J Mare v Wirral University Teaching Hospitals NHS Foundation Trust: 6010401/2024
JUDGMENT
[1]The judgment of the Tribunal is that: (1) The complaint of unlawful deduction from wages contrary to section 13 Employment Rights Act 1996, is not well founded which means that the claim is unsuccessful. JUDGMENT[2]The judgment of the Tribunal is that: (1) The complaint of unlawful deduction from wages contrary to section 13 Employment Rights Act 1996, is not well founded which means that the claim is unsuccessful.REASONS
Introduction
[1]The claimant presented a claim to the Tribunal on the 2 September 2024 following a period of early conciliation from 29 June to 10 August 2024. He brought a complaint of lawful deduction from wages.[2]The respondent presented a response on 10 October 2024 resisting the claim.[3]The claimant has asked the Tribunal to consider whether the respondent unlawfully deducted his wages by pension contributions to wages having been deducted from his wages. Issues[4]Did the respondent make unlawful deductions from the claimant’s pay contrary to section 13 Employment Rights Act 1996 (ERA), by deducting pension contributions from his pay while working for the respondent? In considering this matter, the Tribunal must consider several questions below.[5]The respondent accepted that the claimant was an employee or worker at the material time and the Tribunal could therefore hear his claim.[6]Did the claimant have accrued pension rights for the period of pensionable service?[7]Did the claimant opt out of the respondent’s pension scheme when he began or during his engagement?[8]If so, how much has the claimant paid to the respondent’s pension scheme from his gross pay following his notification that he wished to opt out?[9]If so, how much should the claimant be paid by way of remedy? Evidence used.[10]The claimant had not provided a witness statement and I therefore used the background information contained within section 8.2 of his claim form which was sufficiently detailed to set out the basis of his claim and for him to be cross examined by Mr Smith.[11]The respondent relied upon the witness evidence of murders Chantelle Crabtree who was a HR officer with the respondent.[12]There was also a bundle provided by the respondent and containing proceedings and contractual documentation.Findings of fact
[13]The claimant (Dr Mare) was engaged as a locum doctor from 7 May 2024 to August 2024.[14]He was written to by Ed staffing on the 8th of March 2024 confirming his appointment to Arrowe Park Hospital, Wirral at a rate of £50 per hour and will be paid by PAYE, meaning deductions would be made by the Trust at source.[15]On 28 April 2024 Plus Us Workforce Services who had been outsourced to manage employment matters by Arrowe Park and that included a proposed contract of employment confirming his status as outsourced payment/employee management (p 44). Dr Mare was reminded that this was the contract between him, and the Trust and it was important to review it. He was warned that if he did not query the contract, it would be assumed to be agreed by him.[16]The correspondence also informed Dr Mare that he would be automatically enrolled into the NHS Pension Scheme from Day1 of his engagement. He could opt out, but if he wished to do so, he must complete an appropriate form which would be submitted to Arrowe Park or Plus Us.[17]The contract referred to an IT Portal in the recitals where Dr Mare could raise issues relating to pay, (p48). Dr Mare said that the Portal was difficult to access, but confirmed he did not seek IT assistance. He did use the Patchwork Portal application, but this related to time recording and not pay and did not feature as part of the terms of and conditions for purposes of cancelling auto enrollment.[18]The Portal identified that Dr Mare was auto enrolled to the pension and pay was clearly described as being paid at a different rate depending upon whether enrolment had taken place, (p51). This was £50 per hour without pension deductions and £44.41 per hour without pension deductions. I accepted that Dr Mare did not opt out of auto enrollment.[19]The contract of employment at section 19.1 in its general section provided that the agreement supersedes previous agreements that had taken place. Section 19.5 also provided deemed acceptance if a worker received the contract electronically and provided their services to the contracting employer engaging the worker.[20]It should be noted that Dr Mare worked for the Trust for the required period under the contract and therefore complied with section 19.5. Dr Mare received his wages promptly and his performance indicated compliance.[21]The claimant did say that he did read the terms and conditions at some point although it was not prior to starting work. He did say a few weeks in he discovered he was not being paid £50 gross per hour but was having deductions of just under £6 taken by way of employee contributions to the NHS Pension Scheme.[22]He did raise this matter with Plus Us and the position was explained to him by them in June 2024. However, he failed to opt out during the remainder of his work with the Trust and continued to receive his pay based upon the deductions to the pension fund, although it is understood from Ms Crabtree that it may be possible for a retrospective application to be made for Dr Mare to retrieve the money that has gone into the pension ‘pot’.[23]So, the engagement ended and for the entire period Dr Mare received his pay based upon deductions arising from auto enrolment to the pension scheme and as described in the contract of employment and surrounding documentation.The Law
[24]Section 13 Employment Rights Act 1996 (ERA) provides that an employer must not make a deduction from a worker’s wages employed by him unless the deduction is required by statute, under a relevant provision in a worker’s contract, or the worker has previously signed their written agreement or consent to the making of the deduction in question.[25]I was not referred to any case law by either side.Discussion
[26]I did hear submissions from Mr Smith regarding whether this was an unlawful deduction from wages claim. Section 13 of the ERA does provide that an employer should not deduct from wages contractually agreed by parties unless it is ordered by statute or subject to an agreement between employer and employee in the contract of employment.[27]I think in many ways there is an interesting argument concerning whether there has been an unlawful deduction from wages because rather than the deductions not being available to the claimant, they were actually used to fund the claimant’s pension contributions into what would be his own pension pot in the name of the claimant. Ultimately, he could access these funds although Ms Crabtree had explained that Dr Mare might be able to recover his payments if he preferred to do so now.[28]Be that as it may in terms of general principles regarding how the wages were apportioned each week, I am satisfied that in advance of the beginning of the engagement the claimant was informed of the automatic enrolment into the pension fund providing that eligibility criteria were met. In Dr Mare’s case, the eligibility criteria were met and in accordance with clause 19.5 of the contract of employment, even though he did not formally agree the contract, he was subject to it by commencing performance with the Trust.[29]He did eventually become aware of the auto enrolment and I am not entirely clear whether this was because he had read the terms and conditions or viewed payslips, but even at that point her refused to make the application to opt out of the auto enrolment.[30]Accordingly, for these reasons I am satisfied that although deductions were made, they were not deductions made within the sense of section 13 because they related to pension deductions rather than something else. But even if they were, they were something where the claimant had accepted and even when he became aware of the nature of his engagement, he refused to begin the processes to reverse the opt out as required.[31]I think I would only say as a positive, he can still make an application to recover the payments. While Ms Crabtree cannot guarantee that this is possible, it does seem likely that he can recover the money deducted, subject to the deduction of the relevant amounts for tax that would be paid had he received the payments as normal salary.[32]In relation to any pension legislation, I think it is the Pension Act 2008 section 54, I agree with Mr Smith’s submission that it is something I do not have jurisdiction to hear. However, it is something where the claimant is free to explore litigation in other forums or to discuss this matter with the respondent, especially as he has wider concerns about how the auto enrolment provision might deter prospective locum doctors from working for the Trust.Conclusion
[33]The claimant did not suffer an unlawful deduction from wages and was paid appropriately by the respondent and the claim cannot therefore succeed.