Mr G Williams v Welsh Ambulance Services University NHS Trust: 6014531/2024
JUDGMENT
The Claimant’s complaint of unauthorised deductions from wages fails and is dismissed.REASONS
[1]The hearing was to consider the Claimant's claim of unauthorised deductions from wages, brought by way of a Claim Form issued on 9 October 2024, following a period of early conciliation with ACAS between 17 July 2024 and 7 August 2024.[2]The Claimant remains employed with the Respondent, having commenced employment in November 2009. His claim relates to deductions made from his salary from the end of 2023, which have continued to date and are intended to continue for several years into the future.[3]I heard evidence from the Claimant on his own behalf, and from Anna Stein, People Services Partner, on behalf of the Respondent, both in the form of written witness statements and oral answers to questions. I considered the documents in a hearing bundle spanning 308 pages to which my attention was drawn, and I took into account the parties’ closing submissions.Law
[4]Section 13(1) of the Employment Rights Act 1996 (“ERA”) provides that "An employer shall not make a deduction from wages of a worker employed by Case No: 6014531/2024 2 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.".[5]However, section 14(1) ERA provides that section 13, i.e. the right not to have deductions made from wages, "does not apply to a deduction from a worker's wages made by his employe where the purpose of the deduction is the reimbursement of the employer in respect of - … an overpayment of wages … made (for any reason) by the employer to the worker.".Findings
[6]The Respondent is the NHS Trust which provides emergency medical services within Wales.[7]The Claimant commenced employment with the Respondent in November 2009, starting as an Assistant EMS (Emergency Medical Services) Controller at Band 3, and progressing to an EMS Allocator at Band 5, where, by November 2021 when his role changed, he had reached the top of the Band. Up to November 2021, the Claimant worked in one of the Respondent’s Clinical Contact Centres.[8]In 2021 however, the Claimant applied for an operational role within the Respondent’s organisation, and, in September 2021, he was offered a position as a Trainee EMT (Emergency Medical Technician). His letter of appointment, dated 27 September 2021, confirmed that the role would be at Band 4, but then only set out the salary scale applicable to that Band. The letter did not specify where within the Band the Claimant would be placed. It did state that, "Previous NHS service at the same or a higher grade may be taken into account in determining your commencement salary in accordance with NHS Terms and Conditions of Service. However, this is subject to confirmation of relevant service from your previous NHS employer.". The NHS Terms and Conditions of Service, otherwise known as "Agenda for Change", did not however provide any further detail on that.[9]The Respondent has a specific policy and procedure relating to starting salaries for appointees joining and re-joining the NHS. It states, at paragraph 1, that, "In general, new starters or re-joiners to the NHS should start on the minimum of the Band and work their way up.".[10]The policy also states, at paragraph 2, that it applies, "to all appointments made on AfC pay and terms and conditions of employment, where the appointing officer is required to consider an individual’s previous NHS reckonable service and/or appropriate employment experience relevant to the post.".[11]Mrs Stein, in her evidence, confirmed that that policy had been applied for several years to individuals taking up new jobs from within the Respondent’s organisation as well as to people applying externally, although it was far from clear as to whether any employee applying internally would have been aware of that. Mrs Stein’s further evidence, that a new policy dealing with everyone taking up new positions was being developed, suggested that it would not Case No: 6014531/2024 3 necessarily have been clear.[12]The Claimant commenced work as a Trainee EMT in November 2021, but his contract of employment for his new role was not issued until June 2022. That contract again referred to the job being at Band 4, but again without specifying the actual salary. The contract did however contain a clause saying that the Respondent, "reserves the right to withhold salary and benefits, or make deductions from salary/wages in respect of unauthorised absence from work, overpayment of salary and/or expenses".[13]The Claimant received his first pay in his new role at the end of November 2021, and could see that that had been calculated by reference to the bottom of Band 4. He emailed a member of the Respondent's Recruitment Team on 1 December 2021, noting that others on the same training course as him, who had transferred from roles where they had been at the top of Band 4, had stayed at the top of the Band, and that he had thought that his starting salary would also be at the top of Band 4.[14]The Recruitment Manager emailed the Respondent's Payroll team on 1 December 2021, saying, "Can you please confirm if Gwion Williams … will be placed at the top of the band 4 as he was previously at the top of the band 5 in his previous role?". She also emailed the Claimant on that day, noting that she would see what payroll came back with, that they may request that a starting salary request be submitted, or that there may just have been an error.[15]Whilst no direct evidence was provided, it appeared that the Payroll department mistakenly read the Recruitment Manager’s email as a direction to pay the Claimant at the top of Band 4, and not, as it was, a question as to whether he should have been placed at the top of Band 4. Consequently, the Claimant was then paid at the top of Band 4 from December 2021 onwards. He ended up being paid at that level for most of the subsequent two years.[16]In June 2022, a concern was raised by one of the Respondent’s managers that the Claimant, and one other individual who had also moved to a Trainee EMT role, had been incorrectly placed at the top of Band 4. Emails were exchanged internally between various members of the Respondent's Payroll and HR teams, including Mrs Stein, and it appeared that the Payroll team had placed the Claimant at the top of Band 4 on the assumption that the same skill set was involved in the two roles.[17]In January 2023, the Claimant’s Locality Manager then contacted him to advise that his pay could be wrong, and that he should have started at the bottom of Band 4. The Claimant queried that with the Respondent's HR department, who referred the Claimant back to his Locality Manager, but it was not until a Teams meeting on 14 August 2023 that the matter was taken further.[18]Then, the Locality Manager informed the Claimant that he should have been placed at the bottom of Band 4 and not the top, and that there had therefore been a significant overpayment to him. The Manager asked the Claimant to identify any transferable skills from his old role in order to complete an incremental credit form so that he could, nevertheless, be placed at the top Case No: 6014531/2024 4 of the Band. The Claimant was then sent a letter on 4 October 2023, confirming that he had been overpaid between December 2021 and August 2023, which had led to a total overpayment of £6,698.17 gross, £4,334.01 net.[19]A further meeting between the Claimant and the Locality Manager then took place on 20 October 2023. During this, the Claimant completed a salary overpayment form, the template for that form being contained in the Respondent's Procedure for the Recovery of Overpayments.[20]That Procedure provided that overpayments would be reclaimed over the same period as the overpayment, up to a maximum of 12 months, or over a mutually agreed shorter period. The Procedure also noted that, where an employee believes that they cannot make the repayment within that timescale, they should complete the form at Appendix 1 for consideration by the Respondent's Director of Finance.[21]That was the form completed by the Claimant on 20 October 2023. In that, he noted the reason for the overpayment and the amount of it, £4334.01, and that it had been made over a 21-month period. He further asked for the repayment to be taken at the rate of £50 per month rather than the approximately £200 per month that would otherwise have happened, due to his financial circumstances, with the position to be reviewed in six months’ time as he was also submitting an incremental credit application.[22]The Claimant also submitted that application on 20 October 2023, noting that he felt that his duties in his EMS Allocator justified his placement at the top of Band 4 in his Trainee EMT role.[23]From November 2023, the deduction at the rate of £50 per month was made from the Claimant’s salary.[24]Having not heard anything in relation to his incremental credit application, the Claimant asked his Locality Manager for an update on 19 December 2023, and he was told that HR had confirmed, on 13 November 2023, that it had been rejected.[25]The Claimant re-submitted his incremental credit application in April 2024, changing only the requested placement at the top of Band 4 to a request to be placed at any incremental point in the Band. He did not provide any additional information, and the application was not taken further.[26]The Claimant then submitted a "Respect & Resolution" request, i.e. a grievance, on 26 May 2024, and that was rejected on 3 July 2024, following a meeting on 1 July 2024. The Claimant appealed that outcome on 12 July 2024, but the appeal was rejected on 24 September 2024, following a meeting on 13 September 2024.Conclusions
[27]Taking into account my findings in the context of the issues arising from the Claimant's claim, my conclusions were as follows. Case No: 6014531/2024 5[28]First, with regard to section 13 ERA, I considered whether the deductions made, and to be made, from the Claimant's wages could be said to have been previously agreed to by the Claimant in writing. In that regard, I noted that the Claimant had completed a form entitled "Salary Overpayment Form" on 20 October 2023, in which he had recorded the net overpayment, the period over which it had been made, and the reason for it. He then applied for deductions to be made at the rate of £50 per month.[29]On the face of it, that appeared to be an agreement by the Claimant to the making of the deductions from his wages to the tune of £50 per month, thus falling within section 13(1)(b) ERA. However, I noted that the form was drawn from the Respondent's Recovery of Overpayments Procedure, and was specifically referred to within that Procedure as being a form for consideration by the Respondent in relation to an extended period of repayment.[30]That still, on the face of it, could nevertheless have meant that there was consent to the deduction. However, I was conscious that the Claimant's evidence, which was not contradicted by the Respondent, was that he had completed the form to ensure that the alternative of a deduction of £200 per month, which would otherwise automatically have been made, was not made.[31]I noted that, in the form, the Claimant had said that he was asking to repay £50 a month, to be reviewed in six months time, as he had submitted an incremental credit application. The Claimant was of the view that his skills and experience from the Allocator role would justify his placement at the top of Band 4 in the Trainee EMT role via the incremental credit application. Although that was not ultimately accepted by the Respondent, I did not consider that it could be said that the Claimant had unequivocally consented to the deduction such that sub-paragraph (b) of section 13(1) ERA applied.[32]However, when moving to consider section 14 ERA, I noted that section 13 does not apply, i.e. that there can be no question of deductions being unauthorised, where the deductions are to recover an overpayment of wages made for any reason. In my view, due to errors within the Respondent's internal procedures, overpayments had arisen, and section 14 ERA was therefore engaged.[33]The contractual documentation provided to the Claimant, in terms of the offer letter and contract, did not provide any commitment to the Claimant that he would be placed at any specific point on the applicable Band in his new role. Furthermore, the Respondent's policy for employees joining and re-joining the NHS notes that new starters should start at the bottom of the band and work their way up.[34]Whilst I could entirely understand the Claimant's point that he was not a new starter or re-joiner, I could also see the sense of the Respondent assessing a new, and potentially fundamentally different, job in those terms. Indeed, as I have noted, paragraph 2 of the Respondent’s policy notes that it applies to all appointments made on Agenda for Change pay and terms and conditions of employment, where the appointing officer is required to consider an individual’s previous NHS reckonable service and/or appropriate employment experience relevant to the post. Case No: 6014531/2024 6[35]In terms therefore of the placement of the Claimant within Band 4, I saw nothing unlawful about him being placed at the bottom. The Claimant then made an incremental credit application to be placed at the top of Band 4, or later at any higher point in Band 4, which was rejected. In the absence of any evidence that that rejection involved bad faith, there was nothing unlawful about that.[36]The Claimant was then improperly, and through no fault of his own, paid at an inappropriately high rate, and it was in order for the Respondent to recover that overpayment.[37]The Claimant contended that his position contrasted with that of one of his colleagues, who had also transferred into a Trainee EMT role, but from a previous Band 4 role where he had been at the top of that Band, and who had retained that level of salary in his new role. However, no evidence of any rationale for that was put forward, and, in any event, adapting an old adage, it did not seem to me that the fact that one person may have been properly placed at the top of Band 4 of itself required another person to be placed at the top of Band 4.[38]Fundamentally, as far as the Claimant's individual position was concerned, there was nothing to point to him being in any way entitled to be placed above the bottom of Band 4. The payments made to him above that level arose through internal error and therefore amounted to overpayments, and the Respondent's recovery of those overpayments did not amount to unauthorised deductions by virtue of section 14 ERA.[39]As the Respondent accepted in the internal grievance processes, there were failings in its processes. It is also, to say the least, unfortunate that an issue which had been identified in June 2022, was not resolved until November 2023, thus causing a significantly higher overpayment to arise overall than should have been the case. However, that does not detract from the plain application of section 14 ERA, which means that no unauthorised deductions from the Claimant's wages have taken place, or will take place. Therefore, the Claimant’s claim failed and fell to be dismissed. Authorised for issue by