McPartland v. Pybus [1999] UKEAT 170_99_1105

EAT

McPartland v. Pybus

[1999] UKEAT 170_99_1105 · 1999-05-11

JUDGE PETER CLARK:

The principal issue in this case is whether the Applicant, Miss McPartland was unfairly dismissed by the Respondent solicitors, by whom she was employed from November 1997 until 21st August 1998, for asserting a statutory right, contrary to Section 104 of the Employment Rights Act 1996. An Employment Tribunal sitting at Liverpool on 23rd November 1998 dismissed that claim. Against that decision promulgated with extended reasons on 10th December 1998 the Applicant now appeals. The Tribunal went on to find that the Respondent had made an unauthorised deduction from wages amounting to £15 and awarded her that amount. Her claim for "ordinary unfair dismissal" (not being for an inadmissible reason) was adjourned pending the outcome of the Seymour-Smith litigation.

The critical findings by the Tribunal were that by letter dated 7th August the Respondent's principal, Mr Pybus wrote to the Appellant informing her that from 3rd August her pay would be reduced from £5 to £3.50 per hour. The Appellant took advice and replied to Mr Pybus by letter dated 12th August which read as follows:

"Dear Mr Pybus

RE: TERMS OF MY EMPLOYMENT

I am writing to inform you that I do not accept the proposed changes to my terms and conditions of employment.

Under the law, an employer has a duty not to make changes to a worker's terms and conditions without the worker's agreement. Changes that are made unilaterally by the employer which are not agreed by the worker constitute a breach of contract.

Since pay and hours of work are fundamental terms of a contract, unilateral changes to these are likely to be classed as a fundamental breach of contract, and any resulting cut in pay therefore, is an illegal deduction of wages under the Employment Rights Act 1996.

Workers who assert their rights under the 1996 Act are automatically protected against Unfair Dismissal irrespective of their length of service of hours of work.

I trust that this letter clarifies my position.

I look forward to receiving my usual wage of Friday. If I do not receive the money due to me within 14 days, I will start legal action to pursue this claim."

That letter was faxed to Mr Pybus who, at the time, was abroad. He faxed the Appellant a reply dated 14th August which incorrectly, the Tribunal found, stated that she was then under notice. It said:

"I now have your written response and it is clear that, regrettably, we are not going to reach a satisfactory conclusion. Your notice is extended to conclude on Friday 21st August 1998."

The Tribunal found that for the week ending 14th August the Appellant was paid £15 short. They also accepted that the reason for the Appellant's dismissal was her letter dated 12th August. The narrow point was whether, by that letter, the Appellant there alleged that the Employer had infringed a right of hers which is a relevant statutory right under Section 104(1)(b) of the 1996 Act. The Tribunal found that she had not. The letter refers to proposed changes to her terms and conditions, not that the Employer had infringed a relevant right. They dismissed the complaint of automatically unfair dismissal under Section 104.

We have been asked to consider written representations, prepared on her behalf by her solicitors. That we have done. The Appellant seeks to rely on the decision of the Court of Appeal in Menell -v- Newell & Wright [1997} IRLR 519, and in particular, this passage from the Judgment of Lord Justice Mummery at para 28.

"[Section 104] is not confined to cases where a statutory right has actually been infringed. It is sufficient if the employee has alleged that the employer has infringed the statutory right and that the making of that allegation was the principal reason for dismissal. The allegation need not be specific provided it was made reasonably clear to the employer what was claimed to be infringed. The allegation need not be correct either as to the entitlement of the right or as to its infringement provided that the claim was made in good faith.

The important point is that the employee must have made an allegation of the kind protected by [Section 104]. If he did not the making of the allegation could not have been the reason for dismissal."

Based on that statement of law it is submitted that the letter of 12th August is sufficiently clear to bring the Appellant within the protection envisaged by the Court in Menell -v- Newell & Wright. If it is said correctly that the allegations do not have to be specific, only reasonably clear. A reduction in pay had been communicated to the Applicant in writing in this case and her response referred to a cut in pay and referred to her rights under the 1996 Act. It is finally submitted that the fact that the money had not, at that time, been deducted is irrelevant as Menell points out and it is argued that a finding of unfair dismissal for asserting a statutory right should be substituted for the decision of the Tribunal below.

We are unable to accept that submission. The allegation must relate to an infringement of a statutory right which has taken place. It matters not whether the allegation is correct in the sense that there has been an unauthorised deduction or that the Employee was entitled to complain that there had been an unauthorised deduction. The key to the right under Section 104 is that there had been an infringement before the allegation is made. In this case, it is quite clear that the infringement, that is, the unauthorised deduction, did not take place until the 14th August. The allegation that was made in the letter of 12th August related to a prospective deduction and to an anticipatory breach of contract. That is insufficient, in our judgment, for the purpose of Section 104 of the Act. The Employment Tribunal's analysis was correct as a matter of law. In these circumstances, the appeal must be dismissed.