The EAT had been correct in finding that an employment tribunal had erred in its interpretation of the Employment Rights Act 1996 s.13(3) that there was no unauthorised deduction from wages where a daily allowance for being on an out-of-hours on-call rota was not paid to an employee who had been removed from that rota in order to comply with health and safety obligations.
The appellant (K) appealed against a decision of the Employment Appeal Tribunal allowing the appeal of the respondent employer (C) from the employment tribunal that C had made an unauthorised deduction of wages. K was a maintenance technician and his job description included a requirement to participate in an out-of-hours emergency on-call rota. K was asked to provide copies of his training qualifications and relevant certificates. K stressed that he had already provided copies of his certificates on two previous occasions and asserted that he was unable to comply with the request since the certificates had been sent to his father in Ghana for safe keeping. As a consequence, C removed K from the rota on health and safety grounds. K brought a claim to the employment tribunal seeking damages for loss of earnings on the basis that C had made unauthorised deductions from his wages by failing to pay him monies he would ordinarily have received whilst participating in the on-call rota in addition to his basic salary. K argued that he would have received payment for being on stand-by and for time spent on an actual call. The employment tribunal agreed with K and held that there had been an unlawful deduction of wages. However, on appeal, the EAT found that the tribunal had erred in its interpretation of the Employment Rights Act 1996 s.13(3) and that it had erred in relying on three authorities without giving the parties an opportunity to make submissions on them. K submitted that the EAT erred in its reasoning that if C had an implied and general contractual right to suspend him on health and safety grounds from the on-call duties he was expressly contractually obliged to perform, it followed that C was under no obligation to pay him the stand-by allowance, regardless of the circumstances of the suspension.
HELD: (1) The tribunal had used the correct starting point under s.13(3) of the 1996 Act by considering what was payable to K. That required consideration of all the relevant terms of K's contract of employment and any implied terms. However the tribunal, having made a finding of fact that C was entitled to remove K from the on-call rota on health and safety grounds, had erred in concluding that amounts properly payable under K's contract included the amounts he would have earned by being on the on-call rota. The payments that K would have received had he not been suspended from the on-call rota were totally separate to his basic salary and that to which a technician was ordinarily entitled. Further the contract itself was silent on any duty to provide work for an on-call technician and was therefore similar in nature to the issue of overtime payments. It was a well known principle that employers, although often providing a clause for the possibility of overtime work, were under no obligation to provide it. In the light of that, the court was not persuaded that there was any obligation on C to maintain any technician on the rota, notwithstanding an employee's obligation to participate in that rota. Accordingly the decision of the EAT was correct. (2) (obiter) It was not in every case that an error of law occurred when an employment tribunal failed to give parties an opportunity to comment on an authority relied on by it. Substantial unfairness or material injustice had to be seen to have resulted if an appeal was to be allowed on that ground. There was no absolute rule on procedural unfairness, Silva v Albion Hotel (Freshwater) Ltd (2002) IRLR 200 considered, Stanley Cole (Wainfleet) Ltd v Sheridan (2003) EWCA Civ 1046, (2003) 4 All ER 1181 applied.
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