Appeal No. UKEAT/0112/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 June 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR D J JENKINS OBE
MRS J M MATTHIAS

DELMON PIZZA	APPELLANT

MR I MELCIOIU
	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR D MEREDITH
(Representative)
Peninsula Business Services Ltd
Litigation Department
Riverside
New Bailey Street
MANCHESTER
M3 5PB	
For the Respondent	MR J WIGGINS
(Solicitor)
Mary Ward Legal Centre
26-27 Boswell Street
LONDON
WC1N 3JZ	

SUMMARY

Unlawful Deduction from Wages
Victimisation ~Discrimination

The employment tribunal found that there had been an unlawful deduction from wages and victimisation discrimination.  EAT held that they were entitled to reach that conclusion on the evidence before them.  

.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	The Employment Tribunal awarded the claimant compensation for discrimination by way of victimisation contrary to section 2 of the Race Relations Act and regulation 4 of the Employment Equality (Age) Regulations 2006; and also found there had been an unlawful deduction from the claimant’s wages. The employers appeal against those conclusions.

2.	The background is as follows. The claimant (as we will continue to call him, although he is the respondent before us) commenced employment with the employers on 24 November 2001. He was a pizza delivery driver, using his own motor bicycle. He received a basic rate of pay plus mileage for the use of the motor cycle. Some of the claimant’s colleagues used motor cycles owned by the employers.

3.	On 19 February 2007 the claimant was sent home mid-way through his shift. He had been requested by his manager Mr Boris Hromis to provide insurance documentation. The claimant reported for work the next day, but was again sent home. He subsequently provided the documents on 21 February. The manager did not accept that this was valid insurance and therefore he continued to refuse to allow the claimant to work. The claimant attended work on a number of days thereafter but was refused work by the manager. 

4.	A copy of the certificate of insurance was forwarded to the employer’s insurance brokers. They advised by telephone on 28 February that the claimant’s insurance did not cover him to use his motor cycle to deliver pizzas. The Tribunal found that the advice was in fact wrong, although it is not disputed that that was the genuine advice given to the manager on that date.  The certificate itself provided that the bike could be used by the claimant in connection with his business.  There was attached to it a policy schedule which identified the claimant’s occupation as fast food delivery driver.  It is not clear to us from the decision itself whether the employer’s broker was given the schedule or not.

5.	The claimant requested that he be allowed to use one of the respondent’s vehicles, which was properly insured, but this request was refused. 

6.	On 28 February 2007 the claimant lodged a grievance. He raised a large number of matters which included that fact that he had been discriminated against because of his race and his age (he was a Romanian and aged 67). A response was received by Mr Al-Uzri by e-mail dated 1 March acknowledging receipt of the grievance and indicating that it would be taken seriously and investigated thoroughly. The claimant heard nothing before going on annual leave on 11 March. His leave continued until 30 March although he was available for a meeting during that period.

7.	The claimant, with the assistance of his son, wrote to Mr Al-Uzri on 30 March. He complained that he was now being persecuted by his manager for putting in an official grievance. Nothing happened and a further letter was sent by the claimant’s son to Mr Al-Uzri on 20 April. In that letter it is recorded that Boris Hromis had said that he would not allow the claimant to return to work until the grievance had been resolved. The letter also records Boris as saying that “my dad will regret submitting the official grievance”. There was a further complaint that the claimant had not received his holiday pay.

8.	The claimant presented his complaint to the Employment Tribunal on 18 May. This caused the employers to follow up the grievance and the hearing was set for 31 May. The claimant’s allegations of discrimination were rejected and the grievance was dismissed. The claimant was notified of this on 13 June 2007. There was then a further meeting on 20 June to discuss the insurance position and during the course of this meeting a telephone call was made to the claimant’s insurers. The Tribunal records that his broker confirmed that the claimant’s insurance policy did, in fact, cover him for pizza delivery.  Mr Al-Uzri then ordered the claimant to be allowed to work immediately and he did so, using his own motor cycle, on the following day.

9.	The dispute about holiday pay was resolved, but the claimant received no pay from 20 February until 19 June. The employers’ case is that the claimant was not suspended but he was not permitted to work because they did not believe that he had the relevant insurance. They say that they were not allowed to permit him to drive whilst he was uninsured. The claimant’s case was that he always had the insurance.  He had provided it when requested, and in the circumstances the employers had no good reason for refusing to pay him; he was at all stages ready and willing to work and it was the employers who were stopping him doing so.

Issues before the Tribunal.
10.	The first issue for the Tribunal to determine was whether the claimant was entitled to be paid. If he was not then he would not have a claim for deduction from wages, even if he were to have some damages claim arising out of the admitted delay in handling his grievance.  It is a condition precedent to a deductions claim that there is an obligation actually to pay wages.  A failure to pay the amount due is then treated as a deduction: see section 13(3) of the Employment Rights Act 1996.

11.	  The Tribunal concluded that the claimant was entitled to be paid in the circumstances. The Tribunal reasoned that since the claimant was ready, willing and able to work- since he did in fact have a valid certificate- then the employers had no legitimate reason for refusing to pay him, whether or not they chose to use him. The consideration for pay was being available for work rather than actually performing it, unless a specific provision in the contract provides otherwise.   However, the onus is on the employer to show that there is a term relieving the employer of the normal obligation to pay: see the decision of the EAT (Lord Johnston presiding) in Beveridge v KLM Ltd [2000] IRLR 765 para. 9.   The employee was so available and therefore the employer could not lawfully withhold pay.

12.	The Tribunal then considered the victimisation claim. They were satisfied that in sending his grievance the claimant had done a protected act within the meaning of regulation 4  of the Age Regulations and section 2 of the Race Relations Act 1976.  Presumably the protected act was “alleging that [the discriminator] had committed an act which would amount to a contravention” of the relevant legislation.

13.	 Given the evidence, accepted by the Tribunal, that the manager Boris Hromis had said that the claimant could not return to work until his grievance had been “sorted out”, the Tribunal concluded that this was the cause of his continuing exclusion from work. The Tribunal considered that that was an act of victimisation. The claimant was to that extent being treated less favourably by virtue of having raised the grievance alleging breaches of these laws. 

14.	The Tribunal noted in terms that had the position been that the claimant could not return to work until the question of the insurance had been sorted out, which was the argument advanced by the employers, that would have been a different matter. But that was not the reason given for keeping him away from work. The Tribunal considered that an appropriate comparator would be somebody who had not lodged a grievance. Such a person would have been entitled to return to work and therefore the only conclusion, in the Tribunal’s view, was that the claimant had been treated less favourably. His grievance had alleged race and age discrimination and since he had been treated less favourably for lodging that grievance, it followed that he had been treated unlawfully.

15.	The Tribunal then ordered compensation and increased it on two grounds. The first was that there had been a failure to provide notification of changes in the Written Particulars. The second was that there had been a failure to comply with the grievance procedure and the compensation was increased by 40% to reflect that fact. There is no appeal against either of these matters.

The grounds of appeal.
16.	The grounds of appeal are directed both against the deductions finding and the conclusion that there was victimisation discrimination.  It is to be noted that the employers conceded before the Tribunal that they had unreasonably delayed the handling of the grievance and that the claimant should  be paid from the period when the grievance would have been determined had it been dealt with appropriately.  However, they denied that they were legally obliged to pay full wages from the 20 February

17.	The challenge against the Tribunal’s conclusion on the deductions point is put on two related grounds.  First it is said that the Tribunal wrongly came to the conclusion that the claimant had a valid certificate of insurance. It is submitted that the advice from the employer’s insurance brokers was that he did not, and that it was not for the Tribunal to substitute their view for that of an expert. 

18.	Reliance is placed upon the decision of the Court of Appeal in Jones v Post Office [2001] IRLR 384.  That was a disability discrimination case.  The facts briefly put were that the claimant contended that the employers were not justified in limiting his driving duties when he contracted insulin-dependent diabetes and that in so doing they had discriminated against him on grounds of disability.  The Court of Appeal held that the Tribunal was wrong so to conclude; the risk assessment had been conducted by properly qualified doctors and provided it was not irrational, the claimants were entitled to rely upon it.  It is submitted that in this case too there is an expert view which was rational and the Tribunal is not entitled to disagree with it.    The Tribunal should not second guess the experts.

19.	We entirely reject this argument. First, this is not a matter of expertise outside the ability of the Tribunal to assess. The issue is one of fact: was the claimant insured or not?  It is the function of the Tribunal to determine such facts.  We recognise that this issue may in turn give rise to an issue of law, such as whether on a proper construction of the policy the claimant was covered for pizza delivery.  But even then the Tribunal, and in particular the legally qualified chairman, is equipped to determine that question.  The skills of the employment judge are as relevant as those of an insurance broker in determining the proper scope of an insurance certificate.  

20.	The Jones case concerned a wholly different issue.  The question of justification in the context of disability discrimination does focus to some extent on the reasonableness of the employer’s conduct.  Here, however, the issue was not whether the employer was reasonable but whether he was right.  

21.	A related ground being relied upon is this. The employers submit that the Tribunal’s conclusion that the claimant was covered by insurance was in any event irrational.  They rely on a transcript of a telephone conversation between the claimant and his broker which took place at the meeting on 20 June.  There was admittedly initially some confusion as to whether the original certificate did cover the claimant or not and fresh cover note was issued to make the position absolutely clear.  The Tribunal treated this as confirming the position as it always had been.  It is said that the very fact that the claimant’s own broker had some doubts about whether the certificate properly reflected the scope of the cover demonstrated that the Tribunal had reached a perverse decision, contrary to the evidence, when it concluded that he was covered.

22.	  We do not understand this submission. It is absolutely clear from the telephone conversation that the broker was fully satisfied that the claimant was in fact covered.  We would in fact have thought that was tolerably clear from the original certificate read with the schedule. But whether that is so or not, it is in our view quite impossible to conclude that it was not open to the Tribunal to reach that conclusion.  Indeed, the employers themselves accepted that the claimant was covered once this was confirmed by his broker. 

23.	The real grievance of the employer, it seems to us, is that they consider that at least initially they reasonably believed that the claimant was not properly insured and that they should not permit him to work.  They took advice and had no real option but to act upon it.  We do have some sympathy for their position.  However, where the construction of the employment contract is in issue, the question was not whether they were reasonable but whether they were right.  In order for that reasonable perception to relieve them from the duty to pay wages, they would have had to show- the onus being on them- that there was an express or implied term of the contract which was to the effect that they were not obliged to pay wages unless the employee was properly insured and that he could demonstrate that fact to their reasonable satisfaction.  That was not how the case was run, nor how it was analysed by the Tribunal.  The focus was on the question whether he had actually been insured.  As we have said, it would have been necessary for the employers to identify with some precision what the implied term was, and that may have led to an exploration of certain issues which in fact were not addressed by the Tribunal.  For example, we suspect that it would be potentially relevant to ask whether under the scope of any such implied term the employers were under any duty to ask the employee for his permission to approach his broker to see if he was insured.  The employee’s broker would after all be in a better position than the employer’s broker to answer that question.  Furthermore, we suspect that it may have been necessary to focus more carefully on precisely what information was given by the employers to their broker in order to determine whether the refusal to accept the certificate was reasonable.  Given the scope of the issue before the Tribunal, we do not think they can be said to have erred in law in their approach to the deductions issue.  

24.	We can deal with the victimisation ground very briefly.  The argument is essentially as follows. It is submitted that the only reason that the Tribunal concluded that the claimant had been refused the right to return was because he had lodged his grievance was because they had already found that he was in fact insured.  In other words, that finding as to his being insured equally tainted both the deductions and discrimination claims. 

25.	Even if that were right, the ground would fail in the light of our finding that the Tribunal did not err in its approach to the deduction issue.  But in any event we do not think the Tribunal did reason in that way.   They had clear evidence that Mr Hromis had said that the claimant could not return to work until his grievance had been resolved.  Moreover, the Tribunal in terms stated that the position would be different if the claimant had been denied work until the insurance issue had been resolved.  In our view there was plainly evidence to support the Tribunal’s conclusion.  It should also be remembered that it is enough that the victimisation is one of the reasons for the treatment.  It need not be the sole or principal reason.  So even if the insurance uncertainty was also a factor that would not invalidate the Tribunal’s conclusion.

Disposal
26.   For these reasons we dismiss this appeal.