Meena Agarwal v Cardiff University
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Hamblen,Lord Justice Underhill |
| Judgment Date | 27 September 2018 |
| Neutral Citation | [2018] EWCA Civ 2084 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2017/1079 |
| Date | 27 September 2018 |
[2018] EWCA Civ 2084
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Slade J and HHJ Hand QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Bean
and
Lord Justice Hamblen
Case No: A2/2017/1079
A2/2018/0242
and
Mr Mark Sutton QC and Ms Eleena Misra (instructed by Bindmans LLP) for the Appellant in Agarwal
Mr David Mitchell (instructed by Eversheds Sutherland LLP) for the First Respondent in Agarwal
Mr Giles Powell and Adam Ross (Instructed by Blake Morgan) for the Second Respondent in Agarwal
Mr David Reade QC and Joseph Bryan (instructed by Addleshaw Goddard) for the Appellant in Nexus
Mr John Hendy QC and Ms Katharine Newton (instructed by Thompsons Solicitors) for the Respondents in Nexus
Hearing dates: 6 & 7 June 2018
INTRODUCTION
These two appeals were heard together because they raise an issue about the jurisdiction of the Employment Tribunal to resolve disputes about the construction of a contract of employment in the context of a claim for unauthorised deduction of wages under Part II of the Employment Rights Act 1996. I will refer to this as “the jurisdiction issue”. Apart from that common point each appeal raises a distinct issue of its own. In Agarwal there is a question as to whether it is open to the Appellant to raise the jurisdiction issue at all because of a concession made in the ET (“the concession issue”): for that reason permission to appeal was not initially granted and the hearing proceeded on a rolled-up basis. In the Tyne and Wear appeal (to which I will refer as Nexus, that being the Appellant's trading name) it is necessary, subject to the outcome of the jurisdiction issue, to determine the substantive question of construction.
At the conclusion of the hearing we announced our decision on the jurisdiction and concession issues, as a result of which we granted the Appellant in Agarwal permission to appeal and allowed the appeal. We said that our reasons would be given in due course. This judgment sets out those reasons and decides the remaining issue in Nexus.
I will set out the facts and the procedural histories only to the limited extent necessary to explain how both appeals arise. In Agarwal the appeal is by the Claimant in the underlying proceedings, Ms Meena Agarwal, who is a consultant urological surgeon employed under a “clinical academic contract” under which she performs academic duties for the First Respondent, Cardiff University, and clinical sessions for the Second Respondent, the Cardiff and Vale University Local Health Board. The University pays her in respect of both duties though it is entitled to reimbursement by the Health Board as regards 50% of her salary. As a result of a dispute arising from a prolonged period of sickness absence, the Board believes that Ms Agarwal is not contractually entitled to be paid in respect of her clinical duties and has declined to fund the University to pay that part of her salary; and the University has withheld it accordingly. Ms Agarwal brought proceedings in the ET for unauthorised deduction of wages under Part II of the 1996 Act; but following a preliminary hearing, Regional Employment Judge Clarke held that the Tribunal had no jurisdiction to determine the underlying contractual dispute. That decision was upheld by Slade J in the Employment Appeal Tribunal, in a judgment handed down on 22 March 2017. Both the University and the Health Board are Respondents to the appeal.
In Nexus, the Appellant operates the Tyne and Wear metro system. An issue has arisen between it and employees in grades 1–3 of its pay structure (“Red Book staff”) about whether the effect of a pay agreement entered into in 2012 between it and the recognised trade union, RMT, was to uplift their basic pay for the purpose of the calculation of shift allowance. Seventy such employees, who are the Respondents to this appeal (but to whom I will refer as “the Claimants”), brought proceedings in the ET under Part II of the 1996 Act, with the support of the Union, in respect of the non-payment of sums which they believed to be due under the agreement. By a decision sent to the parties on 21 December 2015 Employment Judge Hunter found in their favour on the issue of liability and directed a hearing to quantify the amounts due. Nexus appealed. In the EAT a point was taken for the first time as to whether the ET had had jurisdiction to determine the underlying contractual dispute. HH Judge Hand QC (sitting alone) permitted the point to be taken, but by a judgment handed down on 15 January 2018 he rejected it and dismissed the substantive appeal. This is an appeal against that decision.
In Agarwal Ms Agarwal is represented by Mr Mark Sutton QC, leading Ms Eleena Misra; the University by Mr David Mitchell; and the Health Board by Mr Giles Powell leading Mr Adam Ross. Mr Mitchell and Mr Powell have appeared throughout, but in the ET and the EAT Ms Agarwal was represented by Ms Althea Brown. In Nexus the Claimants are represented by Mr John Hendy QC, leading Ms Katharine Newton, and Nexus by Mr David Reade QC, leading Mr Joseph Bryan; none of them appeared below.
It is arguable that as a matter of strict logic the concession issue in Agarwal should be taken first, but it is more convenient to start with the jurisdiction issue which is common to both appeals.
(A) BOTH CASES: THE JURISDICTION ISSUE
I start with the applicable statutory provisions. The principal operative provision under Part II of the 1996 Act is section 13, which gives workers the right not to suffer unauthorised deductions from their wages. It reads (so far as material for our purposes):
“(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 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 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.”
Section 14 identifies a number of types of “excepted deduction” to which section 13 does not apply: I need not set them out here.
Sections 15 and 16 contain provisions essentially equivalent to sections 13 and 14 covering the cognate situation where a worker is required to make payments to his or her employer. Sections 17–22 impose additional restrictions on the making of deductions or the requirement of payment in respect of cash shortages and stock deficiencies in retail employment, or the determination of the amount of wages by reference to such shortages and deficiencies. I need not set out any of those provisions here.
Sections 23–26 deal with enforcement. The primary provision for our purposes is section 23 (1) (a), which reads (so far as material) as follows:
“(1) A worker may present a complaint to an employment tribunal —
(a) that his employer has made a deduction from his wages in contravention of section 13 …”.
Section 24 (1) (a) provides that where a tribunal finds such a complaint well-founded it shall make a declaration to that effect and order the employer to pay the worker the amount of the deduction. Sections 25 and 26 contain ancillary provisions to which some reference was made in submissions before us but which do not in the end advance the argument.
Section 27 defines the term “wages” for the purpose of Part II. Sub-section (1) sets out the primary definition in elaborate terms. For present purposes all that is relevant is head (a), which refers to “any fee, bonus, commission, holiday pay or other emolument referable to [the worker's] employment, whether payable under his contract or otherwise”. That is subject to certain exclusions listed in sub-section (2). Sub-sections (3)-(5) are ancillary and I need not set them out. There is no definition of “deduction”; nor, I should say, is there any such definition elsewhere in the statute.
Section 205 (2) of the Act provides that “the remedy of a worker in respect of any contravention of section 13 … is by way of complaint under section 23 and not otherwise”.
The 1996 Act is a consolidation statute. The provisions of Part II re-enact, with a slightly different structure but to (necessarily) the same effect, the provisions of the Wages Act 1986. For present purposes I need only note that sub-sections (1)-(2) of section 13 of the 1996 Act derive from sub-sections (1) and (3) of section 1 of the 1986 Act; that section 13 (3) derives from section 8 (3) (section 8 being the definition section); and that section 14 derives from (part of) section 1 (5).
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