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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Syed v. Department of Social Security [2002] UKEAT 0732_01_2603 (26 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0732_01_2603.html Cite as: [2002] UKEAT 0732_01_2603, [2002] UKEAT 732_1_2603 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MS N AMIN
MR T C THOMAS CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | ANNA THOMAS (of Counsel) |
For the Respondent | MS I SIMLER (of Counsel) Instructed By: Office of the Solicitor Department for Work and Pensions 5th Floor Sutherland House Surrey SM2 5AN |
JUDGE PETER CLARK:
This was a hearing of a preliminary issue, that is, whether the claim was time-barred. In order to answer that question it is first necessary to identify the cause of action, here unlawful deductions from wages. As the majority of the Court of Appeal in New Century Cleaning Co Ltd v. Church [2000] IRLR 27 made clear, by section 27(1)(a) of the Employment Rights Act 1996 ERA wages mean:
"any fee, bonus…or other emolument referable to his employment, whether payable under his contract or otherwise"
and the words "under his contract or otherwise" entail some legal, not necessarily contractual entitlement to the dispute of payment. As in that case, it is apparent that Mr Sayed could rely only on a contractual entitlement to payment.
It is common ground that collective agreements reached through the negotiating machinery are incorporated into the individual contracts of employment of affected staff.
On the face of it, the form IT1 Particulars of Complaint related to the NDA back-pay issue. However, at the Employment Tribunal Mr Ford produced a detailed written submission which, Ms Simler, who appeared below accepts, widened the apparent scope of the unlawful deductions claim. The enlarged claim, if we may call it that, is helpfully summarised at paragraph 15 of Mr Ford's submission thus:
"This claim relates to a series of deductions by the employer amounting to the:
- difference in earning for the period 12 May 1997 to 1 April 1999
- shortfall in earning from pay progression for period 12 May 1997 to 18 December 2000
- shortfall in his contributions to his Principal Civil Service Pension Scheme"
"We shall refer to those heads as the 1st, 2nd and 3rd grounds of claim. That summary feeds back to paragraphs 2 – 5 of the written submission, which are headed "The Applicant's Claim"
It appears that the Tribunal acknowledged the existence of the enlarged claim. At paragraph 5 of their reasons under the heading "The Applicant's Case," they say this:
"The Applicant's case first related to the period 12 May 1997 to 1 April 1999 for which no backdating provisions were agreed. The second period was from 12 May 1997 to 18 December 2000 where some shortfall was alleged. The Applicant pointed to the details of his pay as of 30 November 2000 and indicated that he had lodged his claim within three months of that date."
The Tribunal then referred to two Scottish decisions relied on by Mr Ford, who appeared below, but which are not material to our judgment in this appeal.
The first ground of claim
Picking through the Tribunal's somewhat unusual format for giving their reasons, we discern their principal findings under this head of claim to be as follows:
(1) Negotiations between the Respondent and the unions over EO grade work, that is new claims visits, concluded in January 2000.
(2) If the Appellant had a complaint in relation to an HDA payment about a deduction from wages it was a deduction on 31 January 2000
(3) Alternatively, further negotiations over pre- 5 April 1999 back-pay concluded on 5 June 2000
(4) In either event the deduction, if any, took place more than three months before the presentation of the Originating Application on 20 December 2000 and was outside the primary limitation period of three months (ERA section 23(2))
(5) Although no submissions were received on behalf of the Appellant as to whether or not it was reasonably practicable for this complaint, brought under section 13(3) ERA, to be presented within time, they had considered that question and, bearing in mind that the Appellant was represented throughout by his union, which had access to specialist legal advice, the application was dismissed.
As we observed earlier, and as Ms Simler accepts, the Tribunal, having identified those further grounds of claim for determination then failed to make any relevant findings of fact or make any determination on those grounds.
Despite Ms Thomas' best efforts on behalf of the Appellant, we are quite unable to discern any error of law in the Tribunal's approach to the first ground, as Ms Simler submits. Miss Thomas was unable to point to any basis in the evidence before the Tribunal, for a claim under this head. There was no legal entitlement to HDA back-pay pre – 5 April 1999. In these circumstances the Tribunal allowed of a hypothetical claim which was, on the evidence, out of time. They considered the question of reasonable practicability and, in the absence of any useful submission on behalf of the Appellant, concluded that he could not rely on the section 23(4) proviso.