Mr I Akram v East Lancashire Hospitals NHS Trust: 2411196/2021
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 2023 |
| Date | 02 May 2023 |
| Published date | 18 May 2023 |
| Court | Employment Tribunal |
| Citation | 2411196/2021 |
Case No: 2411196/2021
EMPLOYMENT TRIBUNALS Claimant
Mr I Akram
Respondent:
East Lancashire Hospitals NHS Trust
Heard at:
Liverpool
Before:
Employment Judge Aspinall Mr G Pennie
Mr R Cunningham
On:
8 and 9 November 2022 and Tuesday 24 January 2023
Representation
Claimant:
Mr Isaacs (Counsel)
Respondent:
Mr Ohringer (Counsel)
RESERVED JUDGMENT 1. The Claimant’s complaint of trade union detriment fails.
2. The Claimant’s complaint of unauthorised deduction from wages in relation to the proper basis of calculation of holiday pay succeeds in principle. A remedy hearing is needed to determine, having regard to any off-set,
whether any payment is due to the Claimant.
REASONS
Background
1.
By a claim form dated 22 September 2021 the Claimant, a band 6 phlebotomist at the Respondent and a trade union representative, brought complaints under the Working Time Regulations 1998 (WTR) and under Section 13 Employment Rights Act 1996 that he had not been paid his correct amount of holiday pay, had suffered deductions from his pay, and under Section 146 Trade Union and Labour Relations Consolidation Act 1992 that he had suffered detriment as a trade union representative.
1
Case No: 2411196/2021
2.
The detriment which came to be determined by the Tribunal was late payment of paternity pay.
3.
The Claimant withdrew arguments that he had also suffered underpayment of paternity pay and underpayment of holiday pay as a result of his trade union membership. He accepted that in the course of investigating the Claimant’s grievance the Respondent found that the basis of calculation of paternity pay for all workers was wrong. It took steps to remedy the error so that all workers who had been underpaid paternity pay received back pay in December 2021. The Claimant accepted that this had been done for everyone irrespective of trade union membership or activity. He also withdrew his argument that underpayment of holiday pay was also a detriment due to his trade union membership as he accepted that everyone at the Respondent was being paid holiday pay in the same way.
4.
In relation to his holiday pay complaint he said the formula used by the Respondent, to divide annual salary by 365 days to achieve a daily rate of annual leave entitlement, was wrong. He said that the Respondent should have counted working days, not calendar days. This would have meant a higher rate of pay for his annual leave.
5.
Although the List of Issues asked the Tribunal to identify the correct basis of calculation of holiday pay for Section 221(2) workers, the Respondent conceded in closing submissions that the Claimant was a Section 222 worker. The List of Issues was amended and the Tribunal has addressed both the Section 221(2) and Section 222(1) positions.
The List of Issues 6.
The parties agreed the following issues between themselves, there had been no case management hearing.
Unlawful deduction from wages – section 13 Employment Rights Act 1996 1.
What is the correct method for calculating a day’s holiday considering ‘the amount payable under the contract of employment’ for the purposes of section 221(2) and or section 222(1) ERA 1996 when read to comply with the Working Time Regulations 1998? [The Claimant says it should be 1 divided by the number of working days in the month. The Respondent says it should be divided by the number of calendar days in the month.]
Detriment on grounds related to union membership or activities – section 146 Trade Union and Labour Relations (Consolidation) Act 1992 2.
It is agreed that the Claimant participated in strike action in the period starting 7 May 2021. Did this constitute ‘activities of an independent trade union at the appropriate time’ pursuant to s.146(1)(b)) of the Trade Union and Labour Relations (Consolidation) Act 1992?
2
Case No: 2411196/2021
3.
Was the Claimant subjected to the following treatment:
a. Delayed payment of paternity pay owed to the Claimant;
4.
If so, did this amount to a detriment?
7. If so, was the sole or main purpose of each detriment complained of to prevent or deter the Claimant from taking part in the activities of a trade union at an appropriate time or in order to penalise the Claimant for doing so?
Further discussion of the issues 5.
--During closing submissions Mr Ohringer submitted in relation to the holiday pay complaint that the focus in the case was shifting from the divisor point only to a broader consideration of the component parts of the holiday pay calculation. He wished the Tribunal to address the basic pay element only. He said that any argument on underpayment of the enhanced element of holiday pay was not brought within the Claimant’s complaint so that an amendment application would be required for the Tribunal to determine it.
6.
He submitted that a Tribunal decision on the enhancement element of holiday pay (which the Respondent says is addressed by Agenda for Change) may have implications for NHS workers generally and that the Tribunal may wish to hear from NHS England which might be invited to make representations on the implications of the case. Mr Ohringer wanted the Tribunal to record his concerns.
The Tribunal agreed to do so and a note was read back to him and agreed by all parties to accurately reflect his concerns.
7.
Mr Isaacs submitted that this was always a case which had the potential to have wide-ranging implications and that it was not acceptable for the Respondent now, after it had closed its evidence, to protest about implications of a decision,
when it had been apparent from the outset that the Tribunal would be determining issues as to the proper basis of calculation of holiday pay for the Claimant.
8.
Following an adjournment, the Tribunal decided that the issue of undercalculation of holiday pay in all of its component parts was on the Claim Form so that there was no expansion of complaint and no need for an amendment application.
The Hearing
Possible stay in proceedings 9.
The case of Agnew, from the Northern Ireland Court of Appeal, on the divisor in holiday pay complaints, was to be heard by the Supreme Court on 14 December 2022. Neither side advocated a stay in proceedings.
10.
On the trade union detriment complaint, on the issue of the definition of
3
Case No: 2411196/2021 union activities, leave to appeal had recently been granted by the Court of Appeal in Mercer v AFG. Again, neither side advocated a stay in proceedings. In the event it was not necessary to determine the activity point in this case, the complaint having failed for other reasons.
Documents
11.
The Tribunal saw a bundle of witness statements, a hearing bundle of 293 pages, the Claimant and Respondent each produced a skeleton argument, the Respondent submitted a bundle of authorities and there was the agreed list of issues and each side’s worked example of a holiday pay calculation.
Oral evidence
12.
The Tribunal heard evidence from Mr Akram, Mr Carter, Ms Middleton and Ms Elliston. Each of them gave their evidence in a straightforward and helpful way.
13.
Following closing submissions Ms Middleton sought through Mr Ohringer to revisit her evidence as to the basis of calculation of the enhanced element of holiday pay.
14.
The hearing took place in October 2022 but was adjourned and the parties invited to submit worked examples of their calculations of holiday pay. Those worked examples were received and formed the basis of further submissions made on 24 January 2023. The decision was then reserved.
The Facts
15.
The Claimant worked for the Trust from 1 November 2013. The Claimant was a Band 6 Phlebotomist employed under a contract of employment with the Respondent. The provisions of the Working Time Regulations applied so that the Claimant was entitled to paid annual leave. His contract of employment incorporated the provisions of Agenda for Change which provides at section 7.1 that the annual salaries of full time employees who are paid monthly shall be paid for each calendar month one twelfth of the annual salary.
16.
At section 13 for annual leave it provides that where staff work standard shifts other than seven and a half hours excluding meal breaks, annual leave should be calculated on an hourly basis to prevent staff on these shifts receiving greater or less leave than colleagues on standard shifts.
17.
At section 13.9 it provides pay during annual leave will include regularly paid supplements, including… payments for work outside normal hours. It says, “pay is calculated on the basis of what the individual would have received had he been at work”. From 6 April 2020 for those who had irregular hours the reference period should be based on the last 52 weeks.
18.
The Trust used East Lancashire Financial Services shared services centre (ELFS) to run its payroll. Ms Middleton was the payroll operations manager for ELFS. ELFS used Electronic Staff Record, “ESR”, which is a payroll database
4
Case No: 2411196/2021 system commissioned and run by the Department of Health and Social Care. It is run by a central NHS ESR team which works with IBM to put the formulae for calculations of salary into ESR in accordance with the terms of Agenda for Change terms and conditions of service.
19.
The Claimant’s contract provided that he worked 37.5 hours per week. He worked a rota that differed from week to week and the remuneration payable to him differed depending on the shift to which he was allocated. His hours were worked on a rota or shift pattern prepared by management. His shifts were of varying duration, sometimes in excess of 7.5 hours. The Claimant was paid an enhanced payment if he worked unsocial hours. He was not required to do any work on his non-working/rest days. The Claimant was permitted to carry forward some annual leave entitlement and if he subsequently sold some of it back to the Respondent it was paid out at 7.5 hours equating to one day’s entitlement.
20.
If the Claimant agreed to work additional shifts they would be classed as overtime.
21.
The Claimant was paid...
To continue reading
Request your trial