Steel v. London Borough of Haringey

A claim under Part II of the Employment Rights Act 1996 may include substantial factual and quantification disputes. It remains within the Employment Tribunal’s jurisdiction where the worker asserts an existing contractual entitlement to an identifiable sum properly payable on a particular pay occasion.

The jurisdiction does not extend to damages for misrepresentation or breach of contract merely because the claim arises from employment. A tribunal must identify the substance of an ambiguously pleaded claim and should not reject a sufficiently articulated claim to accrued contractual pay simply because an alternative, non-jurisdictional case is also advanced.

In construing a collective agreement, a tribunal should not insert a limitation into the agreed words without adequate contextual justification.

The claimant, a gardener employed by the respondent local authority, claimed that a job evaluation had placed her post on scale 4 and that she was consequently underpaid when her pay was adjusted in October 2010. Alternatively, she contended that, if her post had been evaluated at scale 3, clause 7[3] of an incorporated 2008 collective agreement required placement on the top spinal point of that scale.

The Employment Judge held that the first claim was outside the unlawful-deductions jurisdiction in Part II of the Employment Rights Act 1996. The Judge also rejected the claimant’s construction of clause 7[3]. The claimant appealed. The central issues were whether she had advanced a claim to existing wages properly payable, and whether the contractual construction ruling could stand.

1. Appeal allowed. The claimant’s case, although ambiguously expressed, sufficiently asserted that her job had already been effectively evaluated at scale 4 and that the incorporated collective agreement entitled her to the resulting pay from 1 April 2007. That was a claim to an identifiable sum properly payable in employment, not necessarily a claim for contractual damages.

2. The jurisdiction under Part II of the Employment Rights Act 1996 covers a deficiency in wages properly payable on a particular occasion. It excludes a claim which is properly characterised as damages for misrepresentation, wrongful dismissal, personal injury, or another breach of obligation. Its summary character does not prevent the Employment Tribunal from resolving substantial disputes of fact or quantification. The approach was consistent with Delaney v Staples [1991] IRLR 112 and Coors Brewers Ltd v Adcock [2007] IRLR 440.

3. The Employment Judge erred by dismissing the first claim in limine. The evidence and documents relied on by the claimant had not properly been addressed. Further, an evaluation undertaken before the collective agreement was finalised could in principle become effective under that agreement. The agreement and its background could support that conclusion.

4. The Judge’s interpretation of clause 7[3] could not be sustained. There was no sufficient basis for reading the word basic into the expression “loss of pay”, or for treating an apparent relationship with clause 7[4] as determinative without factual context. The claimant’s construction was more consistent with the ordinary meaning, but the EAT did not substitute a final construction.

5. Both claims were remitted to a different Employment Tribunal Judge. The remitted tribunal could receive relevant contextual evidence and arguments, and case management should address further disclosure, witness statements, and outstanding matters.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted both issues to a differently constituted Employment Tribunal.
• Employment Tribunal: Employment Judge Pettigrew, by a judgment sent on 31 May 2011, held the first claim outside Part II of the Employment Rights Act 1996 and rejected the claimant’s construction of clause 7[3] of the incorporated collective agreement.