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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKimm v South & East Belfast Health and Social Services Trust [2005] NIIT 9594_03 (13 December 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/9594_03.html Cite as: [2005] NIIT 9594_3, [2005] NIIT 9594_03

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THE INDUSTRIAL TRIBUNALS

CASE REF: 9594/03

CLAIMANT: Pauline McKimm

RESPONDENT: South & East Belfast Health and Social Services Trust

DECISION

The decision of the tribunal is that the claimant has not made out a case of unlawful deductions and the claimant's complaint is dismissed, without further order.

Constitution of Tribunal:

Chairman: Mr J Leonard

Appearances:

The claimant was represented by Mr P Boomer, of NIPSA.

The respondent was represented by Mr S Crothers, Solicitor, of Brangam Bagnall & Company, Solicitors.

REASONS

1. Reasons are given80 in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of this matter. The tribunal heard oral evidence from the claimant and, on behalf of the respondent, from Mrs Lynn Ferguson. The tribunal also received in evidence certain documents contained in a bundle of documents and some additional documentation.
2. In her originating application, the claimant complained of 'unlawful deductions and breach of contract'. In a notice of appearance, the respondent denied the claimant's contentions in their entirety. The claimant subsequently withdrew her breach of contract complaint which was withdrawn without objection. The remaining complaint therefore was of unlawful deductions.

THE ISSUES

3. In respect of the claimant's sole remaining complaint, that the respondent had subjected her to unlawful deductions from earnings, the tribunal had to hear and determine that complaint.

THE TRIBUNAL'S FINDINGS

4. On foot of the oral and documentary evidence before it, the tribunal made findings of fact as set out below. In respect of any conflicts in the evidence, the tribunal resolved those conflicts in the making of the following findings:-

(a) The claimant is a Residential Social Worker and was employed by the respondent Trust, commencing in that employment in 1985. The claimant from the outset was based in one of the Trust's premises, an Adolescent Support Unit, situated at College Park Avenue, Belfast. The claimant continued to be employed by the respondent at the date of hearing.

(b) The claimant's employment was subject to the Trust's written terms and conditions of employment contained in the National Joint Council Handbook TC7 (Social Work) and, materially for the purposes of this case, was subject to particular provisions governing the remuneration of any workers required to 'sleep-in', that is to say engaged in the Trust's residential care service and, further, was subject to particular provisions concerning remuneration for weekend working. These specific conditions were contained in an extract from the National Joint Council Handbook TC7 (Social Work) inspected by the tribunal entitled 'Circular HSS (TC6) 2/2001 HSS (TC4) 2/2001' the content of which document both parties agreed was applicable to the respondent's employment of the claimant.

(c) These agreed terms provided that workers required to sleep on the Trust's premises would receive a sleeping-in allowance of £26.42 with effect from 1 April 2001. That allowance was stated as being to cover the requirement to sleep-in and also up to 30 minutes call-out per night. In addition to this, the provision entitled, 'Weekend Working', stated that from 1 April 1993 those rostered to work on average at least 10% of their basic working week at weekends would have their remuneration scales increased by two increments. It was further provided that staff in post between 1 April 1992 and 31 March 1993 who were rostered to work at least 10% of their basic working week at weekends would have their remuneration scales increased by one increment during that period.

(d) As the claimant was employed by the respondent and based in the College Park Avenue premises on terms that normally attracted the benefit of both of the above provisions, the claimant was regularly paid both the sleeping-in and the weekend working allowances or increments.

(e) On 12 April 2003, the claimant was unfortunate enough to become the victim of a physical assault that was alleged to have been perpetrated by a young male residential client which apparently occurred on the College Park Avenue premises. As a result of the assault, the claimant was absent from work from that date on an extended period of sick leave. Whilst on sick leave, under the Trust's terms of employment the claimant received full remuneration over the relevant period of absence, including the allowances and increments mentioned above.

(f) The alleged offender was initially remanded to a Young Offenders' Centre and then moved temporarily into a foster care placement. However the alleged offender was then returned to the College Park Avenue premises. It seems that there were good and necessary reasons underlying that return to College Park Avenue. At that time, the claimant was still off on sick leave.

(g) The Trust then contacted the claimant and a home visit was arranged which took place on 12 June 2003 attended by the claimant and by Mrs Lynn Ferguson, then the Trust's acting Human Resources Manager, Mr Frank Nicholson, Assistant Principal Social Worker, and also, so the tribunal believes, by Mr Liam Walker, who had line managerial responsibility for the claimant. In the course of that home visit and the discussions between the parties of that date, various options were mooted including the suggestion that the claimant might be redeployed. However, no specific terms and conditions which would attach to any such redeployment were discussed at that time and specifically the issue of any financial detriment that might be sustained by the claimant as a result of any redeployment was not touched upon. The Trust had no specific policy governing redeployment in such circumstances.

(h) Thereafter, Mr Ian Howland who exercised line managerial responsibility for the claimant requested Mrs Ferguson to explore further various available options and then to revert to the claimant. This Mrs Ferguson did by means of a telephone call made by her to the claimant on 31 July 2003. There was a conflict in the evidence on the significant issue as to whether or not the topic of terms and conditions of service, and in particular any financial detriment which might be sustained as a result of any redeployment, was mentioned in the course of that telephone conversation.

(i) Having heard the evidence, the tribunal prefers the evidence of Mrs Ferguson that the topic of potential consequential financial detriment was indeed raised by her with the claimant at that time and in the course of that conversation, if the claimant chose as an option a post that did not attract the sleeping-in and the weekend working allowances or increments. The reason for the tribunal preferring Mrs Ferguson's evidence is that, in regard to that point, Mrs Ferguson was clear, cogent and consistent, whereas the claimant's evidence was rather more vague and uncertain.

(j) Although Mrs Ferguson in her evidence was not entirely clear as to whether or not any second telephone conversation took place, the tribunal noted the claimant's contention that there was a second telephone discussion and the tribunal believes that in all probability on or about 15 August 2003, Mrs Ferguson did have a further telephone conversation with the claimant to discuss the options available.

(k) In the course of that first telephone conversation on 31 July 2003, Mrs Ferguson informed the claimant of two possible redeployment options. The first of these was in respect of a post as a Residential Social Worker based at Bawnmore Children's Home, Belfast. That would have been a post of the same nature as the one in which the claimant had been engaged prior to the assault and to her absence on sick leave. Her remuneration, including any enhancements or allowances, would have been precisely the same. The alternative post offered was as a member of the Initial Assessment Team ("IAT") based at the Trust's Social Work Unit at Ormeau Road, Belfast. The salary payable would have been the same as that applicable to the claimant's employment at the time of her sickness absence, except that the additional salary increments and allowances, the sleeping-in and the weekend working allowances, would not have been payable as the claimant would not have engaged in

weekend working and the residential salary enhancement would not have applied.

(l) On 15 August 2003 the claimant approached her trade union, NIPSA, and by letter of 15 August 2003 the claimant's NIPSA representative wrote to the respondent stating, inter alia, in that letter:-

"While Ms McKimm has indicated her willingness to be temporarily redeployed, it is my understanding that the Trust does not propose to protect her salary and enhancement."

A reference was made to the distress and illness suffered by the claimant and a meeting was requested urgently.

(m) On 3 September 2003 a meeting took place between the claimant together with her NIPSA representative, and Mrs Ferguson together with Mrs C Diffin, Family and Child Care Manager of the Trust, and Mr F Nicholson, Acting Principal Social Worker. In the course of that meeting the two posts mentioned above were discussed. Consequent upon that meeting, by letter dated 5 September 2003 the claimant's NIPSA representative, Mr Boomer, wrote to Mrs Ferguson putting the claimant's position to the Trust. The correspondence stated, among other things, that the claimant wished to take up the temporary post in the IAT Unit, but that the claimant was not prepared to consent to any reduction in her remuneration. It was also contended that the Trust did not have the legal capacity to make what were contended to be salary deductions and it was further stated in the letter that the claimant had advised her representative that Mrs Ferguson had spoken to the claimant since 3 September 2003 meeting and had confirmed that she would incur a reduction in salary if she took up the IAT Unit post. It was contended that more favourable treatment had been afforded to other named employees in allegedly comparable circumstances.

(n) On 8 September 2003 the claimant attended Occupational Health Service and was confirmed as being fit to commence work again, which she did with the IAT Unit on 10 September 2003. As a consequence of this, the claimant's work attracted remuneration at the standard level but had excluded therefrom the increments and allowances which have been referred to above. The claimant contended that this level of remuneration represented an ongoing deduction from wages properly due, which the respondent had made in an unauthorised and unlawful fashion.

(o) The tribunal heard some information regarding the material facts stated to be applicable to the two persons who had been named by the claimant as comparators and shall comment further upon that matter below.

(p) The tribunal did not need to determine any further material findings of fact for its decision in this case.

THE APPLICABLE LAW

5. In respect of the applicable law, Article 45 of the Employment Rights (Northern Ireland) Order 1996 ('the said 1996 Order') provides that:-

"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".

Article 45(3) of the said 1996 Order provides that:-

"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".

The Court of Appeal in England in the case of Delaney v Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned.

Article 59 of the said 1996 Order provides that the definition of "wages", in relation to a worker, means:-

"... any sums payable to the worker in connection with his employment including –

(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...",

subject to certain statutory exceptions which do not apply to the facts of this case.

Article 55 of the said 1996 Order provides that a worker may present a complaint to an industrial tribunal that his employer has made a deduction from his wages in contravention of Article 45.

Article 56 of the said 1996 Order provides that where a tribunal finds a complaint under Article 55 well-founded, it shall make a declaration to that effect and shall order the employer, in the case of a complaint under Article 55(1)(a), to pay to the worker the amount of any deduction made in contravention of Article 45.

THE TRIBUNAL'S DETERMINATION

6. Having applied the relevant principles of law contained in the foregoing statutory provisions to the findings of fact made by that tribunal, the tribunal notes the contentions of the parties and the submissions received. In this case, the claimant was unfortunate to have sustained a serious assault in the course of her employment. As a result, she remained off work for a considerable period of time and was paid, as her contract conditions provided, her normal full remuneration including weekend working and sleeping-in enhancements whilst absent.
7. One can understand the claimant's difficulty in returning to work, initially on grounds of the injuries received from which she was recovering, and then faced with the compounding factor that apparently the alleged assailant had been returned to the very place where the assault had occurred. As a consequence of this and recognising the difficulty, the claimant was approached by the Trust's senior personnel with a view to engaging in discussions with the aim of seeking out alternative placement options.
8. Although the tribunal finds it surprising that the Trust would not have had any policy to govern such a foreseeable eventuality, nonetheless it is noted that the Trust had no specific policy governing redeployment in such circumstances. Two options were proposed to the claimant, one of which was a Residential Social Worker post in Bawnmore Children's Home. If the claimant had accepted that Bawnmore posting her terms and conditions would have been precisely as before in terms of remuneration, with a change of location being the only variance.
9. The tribunal heard contentions from both parties in connection with the possible Bawnmore posting. The claimant's view was that Bawnmore was an unsuitable location where she would have been exposed, she felt, to certain difficulties and potential dangers and she explained to the tribunal the cause of her reluctance to take up that offer. For its part, the Trust contended that the claimant's view of the Bawnmore posting was not an accurate assessment of the post at all in terms of risks or potential difficulties; the post was entirely suitable. The tribunal had no way of adjudicating upon whether the claimant's reluctance to take up that posting was reasonable and grounded upon good cause or not, by assessing any objective factors as no persuasive evidence was adduced either way.
10. The other post, of course, was the IAT Unit post that was indeed subsequently taken up by the claimant. The issue in the case, as far as the tribunal sees it, is whether that post was taken up by the claimant 'under protest', as it were, or whether there was a consensual variation of the contract to provide for the claimant to be located in the IAT Unit with what was in effect reduced remuneration on account of the fact that the sleeping-in and the weekend working allowances were absent from the wage earned.
11. For the claimant, Mr Boomer submitted that the respondent owed to the claimant the responsibility to ensure that great care was taken to place the claimant in an alternative post if she could not return to the post where she had been previously stationed. If relocating the claimant involved an option, being the only acceptable option as far as the claimant was reasonably concerned, which resulted in a potential drop in remuneration, the Trust was under a responsibility to maintain the level of remuneration in a way it had indeed done during her period of sickness absence. Mr Boomer contended that the Trust had done that in the case of two other named individuals.
12. For the respondent, Mr Crothers submitted that the case was really very straightforward; there had been a consensual variation and the claimant had agreed quite willingly to be redeployed to a different post and was fully aware from an early stage that her remuneration would be affected. That had been made clear to the claimant in the telephone conversation with Mrs Ferguson which took place at the end of July 2003. The claimant had willingly agreed to a consensual variation of the contract terms and therefore the Trust was under no obligation whatsoever to enhance the remuneration upon the claimant's return. Furthermore, Mrs Ferguson had explained to the tribunal that the positions occupied by the two named comparators were entirely different.
13. Dealing with that final point first, the tribunal did hear from Mrs Ferguson about the two individuals whom the claimant contended had been in a similar situation to that occupied by her who it was claimed had been dealt with by protection of salary despite a redeployment. Having heard the evidence, the tribunal is satisfied that the two persons concerned were both in a quite materially different situation. The tribunal does not find that the respondent acted towards those two persons in a manner which was more favourable in terms of remuneration; the circumstances of the two are distinguishable.
14. The tribunal accepts without any difficulty the respondent's evidence to the effect that there was a discussion between Mrs Ferguson and the claimant which took place on 31 July 2003. On that date the claimant was alerted to the terms and conditions which would attach to the IAT Unit post, specifically to the potential loss of the sleeping-in and the weekend working allowances. Thereafter, the claimant would have been and would have remained alerted to these conditions attaching to that post, should she have chosen this at any time from the commencement of August 2003 and onwards. By the time the meeting between the claimant and her NIPSA representative and the Trust took place on 3 September 2003, the claimant had had in excess of one month to consider her position; this was not a case where the options were thrust upon the claimant, thereby leaving her with no opportunity properly to consider her position.
15. Faced with a decision as to whether or not the claimant voluntarily and willingly agreed to a consensual variation of contract in taking up the IAT Unit post or, alternatively, had a variation thrust upon her without consent by the respondent, the tribunal without doubt determines that the claimant did agree to a consensual variation of contract. The reason for that determination is grounded upon the evidence of the both the claimant and of the respondent's witness, Mrs Ferguson, the timing of the information imparted to the claimant and the opportunity afforded to her to consider the matter, and the fact that the claimant was clearly willing to be redeployed, the only issue being one of remuneration.
16. As the claimant was willing to be redeployed to the IAT Unit post, having been alerted to the remuneration situation for possibly two weeks at the stage the NIPSA letter of 15 August 2003 was written, and by over one month by the time the meeting of 3 September 2003 took place, the tribunal takes note of the fact that the claimant, in the light of that clear understanding, nonetheless confirmed her willingness to the IAT Unit deployment. Indeed, once certified fit to return to work, the claimant did return to work in the IAT Unit and she continued with her work for the Trust in that post.
17. The tribunal's finding is that, having agreed to return to the IAT Unit post, the claimant did not do so under protest. However, having so returned with the variation having been consensually agreed between her and the Trust, the claimant thereafter seems to have had second thoughts about the matter and thus she subsequently decided to issue these proceedings.
18. As the tribunal has found that there was a consensual variation of contract, the varied contract terms would be applicable, including any remuneration conditions. This claim relates to the differential between the claimant's wage before she went off sick and whilst she was on sick leave, and the claimant's wage when she returned to full health and thus to employment in the IAT Unit post. As the wage then paid in the IAT Unit post was the proper wage due under contract, there is no case made out of unlawful wage deductions.
19. Accordingly the claimant's complaint is dismissed, without further order.

Chairman:

Date and place of hearing: 13 December 2005, Belfast

Date decision recorded in register and issued to parties: