Appeal No.	EAT/0933/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 2001

Before
HIS HONOUR JUDGE D PUGSLEY
MR D CHADWICK
MS B SWITZER

MISS A M THACKRAY	APPELLANT

AINDALE BMS LD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	

JUDGE D PUGSLEY
1.	In this case the appellant has not appeared, she has unfortunately been unable to come. The case concerns the case of unlawful deduction of a sum of £587.50 from her wages. This is a case where it is before us for a preliminary hearing to ascertain whether we can identify any issue of law. 

2.	The findings of the Tribunal, in that it relates to the question of the claim under the Wages Act, are set out in paragraph 2 of the decision which can be summarised thus:- 

“The Applicant had been employed by the Respondents from 29th June 1999. On 26th November 2000 she handed a letter of resignation to Mr Jackson to be effective from 1st December 2000. Her last working day was 19th December as she had been told that she was not required to work for the remainder of her notice period. Her payslip was issued saying she had been paid up to the 31st December 2000 but the sum of £587.50 was deducted from the amount due in respect of a training course which the Applicant had attended in June 2000. The Applicant said that this was an unlawful deduction because although there is agreement made on 9th June 2000 required her to reimburse the Respondent, as the Respondent obtained a grant or subsidy towards her attendance on the course, credit should be given for the amount of such grant or subsidy.” 

She also complained about holiday pay with which we are not concerned. 

3.	The Tribunal say, and it was a chairman sitting alone, in paragraph 3 

“I am satisfied that the Respondent was entitled under the agreement entered into to make the deduction of the cost of the course fee. The agreement was that the Respondent would meet the full cost of the course as regards the Applicant, ie she would have no payment to make. How the Respondent funded the cost was a matter for it. I do not suppose the Applicant gave a thought to how the funding was arranged when she signed the agreement in June. As the deduction made fully satisfies the provisions of s. 13 and 14 of the Employment Rights Act 1996, the deduction was lawful” 

4.	With respect to the learned chairman, we are not quite so sure that life is quite so simple. The case of Potter v Hunt Contracts [1992] ICR 337 is, we think, a case in issue where the Employment Appeal Tribunal ruled a deduction made from wages of the Applicant, in that case, to cover the cost of the heavy goods vehicle licence was not lawful under the Wages Act as the agreement for repayment of the loan did not state with sufficient clarity that the deduction would be made from the Appellant’s wages. We think that there is an arguable ground here. 

5.	Moreover we are, if we may say so, somewhat concerned at the way in which the Tribunal dismissed the Applicant’s contentions about the cost to the employer. It is, at least, arguable that the fact of whether or not he had received some reimbursement from some other source, as she alleged, and could reclaim the VAT are matters that raise, as we think, a possible arguable ground. The fact there was agreement for her to repay a particular sum does not mean, it seems to us, that the Tribunal was absolved from the responsibility of seeing whether, in law, a sum was properly due and, without going into needless technicality, not merely a penalty for non-compliance. 

6.	The very essence of the legislation of the Wages Act was to ensure that a pre-emptive deduction of money by an employer did not mean that the employer was being judge, jury and bailiff exercising distress at the same time and the employee was precluded from raising any issue as to whether that sum was properly payable. 

7.	In those circumstances, we say that we do consider that there is an arguable ground on the grounds of appeal raised and in the view of the case that the Applicant was putting before the Tribunal she has leave, if she so wishes, to amend within 21 days hereof the delivery of this judgment, to include the ground of appeal as to the issue raised as to the whether the sum was properly payable and if so how much. 

8.	On a more robust level, it is our strong view, endorsed by all of us, that we hope the parties can have discussions about this case. The amount of money is not great. The cost to the public purse of setting up courts and Tribunals to resolve issues such as this is very considerable and there are many more deserving claims on the public purse than the legal profession. 

9.	Further, if we may do so on a simple pragmatic view, the sheer cost to the parties, irrespective of, if one may say, the inconvenience of the parties, given the state of our national rail system and our roads, is such that it is likely to be a very expensive luxury for them to come to London from Yorkshire. 

10.	In the circumstances, when one thinks of the rail cost, loss of wages and the like, we do hope that those appearing before Tribunals will ask the simple question, is it worth it, and a short discussion might lead to a resolution to these matters which is much more satisfactory than an appearance before this Tribunal and possibly, in due course, another Employment Tribunal. Nevertheless, in our opinion, there are arguable grounds of appeal. This is a category C case which we estimate should take half a day.