Camden Primary Care Trust v Atchoe
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH,SIR PETER GIBSON,LORD JUSTICE MOORE-BICK,SIR IGOR JUDGE |
| Judgment Date | 09 May 2007 |
| Neutral Citation | [2006] EWCA Civ 1859,[2007] EWCA Civ 714 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2007 |
| Docket Number | A2/2006/1997 |
[2006] EWCA Civ 1859
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE MCMULLEN QC)
Royal Courts of Justice
Strand London, WC2
Lady Justice Smith
A2/2006/1997
THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is an application for permission to appeal from the decision of the Employment Appeal Tribunal (“EAT”), reversing the decision of the Employment Tribunal (“ET”) in this claim, which was brought under section 13 of the Employment Rights Act 1996.
The applicant was employed by the respondent as a maintenance fitter. The ET held that there was a term of his contract of employment that the applicant was obliged to provide on-call services. The ET found that the applicant was fully qualified as a maintenance fitter, as required by his contract. The respondent withdrew the applicant from their on-call roster, not because he was in fact unqualified as a maintenance fitter, but because, at the time of the withdrawal, the respondents were unsure whether or not the applicant was properly qualified—they had lost his copy certificates.
The ET held that the respondent was entitled to withdraw the applicant from the roster, in effect suspending him from the roster while they were uncertain as to his qualifications. But the ET also held that the respondent was not entitled to withhold the applicant's on-call allowance pending resolution of that uncertainty. It is worth noting that the respondent's letter, by which it informed the applicant of the decision to remove him from the roster, told him that it would continue to pay his on-call allowance. It later contended that that was said in error and it refused to pay the allowance. It was for that allowance that the claim was brought. However, according to the ET's decision, that letter correctly reflected the legal position.
The EAT held that, because the ET held that the respondent had been entitled to remove the applicant from the roster, it followed that it was also entitled to withhold his on-call allowance.
In my view it is arguable that the decision of the ET was right and that of the EAT was wrong. Accordingly, I grant permission to appeal.
I shall give directions for the Court of Appeal office. This appeal should be heard either by three Lord Justices, or two Lord Justices and one High Court Judge. One of the Lord Justices must have expertise in Employment Law, and I estimate, subject to consultation with counsel who will be instructed, I have no doubt, on behalf of the respondent, that the time estimate allowed should be three hours.
Order: Application granted.
[2007] EWCA Civ 714
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
President of the Queen's Bench Division
(Sir Igor Judge)
Lord Justice Moore-Bick
Sir Peter Gibson
A2/2006/1997
The Appellant appeared in person
MISS KATHERINE NEWTON (instructed by Beachcroft Wansbroughs) appeared on behalf of the Respondent
Section 13 of the Employment Rights Act 1996 confers on an employee the right not to suffer unauthorised deductions from his wages. There is no unauthorised deduction if the deduction is required or authorised by statute or a relevant provision, as defined, of a contract or that the employee has previously signified in writing his consent to the making of a deduction. By section 13 (2), “relevant provision” means —
“a provision of a 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 making the deduction in question, or
(b) in one or more terms of the contract ….. the existence and effect ….. of which in relation to the worker the employer has notified to the worker in writing on such an occasion.”
By Section 13 (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 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.”
This is an appeal by Mr Atchoe from the order made by the Employment Appeal Tribunal (“the EAT”), His Honour Judge McMullen QC presiding, on 22 August 2006. Thereby the EAT allowed the appeal of Mr Atchoe's employer, Camden Primary Care Trust (“Camden”), from the decision of an Employment Tribunal (“ET”) sitting in London Central that Camden had made an unauthorised deduction from his wages in contravention of Section 13. The EAT substituted a finding that Mr Atchoe's complaint that there had been such a deduction was not well founded.
The facts are these. Camden is an NHS Primary Care Trust in North London. Mr Atchoe has been employed by Camden, or its predecessor organisation, since 5 November 1990. Originally he was employed as a maintenance fitter but was promoted on 22 December 1996 to a Craftsman Technician Estates Officer Grade 1 in the Maintenance Department of Camden.
His terms and conditions of employment are set out in a written statement of the main terms and conditions and in a written job description. By clause 1 of the written statement the Whitley Council terms and conditions are incorporated into his contract. Clause 1.1 of his written statement states that his job was subject to local policies and agreements appropriate to his post. His normal working hours are 37 hours per week, but in his job description his main duties and responsibilities include that he should —
“contribute to an out-of-hours manager emergency on-call system.”
His required qualifications included, as the ET found, City and Guilds technical qualifications. The ET found that at the time of his initial employment and on subsequent promotion he produced his original trade qualification certificates which were inspected and copied by Camden and/or its predecessor on two occasions, and those certificates included various City and Guilds qualifications.
Mr Atchoe today showed us a document headed On-call Technician Daily Duties which he described as a local agreement and said that it superseded the Whitley Council terms. There is no evidence before us that it was such a local agreement but, in any event, no provision of that document has been shown to be inconsistent with the relevant Whitley Council terms.
To operate the on-call system there were six technicians including Mr Atchoe. Each technician was on call about once every seventh week. To be on call duty, as the Whitley Council terms provide, the technician undertakes a specific roster commitment to be continuously and immediately available at home. A call occurs if the technician attends a hospital or other place of work outside normal working hours in response to a request to perform urgent work. He receives a payment, in the form of a daily allowance, for being on call. I shall call this “the stand-by payment”. If called out, he receives a further payment for the time spent on the call out, calculated on a basis akin to overtime.
On 28 October 2003 Mr Atchoe was suspended while an investigation was carried out in respect of an unrelated matter. The suspension was not a disciplinary act and had no disciplinary consequences. On 4 February 2004 he returned to work, but, as result of the investigation, Camden decided to review his training needs. By a letter dated 26 February 2004 his line manager asked Mr Atchoe to submit all his current trade qualifications and any other qualifications he had gained, including one-day seminars.
By an undated letter written at the end of February 2004 to the line manager Mr Atchoe listed certain qualifications but did not send any certificates or copies. By letter dated 2 March 2004, his line manager wrote to Mr Atchoe to say that his handwritten confirmation of his trade qualifications was not acceptable and asked him to submit the original certificates or copies of his qualifications.
By letter dated 5 March 2004, Mr Simms, the Manager Estates and Facilities, wrote to Mr Atchoe informing him that he had been taken off the on-call roster for safety reasons. He was told that he would receive the stand-by payments which he would have received if he participated in the on-call roster. He was also told that he would not be paid the equivalent overtime carried out by his replacement. The statement that he would receive the stand-by payments was subsequently said by Camden, but only at the hearing before the EAT, to be incorrect. Mr Simms, in his letter, referred to Camden's request for copies of Mr Atchoe's core trade qualifications which had not been forthcoming.
By letter dated 5 March 2004 Mr Atchoe expressed his disappointment that Camden did not have records of his training and development and added that it was not his responsibility to educate the office in bookkeeping. Mr Simms replied on 9 March 2004, regretting that Mr Atchoe's records were not to hand but said that Camden was trying to remedy the situation by requesting copies of his technical qualifications. He added that Camden would reimburse any...
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