Mr R Khan v LHR Airports Ltd: 4123260/2018
JUDGMENT
[1]The respondent has made an unauthorised deduction from the claimant’s wages contrary to section 13 of the Employment Rights Act 1996 relating to various shifts in September 2018 that were treated as unpaid by the respondent.[2]This matter has been listed for a remedy hearing at Watford Employment Tribunal for 7 May 2020 at 10am. _____________________________ Employment Judge Skehan Date: 19/07/2019 15/08/2019 Sent to the parties on: ....................... ............................................................ For the Tribunal Office Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 4123260/2018 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr R Khan v LHR Airports Limited Heard at: Watford On: 15 July 2019 Before:REASONS
[1]This is a claim for unauthorised deduction from wages arising from nonpayment of the claimant’s wages for 12 shifts during September 2018 where the claimant was prevented from working as his security ID had expired.[2]The claimant was employed as a security officer and remains employed by the respondent. To allow the claimant to access to airside areas of the airport, he requires valid security ID. For a security officer to be issued with valid security ID, they must present a valid CRC (criminal records check) certificate to the respondent. The respondent then submits an application for a security ID on behalf of the employee. The claimant’s ID expired at the end of August 2018. The claimant was sent a letter on 11 May 2018 to his home address informing him at his security ID would expire and providing him with information on how to renew it. The claimant received his CRC on 24 May 2018 however the claimant did not provide this to the respondent until 6 August 2018, which was after the CRC had expired. The claimant was obliged to obtain a new CRC certificate. The claimant obtained and submitted a new CRC but there was a period of time (12 shifts) whereby the claimant was prevented from carrying out his duties due to absence of the required security ID.[3]My starting point in relation to this claim was the contract of employment that exists between the parties and in particular the provisions at page 39 of the bundle and the two relevant provisions.a. We have clause 8 which deals with deductions from salary: Case No: 4123260/2018 2 “If you have been overpaid, absent without approval or if the company has paid any fines, charges or other penalties which you are responsible for we have the right to make deductions directly from your salary or may ask you to repay it.”b. The second relevant clause is at the bottom of that page marked ‘clause 1’ and it says: “If your job requires you to have an airside pass access to restricted areas the Government insist that you pass a basic criminal records check so we can maintain high security standards. Our Business Support Centre will pay for this check and send you an application form separately. Please complete it as quickly as possible and send the form back to the BSC. The results will be sent to you by Disclosure Scotland rather than BAA. You will then need to forward the certificate to the BSC so you can be issued with your official airside pass. If you fail the check or if any time the company receives information which prevents you from having access to the restricted areas we may have to find you an alternative job.”[4]It was common ground that the procedure set out in the above clause for acquiring a CRC had changed over the years.[5]I have also carefully examined where the parties say there is any written reference to the possibility of the claimant not receiving pay and I was referred to page 44(b) of the bundle being the email that the respondent says was sent to the claimant. This email, at the very end, says: “Please remember that if you do not apply for your CRC in good time so we cannot review your ID pass you may be suspended on zero pay and this could also lead to the termination of your contract of employment. Please ask now.”[6]This is a proforma email produced by the respondent within the bundle. This is not the actual email sent to the claimant. The claimant says that he only received a link to the portal where he could order his CRC certificate and he did not receive the supporting information that is within this email. The claimant says that he applied for his CRC certificate but mistakenly he did not submit it. He says he was not given sufficient information from the respondent and if he was given the information and guidance, he would have followed it. The respondent’s position was that it was most unlikely that the respondent would have just sent out a link. Why would they treat the claimant any different to their other employees?[7]In considering this evidence I have also noted page 48 of the bundle and this is an email from Mr Carter asking for a new link to be sent to the claimant. This is an email that was sent when it was realised that the claimant had to re-do the application for his CRC. Mr Carter was unable to confirm during his evidence as to whether a link may have been sent on its own or whether it was always sent within the proforma letter that I have referred to above. In considering all the evidence, I conclude that on the balance of probabilities the claimant has shown that he did not receive the entire information at page 44(a) and (b) and he just received a link at this time.[8]I also note the evidence that I have been presented with in relation to what the claimant had to do once he had received his CRC certificate. Mr Carter’s evidence in relation to this during the course of cross-examination Case No: 4123260/2018 3 was confused. He twice told me that once the individual received the CRC certificate, the employee did not have to do anything with it. He subsequently clarified that and confirmed to me that the claimant was required to submit the CRC search to the respondent once the claimant had received it. It appeared to me that the position was confused. In addition, Mr Carter told me that there had been for two to three years worth of communications on this point and this matter had been clarified with the employees of the respondent. However, there was nothing provided within the bundle in support of this and it appears to me to add to a general picture of confusion.[9]I also note the email that is at page 47 and this is an email from Savita Raj to Mr Carter of 30 August 2018 and it includes a recommendation that if [the respondent] could emphasise at team briefings to colleagues SMTSMS that CRC must be brought in to authorised signatory as soon as they receive it to complete the ID process. As of 30 August 2018, there appears to be considerable confusion as to the requirements of the employee when dealing with the CRC.[10]I have also looked at what the claimant was told and I refer to paragraph 9 of Mr Carter’s witness statement. Within paragraph 9 of Mr Carter’s witness statement he tells me that: “After my email to Savita I was informed by Mark O’Connor, the head of security campus, that where a colleague is found to be responsible for their CRC certificate expiring they must remain at home unpaid.” and there is a reference to page 46. Then it says: “Following this email I met with Raja on 29 August. If you look at page 46 this is an email from Mark O’Connor to Savita: “Just to reassure you if a colleague is found to be responsible for their CRC expiring then they remain at home unpaid” but this is an email from Mark O’Connor dated 5 September 2018 and there appears to be confusion in respect of the dates and the timelines. The claimant has told me that he was not informed that the leave was to be unpaid until after the period of the shifts. Taking all the evidence into account and on the balance of probability, I accept the claimant’s position that he was not informed until after the period of unpaid leave, that that period was to be unpaid leave.[11]With that background I have gone back to look at the contract of employment and I have looked particularly at the very end of that clause, the very last sentence that says: “If you fail the check or if at any time the company receives information which prevents you from having access to the restricted areas we may have to find you an alternative job.” The respondent’s position is that this is distinguished from the claimant’s position because they did not receive information which prevented the employee from having access. I conclude that the proper reading of that the reference to ‘receives information’ also includes an absence of information. If at any time the company receives information or there is an absence of information which prevents them from having access to the restricted area….. In this case, the respondent had an absence of information, being the CRC check, that prevented the individual having access to the restricted area. The starting point within the contract is that the respondent may have to find the claimant an alternative job. To find otherwise, in the absence of express confirmation from the respondent, would in my view be an unfair and unduly narrow interpretation of this contract term. Case No: 4123260/2018 4[12]I have carefully considered the respondent’s submissions that the claimant was a security officer and it was part of his job to have the security access that he needed. However, when the implied term of making oneself available for work is read alongside a reasonable reading of the express term as to what should happen in the absence of the security pass and coupled with the confusion referred to above, I conclude that the respondent is entitled to provide alternative work for the claimant. Should the respondent choose not to do so, claimant is entitled to be paid.[13]It is not agreed between the parties or set out in writing within the contract that this period of absence would be unpaid. The respondent has drawn a distinction between absences that are outside the control of the individual or absences that are caused by the action or lack of action on the part of the individual but that while it may have been the respondent’s favoured position, it does not appear to have been reflected within the terms and conditions or clearly communicated to th claimant. When looking at a claim for unauthorised deduction from wages under s.13 of the Employment Rights Act, I do not consider that the deduction was made in accordance with the contract and I cannot find a written agreement that entitles the respondent to make the deduction in these particular circumstances.