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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCann v McLernon Financial [2010] NIIT 6834_09IT (27 April 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/6834_09IT.html Cite as: [2010] NIIT 6834_9IT, [2010] NIIT 6834_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6834/09
CLAIMANT: Danielle McCann
RESPONDENTS: (1) McLernon Financial
(2) Pearl & Rory McLernon
DECISION
The tribunal makes a declaration that the respondents are to pay £1,807.50 to the claimant being repayment of unlawful deduction from her wages.
Constitution of Tribunal:
Chairman (sitting alone): Mrs M Watson
Appearances:
The claimant represented herself
The respondent, Mrs McLernon, attended but was not represented
Issues
1. The claimant’s claim was for wages which she claimed had been unlawfully deducted from her wages during her employment by the respondents.
2. The tribunal heard oral evidence from the claimant. Mrs McLernon, one of the respondents, was present but was not entitled to take part in the hearing as no response had been lodged with the tribunal within the statutory time limits.
Findings of Fact
3. The claimant was employed by the respondent company as a Mortgage and Protection Administrator from November 2007 until her employment was terminated on 12 June 2009.
4. The claimant was not provided with any statement of employment particulars and did not receive any itemised payslips during her employment.
5. On or about the 27th of each month, the claimant was paid £1059.30 net and she worked 35 hours per week. The tribunal finds that these terms represented the basic terms of the oral contract of employment between the parties.
6. At the end of January 2008, the respondents’ cheque for the claimant’s salary was returned to them unpaid. It was re-lodged and honoured on 5 February 2008.
7. There were no further problems with payment of the claimant’s salary until September 2008 when the respondents’ cheque was again returned unpaid. She eventually received her September payment on 3 October 2008.
8. The claimant’s October salary was paid on 3 November 2008.
9. The December salary cheque was lodged on 19 December 2008 but was returned and the claimant did not receive any salary before Christmas. The respondents’ spent Christmas in Florida.
10. On 5 January 2009, the claimant received a text message from Mrs McLernon to say ‘sorry about the wages’ and expressing a hope that Christmas had not been ruined for the claimant. The December salary was paid on 8 January 2009
11. The salaries for January and February were paid in full albeit late.
12. On 13 March 2009, the claimant was informed that her hours were being reduced and that from then on, she was to work 21 hours per week instead of 35. There was no discussion about this change and the claimant was never provided with any written information of the variation to her terms and conditions of employment. Nor was she asked to signify her agreement to any such change.
13. On 6 March 2009, the claimant received payment of £1,059.30 being her salary for February. Between then and the termination of her employment on 12 June 2009, the claimant received the following payments;-
17 April 2009 £400.00
24 April 2009 £159.30
24 April 2009 £500.00
22 May 2009 £300.00
4 June 2009 £300.00
22 June 2009 £200.00
Total £1,859.30
14. The claimant provided the tribunal with a document from her employers dated 7 January 2008 which stated, inter alia, that a bonus scheme was to be introduced. The document indicated that the claimant would be paid extra for certain duties but the tribunal was not provided with any indication that such a scheme had ever been implemented.
Relevant Legal Provisions
15. Chapter V of the Employment Rights (Northern Ireland) Order 1996 (as amended) provides at Article 17 (2) that in respect of an employee who works within normal working hours and where remuneration does not vary with the amount of work done, “the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.”
16. Article 33(1) requires employers to give to an employee a written statement of the particulars of their employment. The particulars required are set out and include the names of the employer and employee, the starting date, remuneration and how this is to be calculated, holiday entitlement, notice periods etc. This statement shall be given to an employee “not later than two months after the beginning of the employment”. (emphasis added)
17. Article 36 (1) provides that where there is any change in any of these particulars, “the employer shall give to the employee a written statement containing particulars of the change.” (emphasis added)
18. Article 40 (1) gives employees the right to be given a written itemised pay statement containing particulars of gross and net salary payable and any deductions made.
19. Where, as in this case, these statutory requirements are not complied with, an employee may refer the matter to a tribunal for a determination of what these particulars are (or were). However, such references to the tribunal must be made before the employment ceases or within a statutory time limit. No such application was made by this claimant within that time limit.
20. The next part of the 1996 Order, Part IV, deals with the protection of wages.
Article 45 states:-
“(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 to his employer his agreement or consent to the making of
the deduction.
(2) In this Article, “relevant provision” in relation to a worker’s contract, means a provision of the contract comprised —
……
(b) in one or more term 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.
……
(6) For the purposes of this Article, an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker … before the agreement or consent was signified.”
Determination by the Tribunal
21. Applying these statutory provisions to the
facts found, the tribunal determines that there was no valid variation in the
claimant’s contract terms in March 2009 because of the following deficiencies
in the employment practices and procedures of the respondents.
· The employer was in breach of the statutory requirement regarding the provision of a statement of employment particulars;
· The employer was in breach of the statutory requirement regarding the provision of itemised payslips;
·
The tribunal find that the basic
terms of the employment contract between the claimant and the respondents were
as set out at paragraph 3 above;
· The purported variation in the claimant’s contracted hours and the resultant reduction in her wages was not notified to the claimant in writing;
· The terms of the contract of employment did not contain any provision relevant to any deduction in wages;
· The claimant did not signify any written agreement to any deduction;
· The claimant is not to be taken to have consented to the deduction by her actions.
22. The tribunal therefore determines that the respondents’ attempt to vary the claimant’s contract was invalid as contrary to Article 45 of the 1996 Order. The claimant is entitled to be paid the difference between her original salary and that received between March and June 2009.
23. The unlawful deductions in the claimant’s wages are as follows: ---
Salary for March, April and May = £1,059.30 X 3 = £3,177.90
Salary up to 12 June = 2 weeks
£1,059.30 X 12 = £12,711.60 / 52 = £244.45 X 2 = £ 488.90
Total = £ 3,666.80
Less payments already received (see Para. 11) - £1,859.30
Total Deduction = £1,807.50
24. The tribunal has not made any determination
in relation to the cost to the claimant of the bank charges incurred as a
result of the late payment of wages as this is not a matter covered by the 1996
Order and was not pleaded in the originating claim. In addition, the tribunal
noted that no claim was made in relation to the fairness of the claimant’s
dismissal and no evidence was given in this regard.
25. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 15 March at 2010, Omagh
Date decision recorded in register and issued to parties:
