Appeal No. UKEAT/0659/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2003

Before
HIS HONOUR JUDGE J MCMULLEN QC
(SITTING ALONE)

MRS P WATTS AND THE REPRESENTATIVES
 OF THE TEN GABLES NURSING HOME	APPELLANTS

MISS R J WITHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	NO APPEARANCE. WRITTEN REPRESENTATIONS BY OR ON BEHALF OF APPELLANTS	
For the Respondent	NO APPEARANCE. WRITTEN REPRESENTATIONS BY OR ON BEHALF OF THE RESPONDENT	

HIS HONOUR JUDGE J MCMULLEN QC

1	I refer to the parties here as Applicant and Respondent.  This is an appeal by the Respondent against the decision of Mr P Hildebrand, an Employment Tribunal Chairman sitting at Leeds on 29 May 2003 registered with extended reasons on 23 June 2003.  Neither party attended there or here; both are content to rely on written representations.

2	The Chairman ordered the Respondent to pay the Applicant £100 gross in respect of an unlawful deduction of wages.  The Respondent appealed against that decision in a Notice of Appeal which says as follows:

“The amount not paid was in accordance with the pre-estimate for not giving the required period of notice …. that the decision of the Employment Tribunal should be subject to this appeal”

The Facts

3	The Applicant was employed by the Respondent pursuant to an oral contract entered into on 27 March 2003.  She worked five days for 20 hours at a rate of £100 a week.  She then left to take up other employment.  She asked for her money owed to be sent to her, it was not.  The Respondent contended that she was bound to give one month’s notice.  The Chairman found there was no written contract and there was no contractual term as to the payment of notice.  The Applicant in her originating application and in her written submissions had made it clear as follows.  “At interview the Respondent told me that we got paid weekly but she required one month’s notice.  No contract was signed”.

4	The Respondent contended that she had not made any unlawful deductions.  

“ Wages have to be deducted for payments actually due for the hours actually worked since the claimant left without giving any notice whatsoever as required by her contract of employment the money she is claiming relate to the period of notice not actually worked that is to say the one month of notice which would be actually worked”.
	
5	This document is part of the written submissions which follow what are described as without prejudice pleadings in the Employment Tribunal.  That is misconceived for the documents are openly available.

6	On appeal it is contended that the Chairman misconstrued the law.  The law is contained in Part 2 of the Employment Rights Act 1996 dealing with protection of wages which provides as follows:

13(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 that making of the deduction
(2)	In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised –
(a)	in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or
(b)	in one or more terms of the contract (whether express or implied and if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.
(3)	Where the total amount of wages paid on any occasion by an employee 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”.

7	Failure to make such a payment, or deduction of a payment due is actionable in the Employment Tribunal.  It is to be noted that that is a separate provision from the right set up by Employment Tribunals Act Section 3(2) to make a claim for breach of contract, brought into operation by the Employment Tribunals Extension of Jurisdiction Order 1994.  This enables certain claims to be brought by employees and (only in response to such a claim) by employers, by what is known generally as an employer’s counter claim.

8	The first issue in this case is to decide the nature of the claim. I have no doubt that the Applicant was claiming under part 2 of the Employment Rights Act 1996 and that is precisely how it was treated.  The words “unlawful deduction” are used by the Respondent.  That is how the Tribunal Chairman decided the matter.

9	Thus in the absence of any written authority for the Respondent to make a deduction in the contract of employment, any deduction is unauthorised by section 13 (1) and (2).  That is a complete answer to this case whatever the relationship in contract between the parties.  This claim was made under the statute. In the absence of written authority to make a deduction of a £100 on account of advance notice pay, there will be a breach.  Thus I will uphold the decision of Employment Tribunal Chairman and dismiss the appeal. 

10	I will add this since the Respondent indicates previous EAT proceedings.  The Respondent has been involved in legal proceedings at the EAT on a number of occasions as an Appellant but the only judgment I can find today is an Appeal Employment Appeal Tribunal EAT/1412/00 a judgment given by Mr Justice Hooper at the preliminary hearing indicating that a claim made by a worker for unpaid wages of one week should go to a full hearing.  It was contended that there was not a proper notice of the ET hearing where an award was made.  I understand that at least one other claim of the Respondent has been struck out.

11	As part of the documentation given to me there is a contract of employment.  This of course cannot affect my judgment since the Chairman found no written contract was agreed between the parties.  But it does seem to me that there may be an inherent fault in the Respondent’s claim that there was an agreement that the Applicant would pay one month’s notice.

12	Nevertheless, since I have held that this claim was not brought under the Extension of Jurisdiction Order, but under part 2 Employment Rights Act 1996, what I said above it does not matter.  The appeal is dismissed.  There will be a transcript.