THE INDUSTRIAL TRIBUNALS 

CASE REF:    302/10

CLAIMANT:       	Stephen Carey			

RESPONDENTS:	1.  Department of Finance & Personnel 
	2.  Department for Social Development 			

DECISION

The decision of the tribunal is that the claimant’s claim for unlawful deduction from wages should be dismissed as the claim was presented to the tribunal outside the time limit allowed and the tribunal has no grounds to extend the time allowed.

Constitution of Tribunal:		

Chairman (sitting alone):		Mr Patrick Cross 		

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr M Wolfe Barrister-at-Law, instructed by the Departmental Solicitors. 

The Findings of Fact

1. 	The claimant commenced employment with the first named respondent (hereinafter called “DFP”), on 1 December 2003.

2. 	Having discussed his pay scale with colleagues at his work and carried out some investigation into the scales of pay and the different requirements and qualifications needed to move from one point on the entry scale to a higher point, the claimant came to the view that he had been recruited on the wrong scale. On 3 November 2004, the claimant wrote to the pay section of DFP pointing out that his pay was based on an incorrect scale.  In the letter the claimant stated:-

		“I have a degree in computing related discipline which has more than the required 30% computing content. When I became aware that this entitles me to an extra salary step, I contacted my Pay Section on the 24th March to inform them”

He then set out the arguments and evidence that he relied upon to back up his contention, that he was being underpaid and ended the letter as follows:-

“I request that the salary step be applied to my next pay slip, including backdated pay from my starting day.

As this matter has been outstanding for quite some time an early response would be appreciated.”

3. 	On 17 December 2004, the claimant received a letter from the appropriate section of DFP, stating that the matter had been examined and that in the opinion of DFP the claimant was in receipt of the correct salary, and that no adjustment would be made.

4.	From August 2006 the pay scale which theretofore had applied to the claimant was assimilated onto a new negotiated scale which was the same as the scale which the claimant had argued, should have been applied to him from his starting date. Thus from August 2006 the claimant had no further complaint of unlawful deduction from wages.

5. 	The claimant continued to investigate his claim concerning wrongful deductions as a result of his being, as he saw it, on the wrong scale. He raised freedom of information requests and as a result got further information which convinced him that he was correct in his arguments. He finally presented his complaint to the tribunal on 5 February 2010.

6. 	The claimant was not suffering any kind of disability or illness that might explain the delay in commencing his claim in the tribunal. His evidence to the tribunal was that he felt that he was being mislead by the officials in DFP and as a result was not aware of the true situation regarding his grading, between the start of his employment and when the grading issue was no longer an issue in August 2006. 

The Law

7. 	Article 55 Of The Employment Rights (Northern Ireland) Order 1996 (hereinafter called “the 1996 Order”), states that an employee who claims that his employer has made an unlawful deduction from his wages may make a claim regarding such a deduction to an industrial tribunal. Article 55(2) sets out the time limit in relation to such a claim.

“55(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with - 

(a)	in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b)	in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3) 	Where a complaint is brought under this Article in respect of – 

(a)	a series of deductions or payments, or

(b)	a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates,

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

	(4) 	Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”

Decision

8. 	The claimant became aware of the respondent’s refusal to review his grading on receipt of the letter to that effect, of 17 December 2004. He could have commenced tribunal proceedings at any time from that date, until the expiration of three months from the date of the last payment to him which in his view was incorrect. The last such payment was received by the claimant in August 2006 and so a complaint under Article 55 of the 1996 Order should have been presented to the tribunal within 3 months of the last disputed payment during that month. As the complaint was only presented in 2010, the tribunal can only allow it to proceed if it considers that it was not “reasonably practicable for the complaint under this Article to be presented before the end of the relevant period of three months.”

9.  	The claimant argued that he only became aware of the evidence of his entitlement to the higher grade when he got certain information from the respondent, as a result of his applications under the freedom of information procedures, just before he presented his complaint. However the claim was clearly made in the letter he wrote to DFP on 3 November 2004. That letter which was long and detailed on the basis of the claim set out in full the arguments that the claimant wished to have considered to back up the claim. The information that was subsequently gleaned from the freedom of information procedure merely reinforced the points that the claimant had already made in the letter. 

10.	The tribunal holds that the claimant had by 3 November 2004 formed the opinion that he was on the wrong pay scale. Everything he discovered after that date reinforced this view and would have been additional evidence to support his claim. However the tribunal holds that the claimant is not entitled to withhold the presentation of his claim until he has accumulated all the evidence that he considers necessary to support a claim. It is the requirement of the 1996 Order that a claimant should present his claim within three months of discovering the problem. There are then procedures, such as applications for further information, discovery of documents and questionnaires, all of which procedures were adopted by the claimant in this case, which are available to ascertain the particulars of evidence, that a claimant may need to reinforce the evidence that he had available when he first presented his claim.

11. 	In this case the claimant had sufficient evidence in November 2004 to present a claim and there is, in the opinion of the tribunal, no reason why it would not have been practicable for the claim to be presented in time.  Consequently the tribunal cannot extend the time limit for the benefit of the claimant. Therefore the claimant’s claim is dismissed.    

Chairman:

Date and place of hearing:       13 January 2011, Belfast.

Date decision recorded in register and issued to parties: