Somerset County Council v Chambers

An Employment Tribunal may permit a new jurisdictional point on appeal where it is a hard-edged point of law, requires no further evidence and may be determinative.

A claim for unauthorised deductions under Part II of the Employment Rights Act 1996 enforces sums to which the worker is already legally entitled. It does not permit an enquiry into what rate the worker ought to have received under a different contractual analysis. That is a contractual claim.

Employer contributions paid into a pension scheme are not wages payable to the worker under section 27(1)(a). They are not, however, excluded as payments by way of a pension under section 27(2)(c), which concerns payments out of the scheme on retirement.

The claimant had retired from full-time employment with the local authority and then worked as an ad hoc locum social worker. He was paid at a lower point on the pay scale, received holiday pay at that rate, and ceased to receive employer pension contributions after changes to the scheme rules.

The Employment Tribunal held that he had been continuously employed. It upheld claims for unauthorised deductions in respect of ordinary pay, holiday pay and pension contributions. The Council appealed and raised new jurisdictional objections. The central issue was whether the deductions jurisdiction under Part II of the Employment Rights Act 1996 could determine these asserted entitlements.

1. Appeal allowed. The Tribunal's orders, including its finding on employment status, were set aside except for the unresolved unsocial-hours element of holiday pay. That issue was returned to the Employment Tribunal for determination at the remedy hearing.

2. The new jurisdictional points were permitted. They required no further evidence, went directly to the Tribunal's jurisdiction, and were hard-edged legal points capable of disposing of the claims.

3. The claimant's ordinary-pay and consequential holiday-pay claims failed. The appointment letter fixed the locum rate at point 37 and he had been paid at that agreed rate. A Part II wages claim could not be used to decide what he ought to have been paid if treated as an employee. Any entitlement to a higher rate lay, if at all, in contract.

4. The claim for employer pension contributions also failed. Section 27(1)(a) concerns sums payable to the worker, not contributions paid by an employer to a pension provider. The Tribunal rejected the alternative argument that such contributions were excluded by section 27(2)(c): a contribution is a payment into a scheme, whereas that provision concerns a pension payment out on retirement.

5. It was unnecessary to decide whether the claimant was an employee, whether mutuality of obligation existed, or whether he had continuous service for scheme membership. The claimant was accepted to be a worker for the remaining holiday-pay issue.

• Employment Appeal Tribunal: Allowed the Council's appeal and set aside the Employment Tribunal's orders, save for the unsocial-hours holiday-pay issue.
• Employment Tribunal: By a reserved judgment with reasons dated 14 May 2012, upheld claims for unauthorised deductions from wages and adjourned remedy.