Deliberations and Findings[26]My starting point in considering this claim is the provisions of the claimant’s contract of employment. The first question is whether or not the claimant’s terms and conditions were altered in 2004 to become subject to AfC. The claimant’s written contract is contained within the employment tribunal bundle. It is an old Whitley style contract that contains the express provision allowing the contract to be varied through negotiation with an appropriate negotiating group. AfC was negotiated between the UK health departments, NHS Confederation, unions and professional bodies. While the claimant’s position was unclear, his only argument suggesting he was not subject to AfC was because there was no individual agreement with him. He is correct, there is no written document expressly incorporating AfC into his contract of employment. However, in light of the provision within his contract allowing variation through collective agreement and the entirety of the remainder of the evidence as set out above, I conclude that the claimant’s contract with the NHS was amended by collective negotiation and subject to AfC.[27]The claimant’s contract transferred to G4S in accordance with the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006, and thereafter to the respondent under the amended legislation in 2014 (TUPE), with his terms and conditions unchanged. There was a historic debate in respect of the correct approach under TUPE for collective agreements. From 31 January 2014, the 'static' approach to collective agreements laid down by the CJEU in Alemo-Herron v Parkwood Leisure Ltd is reflected within the statutory provisions. Where terms of employment are derived from a transferor's collective agreement, reg 4A of TUPE 2006 provides that reg 4(1) (transfer of employment rights) does not apply to transfer terms and conditions where:(1) the provision of the collective agreement is agreed after the date of the transfer and(2) the transferee is not a participant in the collective bargaining for that provision. Although the claimant’s initial transfer to G4S predates the clarification in the legislation, the static approach is the correct one. This was Mr Dooley’s point during the course of the hearing. This does not however affect any collective terms agreed before the date of the relevant transfer which bind employees even if the change itself does not take effect until after the transfer.[28]It is clear from the ‘final agreement’ dated December 2004 and the documentation produced from 2008, that AfC introduced various changes to the claimant’s pay and conditions. These conditions were introduced and incorporated into the claimant’s contract, even though some aspects were said to come into effect in the future. In particular AfC introduced:a. a gradual reduction in the enhancements payable on antisocial hours from 100% and 50% enhancements to 88% and 44% enhancements respectively;b. introduction of a provision whereby staff were entitled to one level of enhancement for each hour worked.[29]The present claim is unconnected with any potential collective agreements negotiated between and unions and NHS directly following the transfer of the claimant’s employment to G4S. I make no comment on those agreements other than to note the respondent’s evidence that AfC pay enhancements are automatically applied to the respondent’s AfC staff at Northwich Park.[30]I have carefully considered the claimant’s submissions that his role was not properly assimilated and his pay did not change while directly employed by the NHS. The claimant said that back when AfC was introduced or in any event prior to his transfer to G4S, his role should have been evaluated and benefited from a pay rise (ie be found to have a higher pay band or spine) to compensate for the subsequent cuts in enhancement rates. However, I also note that:a. the AfC terms, as summarised above, included an initial period where pay was protected. The agreement clearly provides a final latest implementation date of 31/03/2011. Therefore the fact that the claimant noted no change in his pay following the introduction of AfC in 2004 but before his transfer may well be connected to a period of protected pay and does not show that the AfC terms did not, for reasons unknown, apply to him. Mr De Venny’s statement also makes reference to the possibility of erroneous continued overpayment of a night allowance rectified by G4S.b. The claimant’s grievance of 2012 appears to address the question of assimilation as it confirms the claimant’s correct pay band and spine within the AfC structure. This sets out the claimant’s pay band as Band: 2 Spine: 8, within the AfC framework. While the claimant’s evidence was confused, he did not question this assimilation at the time and was unsure as to whether it was now questioned. The claimant’s evidence was that he was last paid correctly in 2012 and all matters that existed at that time were rectified. This leads me to conclude on the balance of probabilities that the claimant’s role was assimilated as required by AfC, at the latest in 2012 when G4S addressed it as outlined above.[31]The claimant was allowed the opportunity to explore his complaints in respect of the miscalculation of his pay, as opposed to the basis of the calculation of his pay, during the course of the hearing as set out above. It is obvious that the respondent’s practice of paying set monthly basic hours, alongside fluctuating enhanced hourly payments that depend upon pay cycles and other factors as set out above create understandable confusion on claimant’s part. The example referred to by the claimant above does not on the face of the payslip show any error. No further detail was provided by the claimant. While the respondent’s pay system needs to be continually checked as it is vulnerable to human error, the claimant had not within this claim identified any underpayment or unauthorised deduction from his wages due to miscalculation on the respondent’s part. Summary[32]Taking all of the evidence into account, I conclude that the claimant’s contract is subject to the AfC terms and conditions. The AfC terms and conditions include those agreed while the claimant was directly employed by the NHS but not introduced until a later date. The claimant is not entitled to the night payment as claimed because AfC prevents double enhancement on hours worked and this payment was ceased in accordance with AfC. The claimant’s role has been assimilated within the AfC pay structure and this exercise was completed at the latest in 2012 and notified to the claimant as set out above. The claimant’s claim for unauthorised deduction from wages contrary to section 13 of the Employment Rights Act 1996 against the respondent is unsuccessful and dismissed.