Hamilton & Ors v NHS Grampian

An employment tribunal may hear a claim for wages earned and due but unpaid under section 13 of the Employment Rights Act 1996. Section 13 does not provide a route for claiming damages for breach of contract, or for establishing an entitlement to be offered work so that wages may be earned.

Section 11 does not confer jurisdiction to interpret an employee’s contract or determine an alleged breach while employment continues. Multiple claimants using one ET1 must show that their claims arise from the same set of facts and must present each claimant’s own case sufficiently to give fair notice. Where claims are misconceived, the tribunal must consider making an expenses order.

The claimants, maintenance engineers and electricians employed by NHS Grampian, presented multiple claims concerning the withdrawal of regular overtime payments. The claims were brought under rule 1(7) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

The Employment Tribunal refused an amendment to Mr Girling’s claim, held that the claims were not competent claims for unauthorised deductions or section 11 declarations, dismissed the surviving claim and ordered the claimants to pay £10,000 expenses. The appeal concerned the proper characterisation of the claims, compliance with rule 1(7), refusal of amendment and the expenses order.

The appeal was dismissed. Consideration of the respondents’ application for expenses of the appeal was continued, subject to a schedule being lodged within 14 days.

1. Rule 1(7). Claims presented in one ET1 must arise from the same set of facts. Each claimant must also present his or her own claim, including the facts relied upon and the remedy sought, sufficiently to give fair notice. Although the ET1 initially suggested a common complaint about unpaid regular overtime, information before the Employment Tribunal showed that Mr Girling’s case concerned an alleged entitlement to be provided with four hours’ overtime work each Saturday. That was factually different from an alleged entitlement to overtime payments irrespective of work performed. His claim was not presented in the ET1 and did not comply with rule 1(7) (paras 56–63).
2. Section 13. A claim under section 13 of the Employment Rights Act 1996 requires wages to have been earned, to be due and payable, and then unpaid. It cannot be used to claim an entitlement to be provided with work, or to recover damages for an alleged breach of contract. Mr Girling’s case was therefore not a competent unlawful-deduction claim (paras 34–35, 64–65).
3. Section 11 and contractual interpretation. Section 11 does not authorise an employment tribunal to interpret an ongoing contract of employment or adjudicate on breach of contract. The apparent contractual framework, comprising the Agenda for Change terms and later overtime arrangements, meant that the proposed declaration would require interpretation of the contract. That issue lay with the ordinary courts (paras 36–40, 66–70).
4. Amendment and expenses. Refusal of the late and materially different amendment was within the Employment Judge’s discretion. Once the claims were found misconceived, the Employment Tribunal was required to consider an expenses order and was entitled, in the circumstances, to award £10,000. The appeal itself was also misconceived, justifying continued consideration of appeal expenses (paras 66, 71–74).

• Employment Tribunal, Aberdeen: refused the proposed amendment, dismissed Mr Girling’s surviving claim, and ordered the claimants to pay £10,000 expenses.
• Employment Appeal Tribunal: dismissed the appeal, continued consideration of expenses of the appeal, and directed the respondents to lodge an expenses schedule within 14 days.