Mr A Sher v London Borough of Newham: 6016280/2024
EMPLOYMENT TRIBUNALS
Case No 6016280/2024
Between
Mr A SherClaimantLondon Borough of NewhamRespondent
Before
Employment Judge RaoIn person for claimantRepresented by Mr P Ward (instructed by counsel (in-house)) for respondentDate 24 March 2025
JUDGMENT
[1]The complaint of unauthorised deductions from wages pursuant to section 13 of the Employment Rights Act 1996 is not well-founded and is dismissed.[2]The respondent’s application for costs pursuant to rule 74(2)(a) and 74(3) of the Employment Tribunal Procedure Rules 2024 is refused.
REASONS
[1]By way of claim form dated 25 October 2024 the claimant, Mr Sher, brought a claim for unauthorised deduction of wages against the respondent, the London Borough of Newham (‘the Council’).[2]On 6 November 2024 the Tribunal directed that the claimant send the respondent a document setting out how much he is claiming and how the amount has been calculated, with copies of all supporting documents and evidence. Several attempts by the respondent to obtain this information have met with failure.[3]On 3 December 2024 the claimant sent to the Tribunal an 11-page pdf consisting of a 1-page August 2024 payslip and a 10-page contract of employment dated 10 November 2023.[4]On 4 March 2025 Mr Ward wrote to the Tribunal by email, copying the claimant stating that the respondent would seek an order striking out the claim, and an order for costs against the claimant. Accompanying Mr Ward’s email was correspondence between the parties putting the claimant on notice of costs consequences. Relevantly, on 24 February 2025 the claimant wrote to Mr Ward, “Respectfully, and as you are already aware - I have told you, Immediately cease all contact with me. Or else you will face the consequences yourself, personally.” The hearing – preliminary matters[5]I explained to the parties that the Tribunal had received the 11-page pdf from Mr Sher but no material setting out the sum or reasons for his claim.[6]I invited Mr Sher to explain in non-legal terms what he was asking the Tribunal to do. He said that he had taken some time off during his probation period with the respondent, from approximately April-May 2024 or March-April 2024 (he stated he had given the exact dates to the Tribunal). He had informed the respondent, provided a doctor’s letter, and put in a claim for statutory sick pay. At some point he came back to work, and his employment then ended. He said that his last payslip showed that he was given a salary for sick pay but that it was deducted from him after he left work.[7]I asked Mr Sher why information about what he was claiming and the reasons for the claim were not included in his ET1 or in any communications with the Tribunal. He stated that he had made ACAS aware of all the details and thought this was sufficient. He stated that he had told the respondent the substance of his claim and had provided them with all the evidence.[8]Mr Ward stated that this explanation of the claim came too late in the day. It gave the respondent no opportunity to prepare its case in reply. The respondent had not received any material from the claimant about the claim. He himself had not seen the 1-page pdf before today. He would apply to dismiss the claim. The 1-page payslip was forwarded to Mr Ward with a view to his taking instructions upon it.[9]I gave Mr Sher time to consider the possible dismissal application and the options available to him. These included seeking permission to rely upon additional evidence today, or applying for a postponement (by agreement, by demonstrating exceptional circumstances, or fault of another party or the Tribunal).[10]When the hearing resumed Mr Ward informed me that the respondent was not in a position to provide a response on the payslip today.[11]I asked Mr Sher to identify the sum of money he said was wrongly deducted. He said that it was the figure of £4,924 shown as “Sick Offset Retroactive” on the August 2024 payslip.[12]I then asked Mr Sher what he wanted me to do with his case today. He said that he wanted me to consider the entire case but was not asking for a postponement, and did not have any further evidence to provide. I reiterated that this was his opportunity to present his case and evidence and that he could apply to rely upon additional evidence or to postpone in order to gather it. He confirmed that he understood this. He asked me to proceed today.
Law
[13]The right not to suffer an unauthorised deduction from wages is contained in section 13(1) of the Employment Rights Act 1996: “An employer shall not make a deduction from wages of a worker employed by 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.”[14]Per section 13(3), “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.” The substantive hearing[15]I explained that this was Mr Sher’s opportunity to give evidence in support of his case. Mr Sher told me that he did not want to give evidence. I explained that doing so would allow me to better assess the appropriate weight to give to his evidence. He declined to do so.[16]Mr Sher asked me to allow his claim and to award him the sum that he said was wrongly deducted from his payslip. He stated that he worked for the Council and was owed this money. He believed he was wronged by the Council.[17]The claimant did not seek to adduce additional evidence or postpone. I was satisfied that he understood the consequences of these decisions and had had sufficient time to consider his options both before and during the hearing. Importantly, having regard to the claimant’s status as a litigant in person, I took the time to set out in non-legal terms the purpose of these proceedings, what information was expected from a claimant and why, and the options available to him.[18]Mr Ward invited me to dismiss the claim for lack of evidence. He relied upon the respondent’s attempts to ascertain the specifics of the claim and the evidence supporting it. The respondent had set out its position in correspondence: it believed it had paid all sums owing and made no unauthorised deductions.[19]The respondent did not ask me to postpone the hearing and did not ask me to consider any evidence.[20]The evidence before me therefore consisted of a single payslip for August 2024 and a copy of the claimant’s contract dated 10 November 2023.
Findings of fact
[21]Doing the best I could on the evidence before me, I found that there had not been an unauthorised deduction from the claimant’s wages.[22]I found that the payslip of August 2024 shows a deduction of £4,924 described as “Sick Offset Retroactive”. I had no evidence before me, such as previous payslips, on which I could conclude that this was an incorrect description.[23]I noted that the claimant’s contract contains a sick pay policy and an overpayment clause agreeing to deductions where overpayments have been made. Again, I had no evidence before me about whether and how this policy or the clause were applied.[24]I had regard to the provisions of the Equal Treatment Bench Book. I made generous allowances for the fact that the claimant is a litigant in person who has told me that he suffered an extended period of ill health last year. It would not be reasonable to expect a litigant in person to identify specific legal principles or use legal terminology. The Tribunal is, however, entitled to expect that a claimant will comply with its orders or explain why compliance is not possible. The orders in this case simply asked the claimant to provide modest details of the claim in layperson’s terms, attach supporting material, and copy the respondent into communications. This would have enabled the Tribunal to identify the nature of the claim and the basis for it. It would also have enabled the respondent to prepare a response.[25]I did not consider that it would be fair to draw an adverse inference from the lack of evidence or explanation from the respondent.[26]I found that the respondent had made reasonable efforts to ascertain the nature of the claim. I had insufficient evidence to be able to decide what material the claimant had sent to the respondent and whether it included the payslip and the contract (the only two items the Tribunal had been given). I considered that this was not itself a point I needed to decide. The respondent might reasonably be expected to have these two items in its possession already. The crucial point in my judgment was that these items did not by themselves adequately explain the nature of the claim or the reasons for it such that the respondent could fairly be expected to answer it. A claimant is obliged to give sufficient detail in time to allow each party the opportunity to put its case coherently, thus assisting the Tribunal to reach a reasoned conclusion on the issues in dispute.[27]That was not done here. I was nonetheless asked to consider this claim on its merits and I duly did so. In my judgment there was insufficient evidence before me to make out the claim of an unauthorised deduction from wages. Conclusion on unauthorised deduction[28]The complaint of unauthorised deduction from wages was dismissed. Costs application[29]Mr Ward applied for a costs order under rules 74 and 75 of the 2024 Rules.[30]He said that the claimant had acted unreasonably pursuant to rule 74(2)(a), and had failed to comply with Tribunal orders pursuant to rule 74(3). He relied upon the claimant’s conduct in failing to particularise his case and in the language of his email (set out above). Mr Ward explained that the claimant’s words “Or else you will face the consequences yourself, personally.” caused him to fear for his physical safety. The respondent took appropriate security measures and incurred further costs as a result. The Council’s costs are ultimately met by the taxpayer. Mr Ward further relied upon submissions made by the claimant today which, Mr Ward said, constituted additional allegations about Mr Ward’s conduct.[31]Mr Ward sought a sum which he stated represented a partial contribution to costs calculated as favourably as possible to the claimant. The figure of £1435.50 represented 4.5 hours of work by a fee earner grade B London 2 at £319/hour.[32]Mr Sher did not want to make submissions in response to Mr Ward’s reasons for the costs application. He felt that as he did not have legal representation he could not adequately put forward his position whilst safeguarding himself from further applications. I explained that he could ask for time to consult a lawyer. He did not wish to do so.[33]I asked Mr Sher if he could provide me with any information about his financial position so that I could consider it under rule 82 (ability to pay). He told me that he was receiving universal credit and was in quite a lot of debt. Costs – law[34]Costs do not follow the event in this Tribunal.[35]Rule 74 relevantly provides: (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.[36]The principles that apply (on an earlier but substantively identical version of the Rules) are set out by Mummery LJ in Yerrakalva v Barnsley Metropolitan Borough Council [2011] EWCA Civ 1255, [2012] ICR 420. At §41 the Court said, “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”[37]That whole picture includes factoring in the conduct of the other party other relevant matters (at §§48–52).[38]In Abaya v Leeds Teaching Hospital NHS Trust [2017] UKEAT/0258/16/BA Mr Justice Singh set out three stages in the exercise:a. Whether the precondition for making a costs order has been established. That is merely a necessary and not a sufficient condition.b. The Tribunal must consider whether to exercise its discretion to make an award of costs.c. If the Tribunal decides that it appropriate to make an award of costs, the third stage is to assess the quantum of that award.[39]Rule 82 of the 2024 Rules provides: “In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.” Costs decision[40]I found that Mr Sher’s conduct in writing to Mr Ward as he did was unreasonable conduct for the purposes of rule 74(2)(a). I acknowledged that Mr Ward perceived the words as a physical threat. I gave Mr Sher the benefit of the doubt that his words were not intended as such but were instead written in the context of Mr Ward’s earlier comments about costs consequences for Mr Sher.[41]I found that Mr Ward had been acting in accordance with the Tribunal’s orders, the overriding objective, and his duties to the Tribunal as a legal professional. He was seeking details about a claim his client needed to respond to and exploring appropriate ways of resolving it. He properly put the claimant on notice about possible costs consequences and applications that he proposed to make about the claim. I found that he was correct to contact the claimant in these circumstances.[42]Looking at the whole picture, as I was required to do, I found that it was unreasonable for the claimant to write as he did to Mr Ward.[43]I further found that Mr Sher was in breach of the Tribunal’s orders made on 6 November 2024. He asserted that he did provide all of his claim details and evidence to the respondent as directed, but declined to provide further evidence about this or any other matter.[44]I then considered carefully whether to exercise my discretion to make a costs order in these circumstances. On balance I did not consider it fair or just to exercise that discretion on the facts before me either for unreasonable conduct or for breach of orders. I took into account Mr Sher’s status as a litigant in person and his financial circumstances. I also took into account the overall conduct of the proceedings, Mr Sher’s cooperation with the hearing itself, and the fact that the hearing progressed as listed and was concluded. I therefore declined to exercise my discretion to award costs. Conclusion on costs[45]The respondent’s application for costs pursuant to rule 74(2)(a) and 74(3) of the Employment Tribunal Procedure Rules 2024 is refused. Approved by: