McBride v Calcast Ltd  (Unlawful deduction of Wages)  (15 January 2003)
THE INDUSTRIAL TRIBUNALS 

CASE REF NO:	03693/01

APPLICANT:	William McBride

RESPONDENT:	Calcast Limited

DECISION
The unanimous decision of the tribunal is that the applicant has not proved that there was an unlawful deduction from his wages and the claim is dismissed.

Appearances:

APPLICANT:	Mr U Adair, Full-time Official of AEEU.

RESPONDENT:	Mr P Bloch, Engineering Employers’ Federation.

Extended Reasons
1.	The applicant was employed as a quality assistant with Transtec which then acquired by Calcast in October 2000.  It was agreed that there was a collective agreement with the trade unions in relation to pay scales which was made in 1998.  There had been an agreement made between the personnel in the quality department and their management and this was in October 1997.  Mr Adair, the full-time union official, was not aware of this agreement at the time that he took over responsibility for his members in the plant.  The Tribunal saw a memo from Mr McClean the quality manager, who also gave evidence to the Tribunal.  The Tribunal accepts that this was an agreement reached in that department only and it was to cover the increase of work after two assistants left.  Rather than replace them, the company agreed to pay 50p per hour more to those people who were retained and in the memo it refers to a saving of £12,000 which could be made on direct wage costs.  The 50p per hour was paid to the quality assistants from 1997 onwards.  The central issue in this case is that the shift allowance which was negotiated by the unions was not paid on the amount of the applicant’s basic wage which included the 50p extra.  The shift allowance was paid on a basic pay without 50p.  A number of figures were put to the Tribunal in relation to this and the Tribunal saw the agreed wage increases.  The Tribunal also accepted that the shift 

allowance agreed in 1998 reflected a 20% addition to basic salary and in 1999 this was increased again to 22.16% for those on a shift allowance.  The crux of this case is that the shift allowances were not paid on the declared basic rate for the quality assistants but were paid on the basic rate minus the 50p.  The applicant complained that this was an unlawful deduction from his wages.

2.	The applicant agreed that he had accepted this money until November 1998 when he approached the new plant manager in relation to this.  The applicant denied that Mr McClean had explained the situation to the quality assistants in 1998 and further that he explained it to them in 1999.  The applicant’s phrase was that he had ‘no recollection of this’.  Having heard Mr McClean, the quality supervisor, the Tribunal accepts that he did explain to the applicant and the other quality assistants exactly what was meant by this 50p increase.

3.	Miss McCurry, plant manager, gave evidence and the Tribunal accepted that she became aware of an anomaly in the quality assistants wages.  When Transtec went into receivership and a new company took over, they regularised the payment structure across the company and there is no reflection of a 50p increase in the 2002 wage increase.  Mr Adair stated that the period for which they were claiming an unlawful deduction from wages was from 1 July 1998 until 31 December 2000.  The Tribunal noted that the applicant’s originating application was presented to the Tribunal on 13 November 2001 which is outside the statutory time limit for complaining of an unlawful deduction from wages.  Although this argument was not put before the Tribunal it should be noted that the Tribunal would not have jurisdiction to hear a claim on this ground alone.

4.	However as the parties had not put this argument forward and had asked for reasons for our decision the Tribunal records that the applicant had agreed to a variation in his wages which at the time, ie. in 1997 was favourable to him.  He continued to work and receive the wages as outlined from October 1997 until November 1998 with no claim whatsoever although the Tribunal accepts that his pay statement set out shift allowance separately from wages and so it was easy for him to see if there was an anomaly in his wages.

5.	The Tribunal find that it is more likely than not the applicant and his companions started to complain in 1999 when they realised that another group of people were earning more than they were on piece-rate.  It is noted that courts are generally reluctant to accept that employees had impliedly consented to contractual changes but it is necessary to draw a distinction between terms relating to remuneration which have immediate practical effect, eg. terms governing the basic pay rate, and those which do not, eg. terms relating to sick pay or pensions.  In Jones -v- Associated Tunnelling Limited 1981 IRLR 477 EAT stated that ‘if the variation relates to a matter which has immediate practical application, eg. the rate of pay, and the employee continues to work without objection after effect has been given to the variation, eg. his pay packet has been reduced, then obviously he may well be taken to have impliedly agreed.’  The EAT contrasted this with the variation of the term which relates to matters which have no immediate impact.  The example cited was the imposition of a contractual mobility 

clause.  If the term has no immediate effect the employee’s failure to object to the inclusion of the term in his or her employment contract does not necessarily imply acquiescence.  As stated previously the present case has demonstrated that the applicant continued to accept the variation in his pay without complaint.  For these reasons and apart from those relating to time limits, the Tribunal is unanimous in its opinion that the applicant has not proved that there was an unlawful deduction from his wages and his claim to the Tribunal is dismissed.

____________________________________
M P PRICE
Vice President

Date and place of hearing:	15 January 2003, Londonderry

Date decision recorded in register and issued to parties: