Agarwal v Cardiff University & Anor (Contract of Employment: Implied Term/Variation/Construction of Term), Court of Appeal - United Kingdom Employment Appeal Tribunal, March 22, 2017, [2017] UKEAT 0210_16_2203

Resolution Date:March 22, 2017
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Agarwal v Cardiff University & Anor (Contract of Employment: Implied Term/Variation/Construction of Term)
 
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Copyright 2017

Appeal No. UKEAT/0210/16/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 20 December 2016

Judgment handed down on 22 March 2017

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

MISS M AGARWAL APPELLANT

(1) CARDIFF UNIVERSITY

(2) CARDIFF AND VALE UNIVERSITY LOCAL HEALTH BOARD RESPONDENTS

Transcript of Proceedings

JUDGMENT

UKEAT/0210/16/RN

APPEARANCES

UKEAT/0210/16/RN

SUMMARY

CONTRACT OF EMPLOYMENT - Implied term/variation/construction of term

UNLAWFUL DEDUCTION FROM WAGES

The decision of the Court of Appeal in Southern Cross Healthcare Co Ltd v Perkins [2011] ICR 285 that the Employment Tribunal has no jurisdiction to construe a Statement of Written Particulars in a claim under Employment Rights Act 1996 (``ERA'') section 11 applies equally where it is necessary to construe a contract in order to determine a claim under ERA section 13 not to suffer an unauthorised deduction from wages. For these purposes a decision on whether terms are to be implied into the contract also falls within the Southern Cross prohibition on construction. Marks & Spencer v BNP Paribas Securities Services Trust [2016] AC 742 considered.

As it was necessary in determining the Claimant's claim under section 13 for wages referable to clinical duties to decide on the construction of her contract of employment with the First Respondent for academic work for them and clinical work for the Second Respondent including whether it contained implied terms regarding her ability to perform such duties the Employment Judge did not err in deciding that the Employment Tribunal had no jurisdiction to determine her claim. Such a claim would have to be pursued in the Civil Courts.

UKEAT/0210/16/RN

-2-

THE HONOURABLE MRS JUSTICE SLADE DBE

  1. Ms Agarwal (``the Claimant'') is a urological surgeon. At the material time she was employed under what is described as a ``clinical academic contract'' performing lecturing duties for Cardiff University (``the First Respondent'') and clinical duties for Cardiff and Vale University Local Health Board (``the Second Respondent''). For both duties she was paid by the First Respondent. Following a period of sickness absence on 1 October 2014 she returned to perform her academic duties. She did not return or was not permitted to return to perform her clinical duties in circumstances which are disputed between the Claimant and the Second Respondent. From the date of her return to her lecturing duties the First Respondent paid the Claimant half her total salary. By an ET1 on 19 May 2015 the Claimant brought a claim under Employment Rights Act 1996 (``ERA'') section 13 alleging that she had suffered unauthorised deductions from her wages in respect of clinical sessions since 1 October 2014.

  2. By a Judgment with Reasons sent to the parties on 22 March 2016 (``the Judgment'') following a Preliminary Hearing Regional Employment Judge Clarke (``the EJ'') dismissed the Claimant's claim on the basis that the Employment Tribunal does not have jurisdiction to hear it. The Claimant appeals that decision. As before the EJ before me, counsel were Ms Brown for the Claimant, Mr David Mitchell for the First Respondent and Mr Giles Powell for the Second Respondent. For reasons which appear from the evidence before the EJ and his findings of fact Ms Brown rightly conceded that the Claimant's claim lies against the First Respondent.

  3. All counsel stated that the arrangements under which the Claimant was engaged and remunerated in respect of academic and clinical duties are widely used and are of general interest. It is not in dispute between the parties that in a claim under ERA section 13 which applies during the subsistence of a contract an Employment Tribunal has no jurisdiction to construe or construct the terms of the contract relied upon. The issue for determination on this appeal is therefore whether the EJ erred in holding that it was not possible to determine the Claimant's claim without having to engage in construction of her contract of employment with the First or Second Respondent.

    Relevant Statutory Provisions

  4. Employment Rights Act 1996

    Section 13. Right not to suffer unauthorised deductions:

    ``(1) An employer shall not make a deduction from wages of a worker employed by him unless -

    (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

    (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

    (2) In this section ``relevant provision'', in relation to a worker's contract, means a provision of the contract comprised -

    (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

    (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

    (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.''

    Section 23. Complaints to employment tribunals:

    ``(1) A worker may present a complaint to an employment tribunal -

    (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)),

    ...''

    Section 24. Determination of complaints:

    ``(1) Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer -

    (a) in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13,

    ...''

    Section 25. Determinations: supplementary:

    ``(1) Where, in the case of any complaint under section 23(1)(a), a tribunal finds that, although neither of the conditions set out in section 13(1)(a) and (b) was satisfied with respect to the whole amount of the deduction, one of those conditions was satisfied with respect to any lesser amount, the amount of the deduction shall for the purposes of section 24(a) be treated as reduced by the amount with respect to which that condition was satisfied.''

  5. Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994

    Article 3. Extension of jurisdiction:

    ``Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if -

    (a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

    (b) the claim is not one to which article 5 applies; and

    (c) the claim arises or is outstanding on the termination of the employee's employment.''

  6. Employment Tribunals Act 1996

    Section 3. Power to confer further jurisdiction on employment tribunals:

    ``(2) Subject to subsection (3), this section applies to -

    (a) a claim for damages for breach of a contract of employment or other contract connected with employment,

    (b) a claim for a sum due under such a contract, and

    (c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract,

    ...''

    Outline Relevant Facts

    The Contract of the Claimant with the First Respondent

  7. The Claimant had been employed as a Clinical Senior Lecturer in the medical school of the First Respondent (and its predecessors) since 1 February 2003 under what is described as a ``clinical academic contract''. The initial appointment was described as ``locum'' and for a fixed term of two months. The Statement of Terms of the Claimant's employment incorporated by reference in the letter of offer of 5 February 2003 signed by her on 25 February 2003 included the following:

    ``28. Honorary Contract:

    28.1. It is expected that, in accordance with the normal practice of the relevant NHS Trust or Directly Managed Unit relating to appointments of this kind, an appropriate honorary contract will be awarded, to which such of the appropriate NHS terms and conditions will apply as do not contradict the terms and conditions set out in this Statement.

    ...

    28.3. The withdrawal of a clinical honorary contract with a Trust or Directly Managed Unit may constitute grounds for the College to terminate this appointment in accordance with your contractual terms of notice.''

  8. The First Respondent continued the employment of the Claimant from 27 October 2003 in the substantive post of University Clinical Senior Lecturer in Urology, initially on a probationary period.

  9. By letter dated 26 February 2004 the Claimant was offered appointment to the substantive post of Clinical Senior Lecturer in Urology which commenced on 27 October 2003 at a salary of £70,715 on the terms in the enclosed Statement of Terms and Conditions. The Claimant signed the Terms and Conditions on 26 February 2004. The 2004 Terms included the following:

    ``10. Duties:

    Your duties are summarised in the job description attached to this Statement. These may vary from time to time to reflect the requirements of the College.

    ...

  10. Absence through sickness or injury:

    If you are absent through sickness or injury you must comply with the College's requirements for reporting your absence, as contained in the College's Sick Pay Regulations, and explained in the College's Staff Induction Package.

    ...

  11. Honorary Contract:

    28.1. It is expected that, in accordance with the normal practice of the relevant NHS Trust or Directly...

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