THE INDUSTRIAL TRIBUNALS

CASE REF:	315/10	
	
CLAIMANT:			Terence James McKnight

RESPONDENT:		P C Media Solutions Ltd

DECISION

The decision of the tribunal is:-

That the correct identity of the respondent is P C Media Solutions Ltd and the title of the proceedings is amended accordingly.

That the respondent is hereby ordered to pay to the claimant the sum of £1,968.77            being a total sum of £1,406.26 in respect of unpaid wages together with an increase in the award of 40% in respect of the respondent’s failure to comply with the applicable statutory grievance procedure.

The tribunal hereby makes a declaration that the respondent has failed to give to the claimant itemised pay statements in accordance with Article 40 of the Order.  
However, the tribunal is unable to make a further award to the claimant in respect of unnotified deductions.

Constitution of Tribunal:

Chairman (sitting alone):		Ms J Turkington 

Appearances:

The claimant appeared and represented himself at the hearing.
 
The respondent had not lodged a response form and did not appear at the hearing.

The Claims

1.	The claimant brought the following claims before the tribunal:- 

(1)	A claim pursuant to Article 45 of the Order that unlawful deductions were made from the claimant’s pay.

(2)	A reference to determine whether the respondent failed to comply with the requirement to provide itemised pay statements in accordance with Article 40 of the Order.

The Issues

2.	The issues to be determined by the tribunal were:-

(1)	The correct identity of the respondent.
     	
(2)	Whether on any occasion the pay received by the claimant was less than the 		pay properly payable by the respondent pursuant to the claimant’s contract 		of employment.  In other words, whether there have been unlawful 				deductions from the claimant’s pay and, if so, the amount of such 				deductions.

(3)	Whether the respondent failed to provided itemised pay statements to the claimant in accordance with Article 40 of the Order.  If so, whether the tribunal would find that unnotified deductions were made from the pay of the claimant in the thirteen weeks immediately preceding the date of application for the reference.  If so, the tribunal would then have to decide whether to order the respondent to pay to the claimant the sum of such deductions or a lesser sum.
 
Disposal of the claim in the absence of the respondent

3.	The respondent had not presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing.  The tribunal was also satisfied that the Notice of Hearing had been sent to the respondent in good time before the hearing.  Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

4.	The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.

Facts of the Case

5.	Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-

6.		The claimant started his employment with the respondent on 5 October 2009.  The claimant was employed as a web designer.   In or around that date, the claimant received a statement of the main terms and conditions of his employment which stated that his employer was PC Media Solutions Ltd.
  
7.	The claimant’s gross salary was £16,000 per annum as set out in the statement of main terms and conditions of employment.  The claimant’s monthly pay was £1,333.33 gross, £1,064.00 net.

8.	At the end of October 2009, the claimant received his correct pay for that month, but he did not receive a pay statement.

9.		The claimant did not receive any pay for November 2009.  The respondent did furnish a pay cheque to the claimant, but the cheque was stopped before it was paid.  For the month of November, the claimant did receive a pay statement, but this did not specify the sums deducted from his wages in respect of statutory deductions or otherwise.

10.	The claimant worked on 1 and 2 December and then he resigned on 3 December 2009 with immediate effect.  The claimant did not receive any pay for these days.

11.	At the beginning of his employment, the claimant worked a lying week for which he did not receive any pay.  Clause 8 of the statement of main terms and conditions of employment stated this “will be re-credited to the employee on calculation of final pay”.  The claimant never received payment in respect of this lying week.
  
12.	On 5 December 2009, the claimant sent an email to the respondent setting out his contentions in respect of failure to pay wages and failure to provide pay slips.  The claimant also sent a formal letter to the respondent on 7 December indicating that he wished to raise a grievance in respect of these matters.  The respondent failed to make any response to either of the claimant’s written complaints.

13.	The claimant lodged his claim form with the tribunal on 10 February 2010.

Statement of Law

14.	By Article 45 of the Employment Rights (Northern Ireland) Order 2006 (“the Order”), an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract, or, the worker has previously signified in writing his consent to the making of the deduction.  Failure to pay wages on any occasion constitutes an unlawful deduction from wages.

15.	Pursuant to Article 40 of the Order, an employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.

16.	Where the employer does not give the employee a statement as required by Article 40, the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included in a statement so as to comply with the requirements of Article 40.

17.	By Article 44 (3) of the Order, where the tribunal finds that an employer has failed to give an employee an itemised pay statement in accordance with Article 40, it shall make a declaration to that effect.

Article 44(4) and (5) of the Order states as follows:- 

“(4) Where on a reference in the case of which paragraph (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made
. 
(5) For the purposes of paragraph (4) a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by Article 40 or 41.”

The tribunal does not have any discretion to extend the limitation period of 13 weeks referred to in Article 44(4).

18.	The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) is applicable in this case.  The standard statutory grievance procedure requires the employee to put his complaint in writing to the respondent and for the respondent to invite the employee to a meeting to discuss the grievance and then an appeal meeting.
  
19. 	Pursuant to Article 17 of the 2003 Order, where it appears to the tribunal that the non-completion of the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50 per cent.
       
          Conclusions

                	Correct identity of the respondent

20. 	The claimant accepted in the course of the hearing that his employer was 
P C Media Solutions Ltd.  This was also in accordance with the written statement of main terms and conditions of employment furnished by the respondent.  Accordingly, the tribunal concluded that the correct identity of the respondent was 
P C Media Solutions Ltd and the title of the proceedings is amended accordingly.

                	Unauthorised deductions from pay

21.		The tribunal was satisfied that the respondent made unauthorised deductions from the claimant’s pay since the claimant did not receive any pay for the month of November 2009 or for 1 and 2 December 2009.  Further, the claimant did not receive any pay for his lying week.
 
22.		The sums due to the claimant by the respondent are as follows:-

Net pay for the month of November 2009 = £1,064.00

Net pay for 1 and 2 December 2009 (2 working days) (22 working days per month) = 2/22 x £1,064.00 = £96.73

Net pay for lying week = £1,064.00 x 12 / 52 = £245.53

The total award in respect of unauthorised deductions from wages is therefore
£1,064.00 + £96.73 + £245.53= £1,406.26

23.	The claimant raised a written grievance with the respondent in accordance with step 1 of the statutory grievance procedure.  The respondent failed to make any response to this grievance.  The tribunal concluded that the respondent was wholly responsible for the non-completion of the applicable statutory procedure.  The tribunal took into account that the respondent took no steps whatsoever to seek to comply with the procedure.  Accordingly, the tribunal considers that it would be appropriate to increase its award by a figure towards the higher end of the scale between 10 and 50 per cent.  The tribunal concluded that the appropriate uplift in respect of unauthorised deductions from wages is 40%.

24.	The uplift in respect of non-completion of the statutory procedures is calculated as follows:-

Total award in respect of unauthorised deductions =  £1,406.26

Uplift of 40%                                                            =  £   562.51

Total uplifted award                                                 =  £1,968.77

Itemised pay statements

25. 	The tribunal was satisfied that, throughout his employment, the respondent had failed to provide the claimant with itemised pay statements as required by Article 40 and the tribunal makes a declaration to that effect.  Further, since the claimant did not receive itemised pay statements, the tribunal concluded that deductions in respect of PAYE income tax and national insurance were made from the claimant’s pay received for the month of October and these deductions were unnotified as defined in Article 44(5).  The tribunal has insufficient evidence to make a determination as to the particulars which ought to have been included in pay statements furnished to the claimant.

26.	The tribunal considered article 44(4) of the Order and found that the unnotified deductions made from the claimant’s pay for the month of October fell outside the period of 13 weeks preceding the date of the claimant’s claim to the tribunal (10 February 2010).   Therefore, the tribunal concluded that it did not have the power to make an award to the claimant in respect of unnotified deductions from his pay for the month of October.

27.		Since the claimant did not receive any pay for the month of November or for 1 and 2 December 2009, the tribunal considers that it could not be said that “unnotified 

		deductions were made from the pay” of the claimant.  Accordingly, the tribunal has, with considerable reluctance, concluded that it cannot make an award to the claimant pursuant to Article 44(4) in respect of failure to receive itemised pay statements for November and December 2009. 

28.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:    8 June 2010, Belfast.

Date decision recorded in register and issued to parties: