Camden Primary Care Trust v Atchoe

For the purposes of section 13(3) of the Employment Rights Act 1996, wages are "properly payable" only after considering all express and implied contractual terms. A payment for being on an on-call roster is not payable where the employee is not on that roster and the employer was contractually entitled, or required, to remove the employee from it on health and safety grounds.

An employee's contractual obligation to contribute to an on-call system does not, without more, oblige the employer to maintain the employee on the roster. A tribunal's failure to invite submissions on an authority is not automatically an error of law; an appeal on that basis requires substantial unfairness or material injustice.

The employee was contractually required to contribute to an out-of-hours on-call system. The employer removed him from the on-call roster while seeking proof of his technical qualifications. It paid neither the stand-by allowance nor call-out payments which he would have received on the roster.

An Employment Tribunal held that the removal was justified on health and safety grounds but that withholding the payments was an unlawful deduction from wages. The Employment Appeal Tribunal allowed the employer's appeal and substituted a finding that the complaint was not well founded. The employee appealed to the Court of Appeal, which considered whether the on-call payments were wages properly payable under section 13(3) of the Employment Rights Act 1996.

Disposition

The Court of Appeal unanimously dismissed the employee's appeal. The Employment Appeal Tribunal had correctly concluded that there had been no unauthorised deduction from wages.

1. The proper starting point under section 13(3) of the Employment Rights Act 1996 was to identify the wages properly payable under all relevant express and implied terms of the contract. The Employment Tribunal had erred by treating the sums which the employee would have earned on the roster as payable without giving effect to the implied health and safety term.

2. The Whitley Council terms made stand-by and call-out payments conditional on the technician being on the on-call roster and available to be called out. They were separate from ordinary contractual salary. Since the Employment Tribunal had found, without challenge, that the employer was entitled and bound to remove the employee from the roster pending clarification of his qualifications, those payments were not properly payable.

3. The express duty to contribute to the on-call system did not itself impose an obligation on the employer to keep a technician on the roster. If any such obligation existed, it was in any event overridden by the implied term requiring removal on the established health and safety grounds. The resulting loss of roster payments was therefore not a deduction within section 13(3).

4. The Court added, obiter, that Albion Hotel did not establish an absolute rule that an Employment Tribunal's reliance on an authority without inviting submissions necessarily constituted an error of law. As explained by Stanley Cole Wainflete Ltd v Sheridan, [2003] IRLR 885, substantial unfairness or material injustice must result. It was unnecessary to decide that issue in this appeal.

The appeal was dismissed with costs assessed at £10,000.

• Court of Appeal (Civil Division): dismissed the employee's appeal in [2007] EWCA Civ 714 and upheld the Employment Appeal Tribunal's substituted finding that the unlawful-deduction complaint was not well founded.
• Employment Appeal Tribunal: allowed the employer's appeal on 22 August 2006, set aside the Employment Tribunal's finding of an unauthorised deduction, and substituted a finding that the complaint was not well founded.
• Employment Tribunal: held that the employer was entitled to remove the employee from the on-call roster on health and safety grounds, but held that non-payment of the roster sums was an unauthorised deduction from wages.