Mr I Akram v East Lancashire Hospitals NHS Trust: 2411196/2021
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 2023 |
| Date | 02 May 2023 |
| Court | Employment Tribunal |
| Published date | 18 May 2023 |
| Subject Matter | Trade Union Membership |
Case No: 2411196/2021
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EMPLOYMENT TRIBUNALS
Claimant: Mr I Akram
Respondent: East Lancashire Hospitals NHS Trust
Heard at: Liverpool On: 8 and 9 November 2022
and Tuesday 24 January 2023
Before: Employment Judge Aspinall
Mr G Pennie
Mr R Cunningham
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.
Case No: 2411196/2021
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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?
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