THE INDUSTRIAL TRIBUNALS

CASE REF:	1148/13

CLAIMANT:			Noel Laird

RESPONDENT:		Annesborough Engineering Ltd

DECISION
The decision of the tribunal is that:-

(1)	The title of the respondent is ordered to be amended to:-

Annesborough Engineering Ltd; 

as set out above and Clive Parks is ordered to be dismissed as a respondent from these proceedings.

(2)	The claimant’s claim was out of time but the tribunal decided it was not reasonably practicable to present the claim in time and it was presented within a further reasonable period and the tribunal therefore had jurisdiction to consider and determine the claimant’s claim.

(3)	The tribunal finds and so declares the claimant’s claim against the respondent for unauthorised deductions from his wages is well-founded and orders the respondent to pay to the claimant the sum of £2,964.44, being the amount of the said deductions.

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Drennan QC
Appearances:
The claimant appeared in person and was not represented.
The respondent did not appear and was not represented.

Reasons

1.1	The claimant presented to the tribunal on 13 June 2013 a claim for unauthorised deduction of wages and/or breach of contract in relation to arrears of pay and/or holiday pay and/or notice pay, which the respondent had failed to pay to him.  The respondent did not present a response to the tribunal and did not appear at the hearing of this matter.  Having considered the claimant’s P45, dated 23 January 2013, I ordered that the title of the respondent be amended to:-

Annesborough Engineering Ltd;

as set out above and I further ordered that Clive Parks, who is the owner of the respondent, to be dismissed as a respondent from these proceedings.

2.1	The claimant gave oral evidence.  In light of the foregoing, I made the following findings of fact, as set out in the following sub-paragraphs.

2.2	The claimant was born on 19 December 1967.  For over 26 years, approximately, he worked as a welder/fabricator for the respondent.  He was one of the longest, if not the longest, serving employee of the respondent.  At all times he had a very good relationship with Clive Parks, the owner of the respondent, who, as he stated, in evidence, was a ‘churchgoing person’ and whose word he trusted.

2.3	In or about 2012, the respondent was in financial difficulties due to a lack of work, and, in particular, it had a cash flow problem due to the failure of a customer of the respondent in Dubai to pay the respondent for a considerable amount for work done by the respondent.  The claimant, who at that time was earning £370.50 gross per week and £296.44 net per week, was not paid his weekly wages for the eight weeks prior to 18 January 2013.  On that date the claimant reluctantly terminated his employment, with the respondent, as he had obtained an offer of alternative employment, which he felt he had to accept in the circumstances.  The claimant accepted that, having terminated his employment with the respondent, he was not entitled to obtain any notice pay.  In addition to the said eight weeks’ wages which the respondent failed to pay to the claimant in the said period, the respondent also failed to pay to the claimant his week’s holiday pay at Christmas 2012.  In addition, the claimant, when he originally commenced employment with the respondent worked a ‘lying week’, which he was entitled to be paid for on the termination of his employment.  

2.4	In light of the decision, as set out above, it was not necessary to further consider and determine the claimant’s alternative claim of breach of contract.  

Relevant law

3.1	The Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), insofar as relevant and material provides as follows:-

	“(i)	Article 45 –

(1)	An employer shall not make a deduction from wages if 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;

(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 employer paid 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 purpose of this Part as a deduction made by the employer from the worker’s wages on that occasion.”

In the case of Delaney  v  Staples [1991] ICR 331, it was held that:-

“Wages which are properly payable but not paid are to be treated, to the extent of the non-payment, as within the scope of the expression ‘deduction’.”

(ii)	Article 55 –

(1)	A worker may present a complaint to an industrial tribunal –

(a)	that his employer had made a deduction from his wages in contravention of Article 45.

…

(2)	Subject to Paragraph (4) an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of three months beginning with –

(a)	in a case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made;

…

(3)	Where a complaint is brought under this Article in respect of –

(a)	a series of deductions or payments;

…

The references in Paragraph (2) to the deduction … or to the payment or to the last deduction or payment … in the series or to the last of the payments so received.

(4)	Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such a further period as the tribunal considers reasonable.

(iii)	Article 59 –

(1)	In this Part ‘wages’, in relation to a worker, means any sums payable to the worker in connection with his employment, including –

(a)	any fee, bonus, commission, holiday pay or other remuneration referable to his employment, whether payable under his contract or otherwise.

(iv)	Article 3(1) –

(1)	In this Order ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

…

(3)	In this Order, ‘worker’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a)	a contract of employment, or

(b)	any other contract, whether express or implied and, if it is express, whether oral or in writing, whereby the individual undertakes to do or to perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

… .

4.1	In the light of the facts, as found by me, on the evidence, as set out above, I am satisfied at all times material to this action the claimant was employed by the respondent and was therefore a worker for the purposes of these proceedings, as defined in Article 3 of the 1996 Order.

Further, I am satisfied that the respondent failed to pay to the claimant wages for the said period of eight weeks prior to the termination of his employment on 18 January 2013, which said series of deductions from his wages were properly due to him for work done during the said period, together with the eight day Christmas period, together with one further week’s pay in relation to the ‘lying week’ which he worked at the commencement of his employment and for which he was entitled to be paid at the termination of his employment.  I am therefore satisfied that the respondent failed to pay to the claimant one week’s wages, which were properly due to him, amounting to £2,964.44 (10 x £296.44).

5.1	In a case of Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398, the Employment Appeal Tribunal held as a matter of law, it is only when a employer fails to pay a sum due by way of remuneration at the ‘appropriate time’ that a claim for unlawful deduction can arise; and the ‘appropriate time’ is the contractual time for payment and not the time when payment in practice is made.  In the circumstances, I am satisfied that the outstanding wages should have been paid by the respondent at the date of termination of the contract, namely 18 January 2013, and therefore the claimant’s claim was out of time and it was necessary for him to apply for an extension of time, pursuant to Article 55(4) of the 1996 Order, as set out above.  The statutory test in Article 55(4) of the 1996 Order involves two distinct questions:-

		“(a)	was it reasonably practicable to present the complaint in time, 

(b)	if it was not, did the claimant bring the complaint within a further reasonable period?”

It has long been established it is for the claimant to prove that it was not reasonably practicable to bring the claim in time and it is a question of fact for the tribunal to decide.

In Palmer & Saunders  v  Southend-on-Sea Borough Council [1984] IRLR 119 May LJ stated, at Paragraph 125:-

“To construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view too favourable to the employee.  On the other hand ‘reasonably practicable’ means more than what is reasonably capable physically of being done … In the context in which the words are used in the 1978 Consolidation Act, however inaptly as we think, they mean something between the two.  Perhaps to read the word practicable as the equivalent of ‘feasible’ … and to ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?’ – is the best approach to the correct application of the relevant sub-section.”

May LJ, in the course of his judgment set out a number of relevant factors but emphasised they could not be exhaustive, but stated they should form an useful starting point and therefore the tribunal should consider, amongst other things:-

“(a)	the manner in which, and the reason for which, the employee was dismissed, including any internal ‘conciliatory appeal procedure’;

(b)	the substantial cause of the employee’s failure to comply with the statutory time-limit; 

(c)	whether he knew he had the right to complain that he had been unfairly dismissed;

(d)	whether there had been any ‘misrepresentation’ about any relevant matter by the employer to the employee;

(e)	whether the employee was advised at any material time and, if so, by whom; the extent of the adviser’s knowledge of the facts of the case and the advice given to the employee.”

5.2	The claimant, in the course of his evidence, acknowledged that, at the date of termination of his employment, he had known of the right to bring a claim to an industrial tribunal, albeit he was not aware of any relevant time-limits; but he had not sought, at any time, following the termination, any advice in relation to relevant time-limits.  The nub of the claimant’s evidence, in relation to why he had not brought proceedings for the outstanding wages due to him from the respondent from 18 January 2013, the date of termination of his employment, until 13 June 2013, was because, in numerous and frequent telephone calls between the claimant and Mr Parks, the owner of the respondent, during the said period, Mr Parks repeatedly assured the claimant that the claimant would be paid, as soon as Mr Parks was paid by a customer in Dubai, who owed the respondent considerable sums of money for work done.  During these telephone calls, Mr Parks would repeatedly state to the claimant that he expected to be paid the following week and he would be in touch with the claimant the next week to do so.  This never occurred and the claimant had to ring Mr Parks again who would respond in the same way.  The claimant accepted the word of Mr Parks, whom he trusted, for the reasons set out previously, and as a consequence, he took no steps to bring proceedings until he realised that, in essence, he was being ‘strung along by Mr Parks’ and in on or about June 2013 the claimant concluded Mr Parks could no longer be trusted and he was never going to be paid and he therefore would have to take steps to bring proceedings.  At this time the claimant also became aware that the respondent had obtained new work and was no longer dependent on receiving monies from the customer in Dubai in order to pay the claimant the outstanding monies due to him.

5.3	In light of the assurances made by Mr Parks to the claimant, as set out above, in relation to when the claimant would be paid, which never were fulfilled, I am satisfied that the respondent deliberately misrepresented the situation to the claimant about when he would be paid and it was therefore not reasonably practicable for the complaint to have been presented before the end of the period of three months from the date of termination of his employment.  (See further Palmer & Saunders  v  Southend-on-Sea Borough Council [1984] IRLR 119 and Marks & Spencer PLc  v  Williams-Ryan [2005] EWCA Civ 470.)  In doing so, I took into account, as I am entitled to do so, the background of the surrounding circumstances and the aim to be achieved (see further Schultz  v  Esso Petroleum Ltd [1999] IRLR 488).  The claimant, who had been an employee of the respondent for a considerable period of time, had a good relationship with Mr Parks, whose word he trusted and was therefore reluctant, for a considerable period, to disbelieve what he was told by Mr Parks and to realise he had to commence proceedings in the tribunal against his former employer, with whom he had worked for such a long time.  Clearly given the pattern of assurances, which remained unfulfilled, the claimant could not have held off bringing proceedings indefinitely.  However, I think he waited for a reasonable period of time, in the circumstances, from 18 January 2013 until early June 2013.  He then immediately brought proceedings, as soon as he realised, at that time, that Mr Parks’ repeated assurances he would be paid were of no use or value and he would not be paid without bringing proceedings in the tribunal.  

5.4	I therefore decided that time should be extended to 13 June 2013 and the tribunal has jurisdiction to determine the claimant’s claim.  By failing to pay to the claimant the sums properly due to him, as set out above, the respondent made unauthorised deductions from his wages, for the purposes of Article 45 of the 1996 Order.

6.1	The tribunal finds, and so declares, the claimant’s claim against the respondent for unauthorised deduction from his wages is well-founded and orders the respondent to pay to the claimant the sum of £2,964.44, being the amount of the said deductions.  In view of my decision, it was not necessary for me to determine the claimant’s alternative claim of breach of contract.

7.1	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	6 August 2013; and
9 August 2013, Belfast

Date decision recorded in register and issued to parties: