HUGH CONWAY v COMMS PEOPLE LIMITED [2003] UKEAT 388_01_2901

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 388_01_2901Case No Appeal No. EAT/388/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HUGH CONWAYAPPELLANTCOMMS PEOPLE LIMITEDRESPONDENT
Before
His Honour Judge J McMullenDate 29 January 2003
[1]APPEARANCES For the Appellant MS S COWEN (of Counsel) Instructed by: Messrs Browne Jacobson Aldwych House 81 Aldwych London WC2B 4HN For the Respondent MS N ELLENBOGEN (of Counsel) Instructed by: Messrs Pritchard Englefield Solicitors 14 New Street London EC2M 4TR HIS HONOUR JUDGE J McMULLEN QC This case is about unlawful deductions from pay, breach of contract, and an employer's claim for breach of contract. We will continue to refer to the parties as Applicant and Respondent. This case was brought by the Applicant in those proceedings against a Reserved Decision of an Employment Tribunal sitting at London Central on 23 October and 28 November 2000, promulgated with Extended Reasons on 25 January 2001. The Applicant was represented by a solicitor and today by Ms Cowen, the Respondent was represented, there and here, by Ms Ellenbogen both of Counsel.[2]The Applicant claimed that an unlawful deduction had been made from his pay, contrary to section 13 of the Employment Rights Act 1996 ; that that constituted a breach of contract; and that he was entitled to treat it as a fundamental breach, going to the root of the contract, and claim wrongful dismissal. The Respondent denied the above breaches and made a claim, which we will call a counterclaim, pursuant to the Employment Tribunals Extension of Jurisdiction Order 1994, Article 4, for damages as a result of the Applicant's leaving his employment without notice.[3]The issues before the Employment Tribunal were to determine whether an unlawful deduction had been made, and if so, whether it constituted a fundamental breach of contract, and if not, whether the Respondent's claim for damages should be upheld.[4]The Tribunal dismissed both the Applicant's claims and upheld the Respondent's counterclaim, ordering the Applicant to pay it £7890.73. It dismissed the Respondent's application for costs. The Applicant appeals against the two findings against him on grounds set out in an amended Notice of Appeal, dated 18 October 2002. The Respondent does not appeal the refusal of a costs Order.[5]The basis of the appeal is that the Tribunal misdirected itself on section 13 of the Employment Rights Act and its relationship to the Social Security Contributions and Benefits Act 1992 ; and erred in failing to hold that the alleged deductions did not constitute a repudiatory breach of contract entitling him to resign; and that the Tribunal had wrongly upheld the Respondent's counterclaim on the basis that there was no evidence to substantiate its claim to have lost money as a result of the Applicant's conduct. It was contended that the Decision of the Tribunal was perverse; it was submitted that the EAT should reverse the findings of the Employment Tribunal.[6]The Appeal came before a division of the EAT, presided over by Mr Recorder Underhill QC on 5 September 2001. At that preliminary hearing, no ground of appeal was ruled out, although considerable reshaping was required since, as Mr Underhill put it:
" the issues …..hardly leap from the page"
[7]The claim for unlawful deductions and breach of contract were allowed to go forward, having regard in particular to the Social Security Contributions and Benefits Act 1992 . Secondly, the Applicant's contention relating to the Respondent's counterclaim was considered to be arguable, but further clarification should be sought through directions to the Chairman, that he produce his notes relating to what had been said about the loss. Unusually, a representative of the Respondent had appeared at the preliminary hearing and it is clear that the EAT was alert to the possibility that some of the points raised might fall foul of the rule against the introduction of new points, set out in Kumchyk -v- Derby City Council [1978] ICR 1116 EAT Arnold J.[8]There then followed two further directions to the Chairman, interspersed with three responses from him. The Chairman gave very full answers to the questions directed to him. The Recorder thanked the Chairman for the extreme care he had taken, and so do we. Sadly, the Applicant's solicitors were dissatisfied with the responses at each stage and the Applicant has put in his own version, together with a note from the Respondent's solicitors. This process held back the hearing of the full appeal.[9]By the Employment Tribunals Act 1996 , section 4, cases of this kind "shall be heard" by a Chairman alone, unless the Chairman decides otherwise, having regard to, for example, the likelihood of a dispute of fact occurring, making it desirable for the proceedings to be heard by a Tribunal of three. Appeals from a Chairman alone are heard by a judge alone; section 28(4). The decision to hear this case as an Employment Tribunal of three proved to be well founded, since the lay members, in that Tribunal and in this, have been very effective in understanding the issues relating to the construction of the Applicant's pay. In real terms, the Applicant's claim under the unlawful deductions head is for about £1,300, and for breach of contract is about £25,000. The facts[10]The Applicant is an Information Technology Consultant with his own company. He provides his own services as a contractor to companies such as the Respondent, who provide IT services to their client companies in the UK and abroad; or he provides his services as an employee of companies like the Respondent. The Respondent provides IT consultancy services to Lucent Technologies, a Dutch company resident in Amsterdam.[11]In February 2000 the Applicant and Respondent entered into negotiations with a view to the Applicant becoming an employee of the Respondent under a fixed term contract and providing IT consultancy services as a Project Manager on the Respondent's behalf to Lucent. Another company, Giant, act as payroll agents for the Respondent. Their role is to make contact with prospective employees and advise them on their contracts and on the tax implications, and to administer the payroll.[12]On 21 February 2000, the Applicant entered into a contract of employment for a fixed term from that date to 28 May 2000, to serve as a Project Manager in Holland. He also entered into lawful waivers of the Working Time Regulations and parts of the Employment Rights Act 1996 . So far as is relevant, the clauses of the contract provide as follows:
"3.1 The Employee shall be employed as a consultant of the Company to provide the Services to the Client as described in the Employee Schedule… …. 6.1. The Employee warrants that he: 6.1.1 has read and understood the Employee Schedule …. 8 Remuneration 8.1 The Employee shall keep a time sheet record of the hours spent performing the Services. The time sheet must show the number of hours the Employee has worked each day and be signed by each of the Employee and the Client. A copy of each time sheet must be submitted by the Employee to the Company by the 5 th of the month. …. 8.3 The Company will pay the Employee Basic Pay as specified in the Employee Schedule….The standard working week is 5 working days, comprising a minimum of 40 hours and a maximum of 50. …. 8.4 The Employee shall share in the profits generated from the supply of the Employee's services by way of a Profit Bonus. The profit, for the purpose of calculating the Employee's Profit Bonus, is calculated for each month as follows: Money received by the Company net of VAT for the services of the Employee; Less Expenses of the Employee for the assignment; less The Basic Pay of the Employee; less the aggregate of the Holiday Pay and Illness Accrual of the Employee; less any taxes or costs borne by the Company relating to the Employment of the Employee; less the Company's administration costs and profit. 8.5 The Profit Bonus shall comprise 100% of the profit calculated above. The Profit Bonus shall be paid out monthly in arrears, subject to the submission of time sheets and payment therefor. 8.6 Expenses will be reimbursed to the Employee subject to expense claims being submitted correctly and the Company, at their sole discretion, accepting their validity……. 8.8 The Company shall be entitled to make the necessary legal deductions required by the UK tax and social security authorities and by any foreign tax and social security authorities from the Remuneration. 8.9 The Company will be entitled at any time during the Employment and at its termination to deduct from any payment to the Employee any monies owed to the Company by the Employee. Failure by the Employee to fulfil the terms of the Agreement will entitle the Company to withhold any payments due to the Employee without prejudice to any other rights in law, which the Company may have against the Employee arising out of the breach of this agreement."
By the Employee Schedule, in Appendix B, a notice period, on either side, is provided of four weeks, and then there follows a list. "Basic Pay: NLG 143.18 per day Holiday Pay: NLG 13.22 per day Profit Bonus: NLG 1130.39 per day Illness Accrual NLG 13.22 per day Total Contract Rate NLG 1,300.00 per day"[13]The Tribunal accepted the calculations of a witness, which are attached in a schedule to this judgment, indicating the breakdown and method of calculation of the employee's remuneration. That document proved helpful to the Tribunal and has proved very helpful to our Tribunal. The contract also provided that where there was a conflict between the agreement and the Employee Schedule, the latter prevailed. It was noted in the Employee Schedule that the employee would be responsible for approximately ten Lucent sites.[14]The Tribunal did not find the Applicant to be a credible witness, but that he was evasive and misleading. It preferred the evidence of the Respondent's witnesses, where there was a dispute. We are satisfied that that judgment was not a blanket condemnation, but was fully justified by the Reasons which the Tribunal set out. It was not contended that the Tribunal's judgment fell foul of the rule enunciated in Anya -v- The University of Oxford [2001] ICR 847 at 860 paragraphs 24 - 25, that there should usually be explained in the Reasons a view about the evidence backed up by contemporaneous documents or otherwise.[15]Before and after signing the contract, the Applicant was fully briefed by Giant staff on the implications of his contract. On 11 March 2000, he received his first payment advice and raised numerous queries on it. He was sent an example, in which were included the following:
"1. This is what is being deducted from your Payment: Paye Tax - This is your full UK tax liability and is calculated under standard UK tax legislation National Insurance - Your employee UK National Insurance contributions Employers Costs - Employer's National Insurance contributions….. Deductible Expenses - ….. J. Your net pay figure in guilders is the total payments ……minus all deductions ….. …. Under your contract of employment ……you will have UK national insurance (both Employee's and Employer's) deducted from your gross pay, just as if you were running a UK limited company of your own or working through any other Management company. Remember you are only liable for national insurance (Employee's and Employer's) and income tax on the taxable element of your gross pay not on all of your gross pay."
There then follows an algorithm indicating "how your pay is calculated". From the Gross Target Rate Value, which is the Applicant's agreed contract rate multiplied by the number of hours he worked, are deducted expenses and employer's costs. That results in a figure for taxable income, from which are then deducted National Insurance and tax, to provide the Applicant's net pay. The Tribunal described this method as being set out in easy stages.[16]On 21 and 22 March, presentations were made by Giant to employees, indicating precisely how this pay was calculated, and that under the heading of 'Employer's Costs', were all costs borne by the Respondent, relating to the employment of the Applicant, including the employer's National Insurance contributions. Subsequently, Ms Darch said in an e-mail:
"The NI rate for employee contributions is basically 10% of your earnings with a maximum amount payable in a month of £188.10. There is also a 12.2% employers costs which is also deducted from your wages."
[17]On 10 or 11 April, the Applicant received his payment advice which showed a deduction from his pay of Employer's Costs totalling NLG 4262.18. It represented one seventh of his net pay for that period of NLG 28,126, equivalent to £7827. It is that figure of about £1300 which is the subject of this dispute. It represented the employer's NI contributions for March and April. Due to an error, the Respondent had not deducted any figure in respect of this item from the March salary, and corrected it, therefore, in the statement for April (albeit headed March). Ms Darch's schedule, attached to this judgment, provides more detail about the working-through of the figures, provided in that pay advice.[18]The Applicant was clearly offended by this deduction, for on the same day he sent an e-mail to the Respondent, copied to Lucent, which the Tribunal found had caused embarrassment to the Respondent in their relationship with their client. He complained that the Respondent had no legal right to pass on such costs to him and threatened that unless the shortfall was restored to him by close of business, he would regard the Respondent as being in breach of contract, and have no option but to leave.[19]A number of steps were taken to try and resolve this matter, and by that evening, Ms Pilson, of the Respondent's sister company, based in Amsterdam, considered in an e-mail that the Applicant had been unnecessarily rude at a time when the Respondent:
"have endeavoured to assist and appease your numerous demands and arrange for personal tax/legal advice"
She pointed out that she was awaiting feedback from her lawyers, and criticised the Applicant for holding the Respondent and Lucent to ransom by leaving the site mid-project, without notice. She was anxious to resolve the problem, and establish a damage-limitation course of action by ensuring an effective handover of project knowledge. The next day, she urged him to return to site. He did not. It is clear from the exchange of e-mail that Ms Pilson was seeking further advice from her lawyers, and urging the Applicant not to precipitate action in the meantime.[20]On 1 May 2000, the Applicant addressed a concern to the Inland Revenue. On 6 June 2000, he presented his Originating Application to the Employment Tribunal, and on 8 June 2000 he received a reply from the Inland Revenue. The Inland Revenue had contacted the Respondent, had considered the contractual documents and said this:
"That is the formula that your former employer used to calculate the Profit Bonus that you were entitled to receive. It was clearly intended that you should have a share of the profit after the deduction of all employment expenses and costs, including tax and national insurance contributions (NICs)….. As you may know, all employed earners are liable to pay primary Class 1 NICs with their employers liable to pay secondary Class 1 NICs. Whilst your former employer had an obligation to deduct the Class 1 NICs from your earnings the secondary Class 1 NICs are payable in addition to your earnings. Your former employer is not, normally, able to deduct the contribution that it is liable to make from your "earnings"
. For the purposes of the National Insurance legislation "earnings" is the amount of your gross pay for PAYE purposes before any deduction of pension contributions. It would include any profit or remuneration payable to you from your employment. Comms People Ltd would not, therefore, be entitled to deduct any employer's NICs from your contractual arrangement to pay (i.e. basic salary and profit bonus entitlement). This does not, however, prevent your former employer calculating your profit bonus after the deduction of all employment expenses including any employer's national insurance contributions that it was obliged to make. It is clear that the intention behind the Profit Bonus was that you should receive a share of the employer's profits after the deduction of all expenses including tax and national insurance contributions on your remuneration. Your entitlement to the profit bonus was therefore to a sum calculated after NICs had been taken into account. Comms People Ltd were therefore not deducting employers national insurance contributions from your earnings which would not be permissible. Instead they had calculated your Profit Bonus by reference to the available profit, which is permissible. From a personal point of view I feel that had you been given this information prior to you signing your contract then this may well have alleviated the problems that you had encountered."[21]It is plain that this advice from the Inland Revenue corresponds to advice given by Messrs Baker & McKenzie, solicitors to the Respondent on 14 April 2000. The Inland Revenue's letter was the subject of highly critical findings by the Employment Tribunal against the Applicant. He did not produce a copy, and the Tribunal found what he said about it was "misleading and untrue". This is because he alleged that the Inland Revenue were investigating the Respondent. They were not. As we read it, the Inland Revenue supports the Respondent's position in this case. Notwithstanding that, the Applicant should have produced it to the Tribunal, and its criticisms were well-founded.[22]The Tribunal found that it was clear from an analysis of the contractual clauses 8.4 and 8.8 that the employer's costs were deductible before arriving at the Applicant's profit bonus. It found that he was looking for an excuse to leave his employment without giving his four weeks' notice and it was unreasonable of him to give an ultimatum to terminate his employment without notice by close of business the same day. He ignored management's assurance that he would be reimbursed the sum if the deduction had been shown to be made in error. The Applicant exploited the fact that no deduction had been made from the payment advice in March 2000, in error. He had not been wrongfully or constructively unfairly dismissed. It went on to find that the Respondent suffered loss by reason of the Applicant's breach of contract and unreasonable conduct in terminating the contract without proper notice. It held that even if there were an unlawful deduction, the Applicant's conduct was totally unnecessary. It declined to award costs to the Respondent. The legislation[23]The Employment Rights Act 1996 provides at 13(1):
"(1) 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. … (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."
There are a number of excepted deductions under section 14 which do not apply here.[24]Section 6 of the Social Security Contributions and Benefits Act 1992 provides for primary and secondary class I contributions to be paid on relevant earnings. Schedule 1 paragraph 3A, as inserted by the Child Support, Pensions and Social Security Act 2000 section 77(2) provides as follows:
"3A (1) …..a person who is or has been liable to pay any secondary Class 1A or Class 1B contributions shall not - (a) make, from earnings paid by him, any deduction in respect of any such contributions from which he or any other person is or has been liable; (b) otherwise recover any such contributions (directly or indirectly) from any person who is or has been a relevant earner; or (c) enter into any agreement with any person for the making of any such deduction or otherwise for the purpose of so recovering any such contributions."
The effect of that is to debar an employer from deducting from an employee's wages, directly or indirectly, any sum which is attributable to the employer's obligation to make primary Class 1 contributions. The only deduction therefor is in respect of the employee's contribution, i.e. the secondary contribution.[25]It is apparent from the EAT's judgment on the preliminary hearing that this paragraph was cited by Counsel and relied on. It is the subject of the exchanges between the EAT and the Chairman. The Chairman robustly denies that this statute was cited to the Tribunal. The Chairman reported that no argument based on illegality or on the statute had been addressed to the Tribunal. The sole issue was a breach of section 13 ERA or a breach of contract in doing the same thing. To make a deduction for employers' NICs would be a breach of section 13 and it is for that reason that Ms Ellenbogen contends that the 1992 Act has been raised in the EAT for the first time. As such a new point, following Kumchyk (above), we should refuse to hear it.[26]We decided to hear argument on the point before deciding whether it should be allowed to be considered. In our judgment, this is a new point and should not be raised at the EAT. Kumchyk principles apply. We reject the contention that the point is so obvious that the Chairman should have introduced it himself: Mensah -v- East Hertfordshire NHS Trust [1998] IRLR 531 CA at paragraph 36 per Sir Christopher Slade. If we are wrong, we would hold that the Act has no application to the present case.[27]We accept the correctness of the Tribunal's calculations, drawing as it does from a witness of fact who was accepted to be credible, as contrasted with the Applicant. We have ourselves worked through the figures provided in her schedule. It is plain that the Applicant has not had employer's NICs deducted from wages that were properly due to him, pursuant to the Employment Rights Act section 13. The contractual provisions are clear. In truth, employers' NICs are relevant to the relationship between the Applicant and the Respondent. This is because it justifiably regards these as part of the costs of deploying the Applicant to work in Amsterdam. It is not obliged to give a profit bonus; if it does, it is not obliged to say how much profit from his work is retained by the Respondent and how much is to be given to him. It is not obliged to say how it determines what the profit bonus will be. In this case, the Respondent works out its profits, it then decides how much of that profit it wishes to keep and gives the rest to the Applicant. In a sense, the Applicant is right in that employers' NICs have played a part in the determination of his wages. But then it does in every calculation of a worker's wage. All employers work out what their on-costs are in determining what they will pay their employees. The Applicant could not object if, having calculated its costs, the Respondent decided to give half of its profits away to charity, thus reducing the profit bonus coming to him.[28]We accept that the communication from Ms Darch and some of the written communications relating to this matter indicate a breach of section 13 ERA , or an unlawful deduction, contrary to the 1992 Act. But having worked through these calculations we are satisfied that there has been no deduction attributable to employers' NIC from what is properly due to the Applicant. We agree with the way in which the Inland Revenue have expressed it: if from the wages that were properly due to him there had been a further deduction in respect of employers' NIC, that would be unlawful. We know that the Respondent and Giant took steps to explain to the Applicant and others how their remuneration was made up. It obviously did not do enough, since the position has taken some time to explain to the Employment Tribunal and to us. Certainly, the clear language of Ms Darch's e-mail might point to the opposite conclusion.[29]It follows that the Respondent did not breach the Applicant's contract either. He was paid according to the terms of it. It also follows that he was not entitled to resign, claiming repudiation by the Respondent of the contract of employment. In many cases, a deduction which is not justified will constitute a fundamental breach: Cantor Fitzgerald International -v- Callaghan & Others [1999] ICR 639 , but in that case there was a deliberate refusal to meet a term of the contract, in order to persuade the workers to work harder. In the instant case, there was a determination by management to carry out what it had been advised was a lawful contract. Even when alerted to the Applicant's perspective, the Respondent's attitude was conciliatory: it was seeking legal advice and offered to indemnify him if he was correct. In our judgment, this did not evince an intention by the Respondent to tear up the contract and the Applicant was not justified in treating it as a reason for leaving. We therefore uphold the Tribunal's Decision when it rejected the Applicant's claim of wrongful dismissal. The counterclaim[30]The Applicant appealed the Tribunal's finding on the counterclaim contending that there was no evidence before the Tribunal upon which it could properly have found that the loss claimed by the Respondent had been sustained by it or, alternatively, was recoverable by it. The main aspect of the claim is that such loss as the Respondent brought before the Tribunal was not sustained by it, but by its sister company, Comms People BV. It is, however, clear that the amended counterclaim was for the loss of profits sustained by the Respondent as a result of the fact that the Applicant had walked off site without prior notice, precluding an effective hand-over to an alternative employee.[31]In our judgment, the "wrong employer" argument is misconceived. Although no document was put before the Tribunal indicating a contract between the Respondent and Lucent, the Tribunal made many findings about the relationship between the Respondent and Lucent as being its client, and it will be recalled that the schedule attached to this judgment indicates money received from the client, that is Lucent, coming to the Respondent. It is obvious that the Respondent had a relationship with Lucent by way of a commercial enterprise, from which, by deploying the Applicant to work for Lucent, it obtained NLG 71800 per day. The Tribunal plainly found that the Respondent had suffered a loss as a result of the Applicant's breach of contract. It ordered the sum of £7890.73 as compensation. It has also been noted by clause 6.1.5 of the contract the employee warranty, that he:
"will fully and effectively indemnify the Company against any and all losses arising out of the action or inaction of the Employee"
We are satisfied there was ample evidence before the Employment Tribunal to reach its conclusion.[32]Yet in any event, this issue is a new point and falls foul of the Kumchyk principles. The sole basis upon which the counterclaim had been challenged before the Employment Tribunal was that the Applicant had not been acting in breach of contract when he walked off site. Thus, the Applicant did not seek to cross-examine on the losses claimed by the Respondent. We hold that this matter had not been the subject of a dispute before the Employment Tribunal, and the Applicant is not entitled to open it before us: Jones -v- Governing Body of Burdett Coutts School [1998] IRLR 521 CA . As Lord Justice Robert Walker pointed out, opening a point conceded below is not a procedural matter, but represents a legal principle. Finality of litigation requires a robust response to any such attempt. Costs[33]Before knowing our decision, Ms Ellenbogen flagged up that if she were successful, she would wish, on behalf of her client, to consider making an application for costs. In case it helps, we would not consider it unreasonable conduct to pursue the appeal, given the finding by the EAT at a Preliminary Hearing, and the three rounds of exchanges between the EAT and the ET Chairman. Albeit some of these exchanges were provoked by the Applicant's new solicitors' letters, the substance of those letters was adopted by the EAT in that the Recorder sought further material from the Chairman. We have not heard submissions from either party, and Ms Ellenbogen may have other aspects of the conduct of the proceedings in mind. We note that at the outset, she indicated she wished to raise some points about the preparation for the appeal. She has fourteen days to do so. HUGH CONWAY-V- COMMS PEOPLE LIMITED METHOD OF CALCULATION OF NET PAY OF HUGH CONW AY FOR MARCH 20 NLG Money received from Client 1,800 x 25 days worked 45,000.00 Less Company's Admin and costs & Profit- 500 x 25 days (12.500.00) Equals total Contract Rate due 1,300 x 25 days worked 32,500.00 Less Basic Pay of Employee -143.18 x 25 days ( 3,579.50) Less aggregate of Holiday Pay and Illness Accrual 13.22 + 13.22 = 26.44 x 25 days ( 661.00) Equals gross Profit Bonus 28,259.50 Less any costs and taxes borne by the Company (Employers costs) ( 4,262.18) Less Expenses of Employee for Assignment (14,648.43) Net Profit Bonus 9,348.89 Add Basic Pay 3,579.50 Add Holiday Pay and Illness Accrual 661.00 Add relocation expenses of which are taxable 8.000.00 TAXABLE PAY 21,589.39 Less UK Income Tax ( 4,965.23) Less Employees National Insurance Contributions ( 675.88) PAY AFTER TAX 15,948.28 Add balance of Expenses (relocation already added back) 6.648.43 22,596.71 Add other Expenses ( Billable to Client) 5,529.65 28,126.36 Currency Conversion Rounding ( 0.01) NET PAY 28,126.35