Appeal No. EAT/278/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 31 January 1994

	Before

	THE HONOURABLE MR JUSTICE WATERHOUSE

	MR E HAMMOND OBE

	MR T THOMAS CBE

MISS A BLEAZARD	APPELLANT

MANCHESTER CENTRAL HOSPITALS & COMMUNITY	RESPONDENTS
CARE (NHS) TRUST

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR THOMAS KIBLING
(OF COUNSEL)
Regional Solicitor
Royal College of Nursing
3 Lisbon Square
Leed
LS1 4LY

For the Respondents	NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE 
RESPONDENTS

	MR JUSTICE WATERHOUSE:  This appeal from a decision of an Industrial Tribunal sitting at Manchester on 11 January 1993, raises a very short point about the interpretation of section 5(3) of the Wages Act 1986. 

	In brief the position is that on 28 April 1992 the Appellant presented an Originating Application complaining that she had suffered unlawful deductions of salary under the Wages Act 1986.  The unanimous decision of the Industrial Tribunal, however, was that it had no jurisdiction to hear the complaint and that decision was based upon the Tribunal's interpretation of the provisions of section 5 of the Act of 1986.

	The material facts in relation to the Appellant's complaint were set out in paragraph 7 of the Industrial Tribunal's decision and may be summarised as follows.

	The Appellant, who is now 30 years old, was employed by the Respondents, and is still so employed, as a member of their nursing staff at the Manchester Royal Infirmary.  On 1 August 1991 she was promoted from an E grade staff nurse post to that of F grade sister.  On her promotion she was informed that she would be paid, because of her experience, on the second incremental point of the salary appropriate to F grade.  That is a scale authorised by the relevant Whitley Council as payable from 1 April 1991.  Quite shortly after her promotion a letter was sent by the Respondents' operating theatre manager to the Respondents' finance department giving instructions to pay the Appellant on that scale but, when the matter had been considered by the finance department, she was informed on or about 9 September that it was not possible for her to be paid that salary.  She was told that she could be paid only the salary shown as the first incremental point for F grade.

	That decision was communicated to the Manchester College of Nursing by the Respondents by letter dated 30 September 1991.  In that letter it was stated that the Respondents had no discretion to pay the Appellant at the higher rate prescribed as the second incremental point.  An apology was made for the oversight and, in recognition of the offer that had been made, the Respondents proposed to pay the Appellant at the second point rate of the scale for a period of one month from 1 August to 31 August, thereafter from 1 September 1991 at the rate for the first incremental point.

	The Appellant was dissatisfied with the decision that had been communicated to her and intimated that she had in mind to invoke the grievance procedure.  That was her view before the Respondents' letter of 30 September 1991 was sent to the Manchester College.  Having learnt of that letter, however, she decided that she would accept the Respondents' proposal and she so indicated by a letter dated 25 October 1991.  That meant that she would receive from 1 September 1991 a salary of £13,320 pa in contrast to a salary of £13,885 pa on the second incremental point.

	To the Appellant's astonishment she received, by way of response to her acceptance letter, a further letter from the Respondents dated 30 October 1991 informing her that there had again been a mistake.  The decision, according to this last letter, was that the Appellant should be paid at the minimum rate for F grade and not at the rate fixed as the first incremental point.  The letter concluded:

		"In short, the offer is

		1 August 1991 to 31 August 1991  	-  £13,320
		1 September 1991 and thereafter	-  £12,755

		I hope this clarifies the situation to you."

It will be noted that, by that letter, the Respondents were not only dealing with the rate from 1 September 1991 but were also reducing the payment for August 1991 from the rate appropriate for incremental point 2 to that for incremental point 1.

	Having received that last letter, the Appellant indicated in early 1991 that she would be pursuing her grievance through the agreed grievance procedure and, in particular, in relation to the failure of the Respondents to pay her the salary that they had agreed to pay her, and which she, in October 1991, had said that she would accept.  The grievance procedure having been invoked, the hearing would normally have taken place within a comparatively short time but, due to administrative difficulties, it did not take place until March 1992.  The result was communicated to the Appellant's representative, Mr Mullaney, on 19 March 1992 and it was following that decision that the Originating Application was presented.  

	Having set out these facts, the Chairman of the Industrial Tribunal went on in the succeeding paragraph (incorrectly numbered 12) of the Statement of Reasons to state the following:

		"The applicant's complaint had been brought under the provisions of the Wages Act 1986 and, in particular, Section 5.  Her complaint was that the respondents, in failing to pay her from the date of her appointment at the salary level which she claimed she had been offered and accepted in late October 1991, ie at one incremental point above the minimum salary level for Grade F, had made unauthorised deductions from her wages."

	It seems clear from the way in which the decision of the Industrial Tribunal is stated, and as a matter of common sense, that the Industrial Tribunal understood full well that, as a result of the exchanges that have been summarised, the Appellant had continued to work as an F grade sister in the operating theatre and had continued to suffer the deductions of which she complained: in other words in accordance with the terms of the letter from the Respondents to the Appellant dated 30 October 1991.

	Nevertheless, in dealing with the jurisdictional point, the Industrial Tribunal went on to consider only the provisions of section 5(2) of the Act of 1986.  That subsection provides:

		"An industrial tribunal shall not entertain a complaint under this section unless it is presented within the period of three months beginning with -

		(a)	in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or
		(b)	in the case of a complaint relating to a payment received by the employer, the date when the payment was received,

		or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the relevant period of three months."

	What is surprising is that no reference was made in the full reasons for the decision signed by the Chairman to the provisions of section 5(3) of the Act of 1986.  In the full reasons the Chairman simply went on to record that the Tribunal were satisfied that the Appellant's complaint had not been presented within the period of 3 months from the date of payment of the wages from which the alleged deduction had been made, that is, "end of October 1991".  The Tribunal then went on to consider whether or not it had been reasonably practicable for the Appellant to fulfil the time requirement prescribed by the Act and concluded that it had been so practicable.  Accordingly, the unanimous decision of the Tribunal was that it had no jurisdiction to hear the complaint on its merits.

	It is unnecessary for the purpose of the Appeal Tribunal's decision to decide whether or not it is strictly correct to say that the complaint of the Applicant first arose at the end of October 1991.  What is clear is that the Industrial Tribunal was purporting to make its own decision on the basis of all the facts before it.

	The Appellant was represented at the hearing by Mr Mullaney, a representative of her trade union, and the Respondents were represented by their director of personnel.  In these circumstances it is readily understandable that the Industrial Tribunal's attention may not have been specifically directed to the provisions of section 5(3) of the Act of 1986.  Nevertheless, we regard it as a matter of considerable regret that the Tribunal did not itself consider the clear words of that subsection, which appear in the Act under the heading of section 5 - Complaints to industrial tribunals in respect of unauthorised deductions etc.  Subsection (3) provides:

		"Where a complaint is brought in respect of

		(a)	a series of deductions or payments, or
		(b)	a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 3(4) but received by the employer on different dates,

		subsection (2) shall be read as referring to the last deduction or payment in the series or to the last of the payments so received (as the case may require)."

	It is perfectly obvious from on the history related by the Appellant that she was the alleged victim of a series of unlawful deductions as a result of the decision of the Respondents communicated to her on 30 October 1991.  There was no suggestion that she had not continued to work as a theatre sister or that the deductions had not been made each month from the end of October 1991 onwards.

	The wording of subsection 5(3) is quite clear but, if there was any doubt about its proper interpretation, that matter was dealt with expressly by this Appeal Tribunal in the case of Reid v Camphill Engravers [1990] IRLR 435.  That too was a case of alleged underpayments of wages.  The alleged unlawful wages had been paid over a very considerable period and had been less than the statutory minimum permitted wage.  Two points arose on the hearing of the appeal by the Employment Appeal Tribunal in Scotland.  The first, which is not relevant to the present case, was whether or not the employee could properly be held to have affirmed a contract for a lower wage by reason of the events that had happened.  Secondly, the interpretation of section 5 of the Wages Act 1986 was in issue having regard to the time limits prescribed by that section.

	The Appeal Tribunal held that, where there was a series of deductions within the meaning of section 5(3), as there had been in that case, the three months period ran from the last deduction in the series.  Accordingly, the Industrial Tribunal had been wrong in that particular case to limit their award to a period of three months so that the matter had to be remitted to them for further consideration.  The specific point about the interpretation of section 5(3) was dealt with by Lord Mayfield in the judgment of the Tribunal at page 440H to 441B.  

	It follows, in our judgment, that there was a plain error of law on the part of the Industrial Tribunal in this case.  On the basis of the agreed facts before the Tribunal there was no question of the Originating Application being statute barred.  On the contrary, deductions were continuing to be made.  For the purposes of the Originating Application presented on 28 April 1992, the last in the series of deductions up to that point must have been made on 31 March 1992 and the complaint was brought within the three month period.

	At the hearing before this Appeal Tribunal the Respondents have not been represented and have not presented any argument directed to section 5(3) of the Act of 1986.  We have been greatly assisted in deciding the matter by the Skeleton Submission on behalf of the Appellant presented by her Counsel, Mr Kibling.  In that submission Mr Kibling has dealt with a potential alternative point that might be taken on behalf of the Respondents, namely, that since the interpretation of section 5(3) was not expressly argued before the Industrial Tribunal, it should not be open to the Appellant to raise the point now before the Appeal Tribunal.  We should say, however, that we regard ourselves bound by the decision of this Appeal Tribunal in House v Emerson Electric Industrial Controls [1980] ICR 795.  The point that arises as to the interpretation of section 5(3) of the Act of 1986 goes to the heart of the Industrial Tribunal's jurisdiction and, in our judgment, it is right that the point should be argued before the Appeal Tribunal on that footing whether or not the point was adverted to in the course of the hearing below.  If fresh evidence of a limited kind had been necessary to permit the Appellant to argue the point, we would have been disposed to permit the Appellant to adduce that additional evidence.  In our judgment however, the facts before the Tribunal below were fully sufficient to enable the point to be properly considered and decided so that it is not necessary for us to exercise any discretion in that respect.

	It follows that the appeal must be allowed and the Originating Application of the Appellant must be remitted for hearing to a freshly constituted Industrial Tribunal.