Tattersall v Liverpool Women's NHS Foundation Trust

In an unlawful-deduction claim, the tribunal must determine the wages properly payable by construing all relevant express and implied contractual terms. A procedural failure to plead a developed defence does not itself justify setting aside the decision where the opposing party had fair notice, fully litigated the issue, and suffered no material prejudice.

A contractual requirement for health screening may be established by documentation incorporated into the employment arrangements. Alternatively, where patient protection in exposure-prone work is an obvious contractual priority and the requirement does not conflict with express terms, such a requirement may be implied.

The claimant was an obstetrician and gynaecologist engaged under a three-party arrangement with a university and the respondent Trust. His clinical duties included an on-call rota involving exposure-prone procedures. When he declined to provide health-screening evidence, the Trust removed him from clinical on-call work and instructed that the associated banding supplement should not be paid.

The Employment Tribunal dismissed his claim under section 13 of the Employment Rights Act 1996. It found that screening was an express contractual requirement and, alternatively, an implied term required for patient protection. The claimant appealed on the grounds that the contractual case had not been pleaded and that the Tribunal erred in finding express or implied terms.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the unlawful-deduction claim.

2. Under section 13 of the Employment Rights Act 1996, whether a deduction is unlawful depends on the wages properly payable. That required the Tribunal to ascertain the contractual position governing the disputed on-call payments, including both express and implied terms. The Tribunal was entitled to do so, consistently with [2007] EWCA Civ 714. Lady Wise declined to follow the contrary jurisdictional approach in Agarwal and followed the reasoning in Weatherilt.

3. The respondent's eventual contractual defence had not been properly pleaded. That procedural history was unsatisfactory, and proper amendment remains an important safeguard against unfair surprise. However, fair notice is the essential question. The claimant had written notice of the implied-term case while represented, and both parties had cross-examined and made detailed submissions on express and implied contractual terms. He identified no material prejudice or additional step that a formal pleading would have enabled him to take.

4. The Tribunal was entitled on the evidence to find that the health questionnaire was part of the Trust's procedures and contractual arrangements. It clearly required staff undertaking exposure-prone procedures to provide validated evidence of specified screening before health clearance. The screening requirement was compatible with, rather than inconsistent with, the stated occupational-health policy. Delay in supplying the relevant documents did not negate a continuing contractual obligation.

5. Alternatively, if the screening requirement were insufficiently clear to be express, it could be implied. The contractual documentation demonstrated that patient protection in exposure-prone work was an obvious priority. The implied term did not contradict any express term.

• Employment Appeal Tribunal: dismissed the claimant's appeal on 20 July 2017.
• Employment Tribunal: Employment Judge Robinson dismissed the claim for unlawful deductions from wages. No citation for that decision is stated in the judgment.