Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2688/14

 

 

 

CLAIMANT:                      Ryan Pickering

 

 

RESPONDENT:                T and T Electrical Services NI Ltd

                                       

 

 

DECISION

 

The claimant is a worker under Article 3(3) of the Employment Rights (NI) Order 1996 and is entitled to the sum of £518 in respect of unpaid wages.  The respondent is ordered to pay the claimant the sum of £518 in respect of unauthorised deductions from wages.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge McCaffrey

 

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent was represented by Ms Marie-Claire Campbell, Barrister-at-Law instructed by Mallon and McCormick Solicitors.

 

 

 

BACKGROUND

 

1.       This was a case which came to hearing having been poorly prepared by both parties.  In spite of the fact that clear directions had been given in relation to production and exchange of information at a Case Management Discussion in March 2015, the claimant first of all had failed to provide copies of bank statements on which he intended to rely to the respondent’s representatives.  An affidavit was produced from the solicitor he had consulted, stating that the bank statements had been left at the solicitor’s office and had been misplaced in the office.  Duplicate bank statements had only been obtained by the claimant a day or so before the hearing.

 

2.       The respondent’s representative attended on the morning of the hearing and promptly asked for time to speak to her client who she said had travelled from Belgium for the hearing.  She did not make it clear whether her client had travelled from Belgium that morning, but in any event it was made clear to her that parties and representatives should be at the tribunal in good time to allow for consultation prior to starting their case at 10.00 am.  Subsequently the respondent’s representative asked for a pause in the proceedings to arrange for printing of an emailed statement of payments made to the claimant which had only just been obtained from the respondent’s accountant that morning.  Ms Campbell then asked for time to discuss matters in the hope the parties could narrow the issues.  After all of this delay, the case finally started after an early lunch break at 1.30 pm.

 

3.       Given what is set out below in terms of the nature and extent of this case, I find it extremely surprising that this case could not have been better prepared sooner which may well have avoided a lot of unnecessary time and expense for everyone concerned.

 

THE ISSUES

 

4.       The issues in this case were two-fold.  First of all, the claimant agreed that for tax purposes he was treated as self-employed but asserted nevertheless that he was a worker within the meaning of Article 3(3) of the Employment Rights (Northern Ireland) Order 1996.  The respondent disputed this saying that the claimant was a self-employed contractor and was not entitled to be treated as a worker.

 

5.       Secondly, and significantly from the point of view of the first issue, the claimant alleged that he had suffered unlawful deductions from wages when working as an electrician for the respondent.  He said that he was entitled to payment for the last week when he had worked for the respondent and for two days the following week (10 and 11 September 2014).  It was agreed between the parties that the only amounts outstanding and due to the claimant were his “lying week” and two days the following week.  It was common case that the claimant was paid £10.00 per hour and that the claimant had not been paid for 74 hours’ work.  At its height therefore the claim was worth £740.00.  The respondent deducted tax from the claimant’s pay at the rate of 30% because the claimant had not produced a UTR certificate, so the net amount of the claim was a maximum of £518.00.

 

THE FACTS

 

6.       I heard evidence from both the claimant and from Mr Tony O’Doherty representing the respondent company.  Although on the ET3 it was noted that Mr O’Doherty was the foreman of the respondent company, from his evidence it appeared that he ran the business.  Various documents were also opened to me and on the basis of the evidence given, I make the following findings of relevant facts.

 

7.       The claimant commenced work for the respondent company in April 2013 and worked for them until September 2014.  The claimant is an electrician by trade and the respondent’s business meant that they carried out contracts for electrical work across Europe at various shop and hotel premises.

 

8.       The claimant’s evidence was that there was no written contract between him and the respondent.  His unchallenged evidence, which I accept, was that he had a discussion with the respondent on starting about the hours he would work, his pay, how flights and accommodation worked and “that was it”.  The claimant’s evidence was that he and his colleagues worked from Monday to Friday from 7.00 am to 7.00 pm and on Saturdays from 7.00 am to 3.00 pm or sometimes later to get the work done.  He said, and the respondent agreed, that the respondent decided what work he did and where.  Mr O’Doherty’s evidence was that he was on site, directed the men as to what to do and inspected their work when they were finished.  It was also common case that while the claimant supplied his own hand tools, all power tools, materials and equipment were supplied by the respondent.  The respondent also arranged, booked and paid for the claimant’s flights to the various work locations and covered the cost of his accommodation while he was working for the respondent.  There was a dispute as to whether the respondent was entitled to recoup the cost of accommodation for days when the claimant was not working.  The respondent said that he was, but the claimant disputed this and the respondent’s only evidence was that he had told the claimant that “the company could not pay for him to be lying in bed”.  There was no independent evidence to verify this was a contractual term as there was no written agreement between the respondent and the claimant.  There was no evidence either that any amounts of money had ever been deducted from the claimant’s wages in respect of accommodation, although the respondent asserted that the claimant had been absent from work due to sickness on a number of days.  It was agreed between the parties that the claimant was not paid for days when he did not work due to sickness and he did not have any holiday entitlement.

 

9.       Ms Campbell put it to the claimant that he would have been entitled to send someone to do work in his place, which he disagreed with.  Indeed the respondent also said this would be difficult as the work was “in Europe” and there would be no one there to replace the claimant.  It was put to the claimant that there were no restrictions on him carrying out work for others.  The claimant’s response was that he could have done work for others in his free time or days off, but that would be true for everybody.  Given the hours which the claimant was working for the respondent it would be difficult to see when he would have fitted in additional work, and there was no suggestion that he actually had worked for anyone else while working for the respondent in Germany and Belgium.  It was also put to the claimant that he could leave at any time to which his reply was, “In theory”.  He indicated that when he had first approached the respondent to give notice that he wished to leave he ended up staying longer than he wished to do because the respondent was reluctant to book him a flight home sooner than had been planned. 

 

10.     It was agreed by both parties that the claimant was paid fortnightly and that he was given a monthly statement of his pay headed, “Sub-contractor Monthly Statement”.  This is a statement provided under the Construction Industry Scheme (CIS) which gives the details of the sub-contractor concerned, his national insurance number, the gross amount paid, any amount for materials deducted and the amount of tax deducted.  It was agreed that the claimant had to account for his own national insurance and tax was deducted by the respondent at the rate of 30%, because the claimant had not produced a Unique Tax Payer Reference certificate.  The respondent referred to the information received from his accountant in relation to the amounts paid to the claimant from May 2013 until September 2014 and indicated that there were two occasions in 2013 when there had been an overpayment made because insufficient tax had been deducted from the claimant’s pay.  This information had not been provided to the claimant prior to the hearing so he was unable to agree that too little tax had been deducted because he had not had the opportunity to consider the matter prior to the hearing, which I accept.  The respondent did not clarify why these sums had not been recouped earlier, or whether he had ever contacted the claimant about the alleged overpayment.

 

11.     It was put to the claimant by Ms Campbell that he was a self-employed person running his own business: he disagreed with this, saying that he had used an accountant only once to complete a tax return because he was working under the CIS scheme with the respondent.

 

12.     I also noted that at the Case Management Discussion on 26 March 2015 it was clarified that the only claim to be dealt with by the tribunal at this hearing was a claim of unlawful deductions from wages and the claimant’s claim of breach of contract was formally withdrawn.  At the hearing (although it had not been raised previously), the respondent attempted to raise an issue in relation to a drill which it had supplied to the claimant and for which payment was still outstanding.  The claimant said he had never received an invoice for it.  I made it clear at the hearing that this matter was not something which was before me and could not properly be before me as part of a claim for unlawful deductions from wages.  This was not a matter in relation to wages but was a matter covered potentially by a separate agreement between the claimant and the respondent.  Had the claimant’s claim for breach of contract been pursued, it is possible that the issue of payment for the drill might have been raised by way of counter claim.  However the breach of contract claim was withdrawn and there was no objection to this at the Case Management Discussion.  In my view therefore this matter was not before me and I do not propose to deal with it.

 

THE RELEVANT LAW

 

13.     The relevant law in relation to protection of wages and the right not to suffer unauthorised deductions is set out at Article 45 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  Article 45 provides as follows:-

 

                    “Right not to suffer unauthorised deductions

 

                    45(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.

 

          (2)      In this Article “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 expressed, whether oral 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.

 

                    (c)    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.

 

          (4)      Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him as the gross amount of the wages properly payable by him to the worker on that occasion ...”

 

14.     Article 46 makes it clear that Article 45 does not apply to a deduction from a worker’s wages made by an employer where the purpose of the deduction is a reimbursement to the employer of an overpayment of wages or an overpayment of expenses.  Article 46(3) clarifies that Article 45 does not apply where the deduction from the worker’s wages by the employer is as a result of a statutory provision to deduct and pay over to a public authority amounts determined by the employer as being due to it.  This presumably covers matters such as tax and national insurance which are deducted from employee’s wages.  Ms Campbell advanced the case on behalf of the respondent that the claimant had been overpaid because insufficient tax had been deducted from his wages on two occasions in 2013.  This was not pleaded in the ET3 and appears only to have been raised by the respondent when the printout of payments made to the claimant was received from his accountant on the morning of the hearing. 

 

15.     I invited Ms Campbell to refer me to the appropriate legislative provision of Part IV of the 1996 Order which might authorise me to deduct these alleged overpayments from any amounts due to the claimant, but she was unable to do so.  I have re-read Part IV of the 1996 Order but I am unable to see any provision which would permit me to offset an overpayment made to the claimant from any amount due to him on foot of a claim of unlawful deductions of wages under Article 55 of the 1996 Order.  While it is clear under Article 46 that a deduction from wages to correct an overpayment of wages is not an unauthorised deduction under Article 45, there is nothing in either Article 47 (right not to have to make payments to employer) or Article 55 (complaints to industrial tribunals) which permits the employer to bring a claim before the Industrial Tribunal under the 1996 Order to recover such overpayments once the contractual relationship between employer and worker has ended.  It is important to remember that Industrial Tribunals have only the jurisdiction given them by statute and presumably this matter would therefore fall within the jurisdiction of the County Court or Small Claims Court for civil contractual claims.  It does not-as far as I can see-fall within the jurisdiction of the Industrial Tribunals.  Even if the matter were properly before me and I was satisfied that an overpayment had been made to the claimant, I would have to consider whether such a claim was now out of time, given that the alleged overpayments were made in October and November of 2013.  The claimant had already withdrawn his breach of contract claim, so the issue of the alleged overpayment cannot be dealt with as a counter claim, even if it were properly pleaded, which it was not and even if it were in time, which it is not.  The jurisdiction in relation to breach of contract is limited and the jurisdiction of Industrial Tribunals in relation to counter claims by respondents is limited to cases where a breach of contract claim is before the tribunal. 

 

16.     In this case the claimant and the respondent dispute whether or not the claimant is a “worker” and therefore entitled to bring a claim for unlawful deduction of wages under Article 45 of the 1996 Order.  The definition of a worker for the purposes of the 1996 Order is set out in Article 3(3) of the 1996 Order.  This provides as follows:-

 

                    “3(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 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 individuals; and any reference to a worker’s contract shall be construed accordingly.”

 

17.     There is considerable case law on the issue of how one identifies an employee, a worker or a self-employed person for the purposes of employment legislation.  Only one case was opened to me by Ms Campbell (see below) and I consider it appropriate to set out a brief statement of the law, including the leading authorities.    A contract of employment can be identified by three essential elements which were identified in the seminal judgment in the Readymix Concrete case and were affirmed most recently by the Supreme Court in Autoclencz Ltd v Belcher [2011] UKSC 14, namely the following:

 

(a)            the contract must impose an obligation on a person to provide work personally;

 

(b)            there must be mutuality of obligation between employer and employee; and

 

(c)            the worker must expressly or impliedly agree to be subject to the control of the person to whom he works to a “sufficient” degree.

 

18.     It is only if each of these elements is present that the contract may be a contract of employment.  Whether or not it actually is will depend on an assessment of all the other circumstances which may be taken into account, including the following: whether the individual is employed as part of a business and his work is done as an integral part of that business; whether he provides his own equipment; whether he hires his own helpers; whether he takes a degree of financial risk or he has responsibility for investment and management and so on.

 

19.     The definition of a worker which has been set out above is broader than that of an employee.  In Byrne Brothers (Form Works) Ltd v Laird [2002] IRLR 96, a case which involved the Working Time Regulations, the EAT concluded that labour-only sub-contractors had been correctly identified as workers not withstanding that they had a limited power to send a substitute: the individuals were still under a personal obligation.  Looking at the second part of the definition, the EAT said that the aim was to extend protection to an intermediate class of persons between employees and those carrying on business on their own account.  Although such people are not employees, they are subordinate to the person for whom they work and hence the need for protection.  The EAT commented that consideration of who was a worker would involve the same sorts of factors as are considered in deciding who is an employee “but with the boundary pushed further in the putative worker’s favour”.

 

20.     The leading case on this issue is now Jivraj v Hashwani [2011] UKSC 40.  In that case the Supreme Court held that the correct test is whether the contract provides for services to be rendered by an independent contractor or whether the service provider consents to work under the control of another and is therefore a worker.  The case involved proceedings under the Employment Equality (Religion and Belief) Regulations 2003 which apply in Great Britain and related to the status of an arbitrator.  The Supreme Court said as follows:-

 

                    “There is a clear distinction in European case law between those who are, in substance, employed and those who are independent providers of services who are not in a relationship of subordination with the person who receives the services.  The essential questions are whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, whether he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services.  Those are broad questions which depend upon the circumstances of the particular case and the detailed consideration of the relationship between the parties.

 

                    “There are a number of domestic cases which state that the key question is whether the dominant purpose of the contract is the execution of personal work or labour.  However in the light of European case law, dominant purpose cannot be the sole test, although it may well be relevant in arriving at the correct conclusion on the facts of a particular case.  The focus is on the contract and relationship between the parties rather than exclusively on purpose.  After all, if the dominant purpose of the contract is the execution of personal work, it seems likely that the relationship will be a case in which the person concerned performs services for and under the direction of the other party to the contract in return for remuneration as opposed to an independent provider of services who is not in a relationship of subordination with him or it.  This may not be so however because, although the dominant purpose of the contract may be personal work, it may not be personal work under the direction of the party to the contract.  All will depend upon the application of the principles in the preceding paragraph to the circumstances of a particular case.”

 

          (See the head note of the decision as reported at [2011] IRLR 833 and paragraphs 34 to 39 of the judgment). 

 

          Lord Clarke, giving the leading judgment in Jivraj, also referred to the decision of Elias J in the Employment Appeal Tribunal in James v Redcat (Brands) Ltd [2007] IRLR 296.  The EAT held that one had to draw a careful distinction between employees, workers and those engaged in their own business.  Where a legal right extended to workers, it is only the last category of self-employed who will be excluded.  In that case Mrs James worked as a courier for Redcats.  There was a written agreement between the parties which included the right to substitute an alternative courier.  Finding that the Employment Tribunal had erred in concluding that the claimant was contracting with the respondents as a customer of her own business and therefore fell outside the statutory definition of “worker”, the EAT considered the contract in the light of the test of “dominant purpose”.  Elias J (as he then was) said as follows at paragraph 65 and following:-

 

                    “I would add that the description of the test as one of identifying the dominant purpose is perhaps not all together a happy one.  As Morris LJ observed in Mingeley, “it has its difficulties because the search for the dominant purpose can be elusive and does not always result in clear and controvertible conclusions”.

 

                    “The problem, I suspect lies in the word “purpose” which can mean both immediate and longer term objectives.  If I employ bus drivers who are employees, it may still be said that my business is to run an efficient bus service rather than personally to employer the drivers.  By “dominant purpose” in this context the Courts are focussing on the immediate purpose of the contract. 

 

                    “An alternative way of putting it may be to say that the Courts are seeking to discover whether the obligation for personal service is the dominant feature of the contractual arrangement or not.  If it is, then the contract lies in the employment field; if it is not – if, for example, the dominant feature of the contract is a particular outcome or objective and the obligation to provide personal service is an incidental or secondary consideration, it will lie in the business field.

 

                    “This is not to suggest a tribunal will be in error in failing specifically to apply the “dominant purpose” or indeed any other test.  The appropriate classification will in every case depend upon a careful analysis of all the elements of the relationship ... it is a fact sensitive issue and is there is no shortcut to a considered assessment of all relevant factors.”  (Paras 65-68 of the judgment). 

 

21.     Ms Campbell cross-examined the claimant and put to him that he was not obliged to turn up for work by way of challenging that he was a “worker”, and so it may be relevant to consider the judgment in McMeechan v Secretary of State for Employment [1997] IRLR 353.  In that case the question was whether the worker was an employee of an employment agency.  There was no obligation on the employee to accept any particular offer of employment that might be made or any obligation to offer work to him.  The issue was whether, when the agency became insolvent, the claimant was an employee and so entitled to recover outstanding monies due to him against the Secretary of State pursuant to the insolvency provisions in The Employment Rights Act.  Waite LJ said as follows:-

 

                    “In a case like the present where the money claimed is related to a single stint served to one individual client, it is logical to relate the claim to employment status to the particular job of work in respect of which a payment is being sought.  I note that the editors of Harvey appear to take a similar view where they suggest (at para A53) “... the better view is not whether the casual worker is advised to turn up for, or do the work but rather if he turned up for and does the work, whether he does so under a contract of service or for services.””

 

22.     In James, Lord Justice Elias applied this logic and commented,

 

                    “In my view the fact that there is a lack of any mutual obligation when no work is being performed is of little, if any, significance when determining the status of the individual when work is performed.  At most it is merely one of the characteristics of the relationship which may be taken into account when considering the context.  It does not preclude a finding that the individual was a worker, or indeed an employee, when actually at work.”

 

23.     The only authority to which Ms Campbell referred me was the decision in Bacica v  Muir, a decision of the Employment Appeal Tribunal in 2006.  In that case Mr Muir worked for Mr Bacica under the CIS Scheme, he had profit and loss accounts prepared by an accountant and capital allowances were provided for.  He was paid an hourly rate which was intended to provide an element to cover his overheads.  He was not paid if he was not working and during the time that he worked for the respondent, he also did work for others.  He brought a claim in respect of unpaid holiday pay, contenting that he was a worker within the meaning of the Working Time Regulations.  The respondent contended that he was self-employed and therefore not entitled to holiday pay.  Examining the particular situation in the case, the EAT held that the mere rendering of a service personally does not make an individual a worker.  Factors such as working on the basis of a CIS certificate, having business accounts prepared submitted to the revenue, being free to work for others and in fact doing so, being paid a better rate which includes an overhead allowance and not being paid if not working, could all be relied upon as supporting the view that an individual was running a business and that work performed by him in the course of his doing so was on the basis that the person for whom he performs work is a customer of that business.  That circumstance would take the claimant outside the definition of a worker in that particular case.  The factual circumstances in Bacica made it abundantly clear that the claimant was carrying on a business on a self-employed basis and that the work he did for the respondent was one of his business activities.  Accordingly he was not a worker and he was not entitled to holiday pay.  This was the only authority opened to me by Ms Campbell apart from handing in a photocopied extract from the 2011 Edition of Tolley’s Employment Handbook.  This (out of date) text book, did not cover the leading authority of Jivraj v Hashwani, which is now four years old.

 

REASONS AND DECISION

 

Is the claimant self-employed or a worker?

 

24.               The main issues to be decided in considering whether or not the claimant is a worker are first of all whether he is under an obligation personally to do work and secondly, whether the person for whom the work is done was a client or customer of the business being run by the individual. 

 

25.     I have considered carefully the authorities in relation to this matter and the circumstances of this particular case.  The claimant accepted a position with the respondent and was told that he would be working under a CIS certificate.  Accordingly he had to arrange to register and provide a UTR certificate, which determined the level of tax deductions from his wages. 

 

26.     The claimant was clear that when he agreed to go and work for the respondent they discussed the hours of work, the rate of pay, the issue in relation to transport to jobs on mainland Europe and accommodation.  The agreement was never reduced to writing.  In spite of Ms Campbell’s assertion that he was not under an obligation personally to do work and could have provided a substitute, the claimant disputed this and so did Mr O’Doherty for the respondent.  He indicated that it would have been virtually impossible for the claimant to provide a substitute, given that they were working on mainland Europe: in Mr Doherty’s words there was “no one there to replace him”.  It was never suggested that the claimant had sent anyone else to replace him or that this was a realistic option and so I find that there was not in fact a right for the claimant to send someone else as a substitute.  On the contrary, it is my finding that the claimant was under an obligation personally to do work for the respondent, as evidenced by the fact that he had to go to the site, work the hours directed and stay nearby until the work was done.  He was under Mr O’Doherty’s direction and supervision and in my view, the claimant was subordinate to the respondent.  He did not pay for his own travel and accommodation, which to me suggests that he was an employee or a worker rather than running an independent business – had he had been doing the latter, it seems more likely he would have covered his own travel expenses and sought to offset the expenses against his earnings.

 

27.     Secondly, Article 3(3) of the 1996 Order requires that the person for whom the work is done must not be a client or customer of a business being run by the individual.  This is obviously necessary because otherwise the truly self-employed (whether a lawyer or a plumber providing services to the public at large) would be caught by a definition which requires only that they do the work personally.  Ms Campbell put it to the claimant that he was running his own business on the basis that he had to complete a tax return and that he could do work for other people.  The claimant’s response was that he only had to complete a tax return once because he was working for the respondent.  Secondly, given that he was working at various locations in Germany and in various other locations in mainland Europe for upwards of 60 hours a week on a regular basis, it is difficult to see how he could have conducted his own business on a self-employed basis and could have taken on other work.  There was no evidence adduced to show that the claimant actually took on other work or that he was running his own business while working for the respondent.  On Mr O’Doherty’s own evidence, he directed the claimant and his other workers as to where to go, what to do and inspected their work when it was completed so the claimant was clearly under his supervision and control while working.  While the claimant provided some of his own hand tools (as many tradesmen would), power tools and all materials were provided by the respondent.  Ms Campbell also put it to the claimant that he was not obliged to turn up for work, to which his response was that no one was obliged to turn up for work, which is debateable.  It was also noted that the claimant was not entitled to holiday pay or sickness pay.  However the fact that there may be a lack of mutual obligation when no work is being performed is not, accordingly to Lord Justice Elias, of any significance when determining the status of the individual when work is actually performed.  At most it is merely one of the characteristics of the relationship which may be taken into account.  There was no evidence whatsoever that the claimant had any responsibility for running a business, was taking any financial risk or had to pay any overheads.  On this basis, and taking account of the dicta of Mr Justice Elias in James v Redcats, it is my finding that the essence of the relationship between the claimant and the respondent was one of personal service and not an arrangement between two independent business undertakings.  I am satisfied on this basis that the claimant is a “worker” within the meaning of Article 3(3) of the 1996 Order and therefore has standing to bring a claim in relation to unlawful deductions of wages. 

 

The unlawful deductions claim

 

28.     As set out at the start of this decision, the amount at issue between the parties relates to 74 hours work during the week ending 8 September 2014 and 10 and 11 September 2014.  The parties agreed that the number of hours involved was 74 hours and that the claimant was paid £10.00 per hour.  The amount at issue is £740.00, subject to deduction of income tax at the rate of 30%.  This reduces the net amount of the claim to £518.00 which the respondent agreed had not been paid to the claimant.  I was not satisfied on the information before me that there had been any agreement between the parties that the respondent was entitled to recoup money paid in respect of accommodation from the claimant’s wages.  In any event it is clear from the wording of Article 45 of the 1996 Order that for an employer to make such a deduction, the deduction must be required or authorised by virtue of a statutory provision or a relevant provision of the worker’s contract or the worker must have previously signified in writing his agreement or consent to the making of the deduction.  In this case there was no written contract provided to the claimant by the respondent and there was no written consent from the claimant to such deductions.  Accordingly it is my finding that I have no power to make any deductions in connection with the issue of accommodation, even if I had been satisfied that the respondent was entitled to make such deductions, which I am not.

 

29.     In relation to the issue of the alleged overpayment of wages to the claimant in 2013, it is not clear to me that this was indeed an overpayment.  A record of payments made to the claimant was presented to the tribunal on the morning of the hearing and the claimant had not had the opportunity to research the matter or check the payments against his own bank records.  I am not therefore satisfied that as a matter of fact the respondent has proven that these overpayments were made.  Secondly, even if I were so satisfied, I am not satisfied that I have any power under the 1996 Order to offset the amount of any alleged overpayment against deductions of wages made by the respondent for the reasons set out at paragraph 14 above.  Accordingly I do not believe that it was appropriate for me to make any deductions from the net amount of £518.00 which the respondent conceded had not been paid to the claimant.  Accordingly I order the respondent pay to the claimant the sum of £518.00 in respect of unpaid wages.

 

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

 

Employment Judge:      

 

Date and place of hearing:         21 May 2015, Belfast.      

 

Date decision recorded in register and issued to parties: