Cartwright & Ors v Tetrad Ltd (Unlawful Deduction from Wages)

An employee may accept a unilateral contractual pay reduction by conduct where continued work without protest is, in all the circumstances, properly treated as acceptance of the altered pay term. The question is whether the conduct is referable only to acceptance of the variation. A tribunal may infer acceptance where reduced pay is received and neither the employees nor their union make a formal objection for a substantial period.

Apparent bias requires an objective assessment. Remarks which are unhelpful but irrelevant to the issues, and which express sympathy for both sides, do not establish a real possibility of bias.

The employer, facing financial difficulties, imposed a 5% pay reduction across its unionised workforce. The claimants did not expressly agree. Reduced pay first appeared on 10 May 2012. Neither the employees nor the union formally objected until the union solicitors' letter of 23 October 2012.

The Manchester Employment Tribunal dismissed claims for unlawful deductions from wages in a judgment promulgated on 10 April 2014. It held that the workforce had impliedly accepted the variation. The claimants appealed, challenging that conclusion and alleging apparent bias arising from remarks made by the Employment Judge.

1. Appeal dismissed. The Employment Judge was entitled to find that the claimants had accepted the 5% pay reduction by conduct. Although there was no express agreement, the reduction took effect on 30 April 2012 and appeared in pay statements from 10 May. No formal union objection, grievance, or individual objection was made until 23 October.
2. Applying the approach in Solectron (Scotland) Ltd v Roper, the relevant inquiry was whether continued work without protest, viewed in all the circumstances, justified an inference that the employees accepted the altered pay term. On the facts found, it did. The alleged restriction on union consultation meetings did not materially affect that conclusion. The first three grounds of appeal therefore failed.
3. The allegation of apparent bias also failed. Applying Porter v Magill, the question was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The Employment Judge's remarks about the employer's financial difficulty, the employees' continued jobs, and possible restoration of pay were unhelpful but irrelevant to the issues decided. They expressed sympathy for both employer and employees and would not objectively suggest bias in favour of the employer.

• Employment Appeal Tribunal: Dismissed the claimants' appeal.
• Manchester Employment Tribunal: In a judgment promulgated on 10 April 2014, dismissed the claims for unlawful deductions from wages.