Rogers v Dorothy Barley School

The Employment Appeal Tribunal held that an employment tribunal lacks jurisdiction to hear a breach of contract claim while the claimant remains employed. Instead, the Employment Tribunals (Extension of Jurisdiction) Order 1994 confines tribunal jurisdiction over contract claims to matters arising on or after termination. The tribunal further held that an unlawful deduction from wages complaint requires an actual deduction from pay to engage unlawful deduction jurisdiction. Costs were refused despite the appeal being misconceived, because no prior warning or costs schedule was given and the employer had contributed to the dispute.

The appellant was a school caretaker who occupied school accommodation. Water meters were installed and a water bill came to him. He claimed his contract provided that water for the caretaker's house would be paid by the employer. He brought a claim to the Employment Tribunals Service alleging breach of contract or unlawful deduction from wages.

An Employment Tribunal Judge (Prichard) returned the claim on 15 September 2011. The Judge found no unlawful deduction because no pay had been deducted. The Judge also found no contract claim jurisdiction because the appellant remained employed, citing Articles 3 and 4 of the Employment Tribunals (Extension of Jurisdiction) Order 1994.

The appellant appealed to the Employment Appeal Tribunal on a point of law. The central issue was whether the Employment Tribunals Service had jurisdiction to hear the complaint.

(1) The appeal is dismissed. The Employment Appeal Tribunal has no jurisdiction to entertain a breach of contract claim for a claimant who remains in employment. The tribunal's jurisdiction under the Employment Tribunals (Extension of Jurisdiction) Order 1994 is confined to contract matters arising on or after termination (see paras [5]; [6]).

(2) An unlawful deduction from wages claim requires that the billed amount has been deducted from pay. Where no deduction has occurred, the Employment Tribunal lacks jurisdiction to hear an unlawful deduction claim (see para [4]).

(3) The Employment Appeal Tribunal has discretion to order costs under rule 34A(1) of the Employment Appeal Tribunal Rules. The discretion was exercised not to order costs here. The respondent gave no warning that it would seek costs, gave no schedule of costs, and failed to resolve the underlying administrative error. Those features made a costs order inappropriate despite the appeal being misconceived (see paras [11]–[14]).

(4) Practical guidance: a claimant who remains employed should pursue contractual complaints through appropriate non-employment-tribunal forums. The Employment Tribunal procedure is not a vehicle for live contract claims unless the statutory extension applies at termination.

1. Employment Appeal Tribunal: Appeal dismissed by Recorder Luba QC. [2012] UKEAT 0013_12_1403.
2. Employment Tribunal (first instance): Claim returned by Employment Judge Prichard on 15 September 2011 for lack of jurisdiction under the Employment Tribunals (Extension of Jurisdiction) Order 1994 (Articles 3 and 4) and rules of procedure (Schedule 1, rule 3(5)).