Executive Group Ltd v Bailey [1998] UKEAT 1012_98_1811

EAT
Executive Group Ltd v Bailey
[1998] UKEAT 1012_98_1811 · 1998-11-18

JUDGE D PUGSLEY :

This is a hearing of a preliminary issue in a case involving an order made by the Tribunal sitting at London (South) concerning a claim under the Wages Act.The facts of the case are very simple. The Applicant had been employed by the Earls Court & Olympia Ltd ("E C & O") at the Earls Court Exhibition Centre from 14 May 1979. By a letter dated 17 May 1996 E C & O notified him of its intention to contract out cleaning services. They said that he had to retire on 30 June.The Applicant unsuccessfully brought an unfair dismissal claim. The Tribunal in that case heard the evidence and they came to the view that he had no right to bring a claim for unfair dismissal, since he had reached the normal retiring age at the time his employment was terminated. E C & O contracted the cleaning services to the Respondent with effect from 1 July and employees employed by E C & O were transferred under TUPE to the Respondent. On the evidence in this case the Tribunal came to the view that the Applicant was dismissed by E C & O and his dismissal was not in connection with the transfer of the business.The Applicant was however taken into employment by the Respondent as from 1 July 1996 under a new contract and he worked among fellow employees, who had been transferred under TUPE, and who were employed at their previous hourly rate. The Applicant noted his rate was less than the others. This was raised on his behalf by his Trade Union and the Applicant's case was that the management agreed to pay him the same rate as fellow workers, being £6.67 per hour. The hourly rate continued until 6 December 1996, when it was unilaterally reduced to £5.25 per hour. This was not confirmed into writing until 10 March.The Tribunal heard evidence on behalf of the Applicant that his hourly rate was amended, so it should be £6.67 and no evidence was called to rebut this. The manager with whom the agreement was made was not called. Indeed, the Tribunal Decision notes that the Respondent conceded that the hourly rate should have been £6.67 until 10 March 1997.In paragraph 5 the Tribunal Decision reads thus:
"5. The Applicant's evidence was that he considered that the Respondent had agreed on the basis of a new contract taking effect on 1 July 1996 (under which the hourly rate was almost immediately increased to £6.67 per hour) to pay him the hourly rate of £6.67. After 6 December 1996 when the rate was reduced he did not accept that fact, and then after the letter of 10 March 1997 when the Respondent confirmed the reductions as from 6 December 1996, the Applicant put in his application to the Tribunal in this case. The application is recorded by the Tribunal as being received officially on 10 April 1997. The Tribunal notes however that the application is actually dated 18 January 1997 a fact supporting the Applicant's contention that he had understood that his rate was £6.67 per hour and that he had not accepted the variation to £5.25 per hour. On the evidence before it the Tribunal finds that in fact the parties had entered into an individual contract specific to the Applicant as from 1 July 1996 on the basis of £6.67 per hour i.e. that although the Applicant was not transferred under TUPE, he was to be treated in like fashion to his fellow workers who had so transferred. Accordingly, the Tribunal find that the Respondent unilaterally varied his contract of employment without his consent which constitutes an illegal deduction of wages. Therefore the Applicant should be paid at the rate of £6.67 per hour until his final date of retirement on 24 December 1997."
The first ground of appeal is that the Tribunal failed to deal adequately or at all with the argument advanced by the respondent employer to the effect that the employee by accepting the reduction in his hourly rate imposed in December 1996 without protest either to the Respondent or otherwise until his application to an Industrial Tribunal of 10 April 1997, had acquiesced in the variation to his contract, and have erred in taking it into account that an application completed on 18 January but not communicated to the Respondent can be taken as evidence of his having protested at the change.Industrial Tribunal Decisions are not to be formalistic legalistic documents which set out every conceivable issue that can be raised. We consider taking a robust view of that paragraph, there is no misdirection in law. The Tribunal accept that he did not accept the fact of the reduction. It was only as late as 10 March 1997 as the Tribunal advert, to not only in paragraph 5 (which we have quoted) but also in paragraph 4, that the Applicant had it in writing; he thereafter moved with commendable swiftness to present his application. We do not see why the Tribunal are not entitled to take into account the fact that the Originating Application was drafted on 18 January 1997 as being of evidential value that the Applicant was not prepared to accept it and was taking appropriate steps. We do not think he is to be criticised for waiting until he had it in writing.The Industrial Tribunal was perfectly entitled to take judicial notice of the fact that in many areas of life people want to see something in black and white before they take any appropriate action. We therefore do not consider there is an arguable ground here. This is a case of combing through a decision to see if some minor misdirection can be rescued from the entrails of a case that has been lost. In our view that is not an appropriate response. We do not consider an arguable case exists in law to go before a full Tribunal.The second argument is an extremely ingenious one. It has a degree of attractiveness, but with hindsight we have come to the view that this attractiveness is spurious and it would, if raising an arguable issue, bring the law to a total utter mockery.What the ground of appeal says is:"In any event, the Tribunal has further erred in calculating arrears of wages down to the 24th December 1997 on the basis of a complaint issued on the 10th April 1997, the latter being the date down to which the calculation is properly performable".What Mr Brabbins has argued, with a degree of attractiveness, which is in inverse proportion to the merits of the argument is that under paragraph 23 (1)of the Employment Rights Act 1996 , it is said:
"(1) A worker may present a complaint to an industrial tribunal - (a) that his employer has made a deduction from his wages in contravention of section 13 [that is the material part]. "
What Mr Brabbins' argument is that an employee cannot make an application before there has been a deduction. He goes on to submit that a Tribunal can only make an award for what had happened before the Originating Application. That is (with great respect) an attractive argument, but we think it is a spurious one. If you look at section 24 of the Employment Rights Act, Determination of complaints, it goes on to say this:
"Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer [paragraph 8] (a) in the case of a complaint under section 23 (1) (a), to pay to the worker the amount of any deduction made in contravention of section 13."
The logic of Mr Brabbins' argument on grounds 1 and 2 would be simply this. "If you did not present your Originating Application in a couple of weeks of the deduction, you will be held to affirm the contract and each separate time the employer went on not deducting the wages which you claimed, you would have to put in another Originating Application". The merry-go-round would never stop. We accept that an employee cannot put in an application before a deduction has been made. Once the deduction has been made the Tribunal has jurisdiction to deal with the continued unauthorised deductions up until the time of the Tribunal hearing.The Tribunal did not conclude the case until 1 April 1998, by which time deductions had taken place and it was entitled to deal with the history, not only up to the time of the Originating Application but up to the time of this hearing.This brings us to the third point in the grounds of appeal, which Mr Brabbins has had the good grace and sense to realise, is totally unarguable since the decision, in terms, states that it is for wages less the appropriate National Insurance and tax. We have come to the view that there is no arguable point and we dismiss the appeal.

Judge D Pugsley

EAT/1012/98/MAA

I have printed a second draft just to make sure the amendments I've made are correct.

Iris