Fadipe v Fairstaff Agency Ltd

An agreed wage rate is not converted into an unauthorised deduction merely because a worker later contends that the duties warranted a higher rate. Where the worker consented to the rate for the assignment and was paid that rate, a dispute about job classification and the proper rate generally falls outside section 13 of the Employment Rights Act 1996, particularly where the dispute arose promptly during a short assignment. The position may differ after prolonged employment if evidence shows that the work was in fact a higher-rated role. For section 104 to apply, the assertion of a relevant statutory right must be the reason for dismissal.

Mr Fadipe worked through Fairstaff Agency Ltd on temporary assignments. He was paid £7.73 per hour for an initial assignment and agreed to work on a later assignment at £6.18 per hour. After starting the second assignment, he contended that the duties were materially different from those represented and warranted a higher rate. The assignment was terminated following an alleged complaint about his work.

The Employment Tribunal dismissed his complaints of unlawful deduction from wages and unfair dismissal. The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing before Hooper J on 26 March 2001. Mr Fadipe applied to the Court of Appeal for permission to appeal. The central issue was whether payment of the agreed lower rate could amount to an unauthorised deduction under section 13 and, consequently, engage section 104 of the Employment Rights Act 1996.

1. Application refused. The Court of Appeal held that there was no arguable case that section 13 of the Employment Rights Act 1996 applied. Mr Fadipe had agreed to work as a clerk at £6.18 per hour and had been paid that amount.
2. The statutory provisions concerning unauthorised deductions address a deficiency between wages properly payable and wages actually paid. They do not ordinarily address a dispute arising immediately during a short assignment about whether the work performed was properly classified as clerical work or deserved a higher rate. Payment of the agreed rate was therefore not a deduction from wages.
3. The court indicated that the position might be different after a prolonged period of employment, where evidence showed that the work actually performed was that of a ward administrator or another higher-rated role. That observation was not necessary to the disposal of the application.
4. The evidence concerning whether Mr Fadipe had been misled and whether the hospital contact had made a complaint was primarily factual. The Tribunal was entitled to accept the employer’s evidence that the complaint was the reason for termination. In any event, the Tribunal’s findings did not establish that dismissal resulted from an assertion of a relevant statutory right.
5. Since no arguable unlawful deduction had been shown, section 104 was not brought into operation. The Employment Tribunal and the Employment Appeal Tribunal had therefore reached conclusions which disclosed no arguable ground of appeal.

• Court of Appeal (Civil Division) — permission to appeal refused on 3 July 2001: [2001] EWCA Civ 1101.
• Employment Appeal Tribunal — appeal dismissed at a preliminary hearing before Hooper J on 26 March 2001.
• Employment Tribunal — complaints of unlawful deduction from wages and unfair dismissal unanimously dismissed; decision notified on 20 November 2000.