THE INDUSTRIAL TRIBUNALS  

CASE REF:    1180/12  

CLAIMANT:	Sukhjinder Kaur

RESPONDENT:	Jay’s Brow Bar

DECISION

The decision of the tribunal is that the claimant is entitled to part of the unpaid wages and holiday pay claimed.  This amounts to £469.98.  The respondent is ordered to give to the claimant the claimant’s pay slips.

Constitution of Tribunal:

Chairman  (Sitting alone):	Mr S M P Cross

Appearances:

The claimant appeared in person and was assisted by her husband, Mr Pardeep Kumar.

The respondent owner of the business, Mr Jay Maini, appeared in person and was not represented.

FINDINGS OF FACT

1.	The claimant had qualified as a Beautician at a college at Adampur in India in November 1999.  She applied for and was given a job as a threading therapist in the respondent business of Eye Brow Beauticians, carried out in Winetavern Street and Castle Place Belfast.  As the claimant had not worked in the beautician business for a number of years she was given a refresher course.  The claimant said that it was not a training course, merely an induction course.  I prefer the evidence of the respondent on this point, as the claimant had been away from this type of business for some time since she left her college and it was necessary for her to have updated training on the skills that she would require when employed by the respondent.

2.	The contract of employment between the parties stated that the claimant’s training period would last from 10 to 15 November 2011.  Her employment was to start as soon as the training was completed.  Later in the contract it was stated that any trainee was required to continue working for the employer for at least six months after the training.  If the trainee failed to so work then she could be required to repay the cost of the training costs of up to £500.00.  The contract did not state that the employer had the right to deduct the training costs from the wages due to the employee.

3.	The claimant continued to work for the respondent until 24 April 2012 when she telephoned the respondent and said that she was leaving.  She did not work out her notice as she was suffering from toothache.  She therefore did not complete her six month period after training.  The respondent refused to pay certain outstanding money to the claimant, on account of the fact that he stated that she was due to repay the training fees of £500.00.

4.	Part of the dispute between the parties concerned the fact that the claimant required extended leave to attend her brother’s wedding ceremony in India.  She agreed with the respondent, that she would be absent from work from 22 December 2011 to 20 March 2012.  The arrangement was that the claimant would be entitled to whatever holiday pay was due to her, but that the largest part of this leave would be unpaid.  The holiday year ran from 1 January to 31 December of each year.  The claimant having worked one month of 2011, was entitled to 1/12 of the holiday pay for 2011.  She then worked for one month of 2012, and would get 1/12 of the 2012 holiday entitlement.  The claimant was employed for 42% of the time worked by a full time employee.  A full time employee was entitled to 28 days leave per annum.  Thus the claimant was entitled to a pro rata of 42% of 28 days, namely 12 days per annum.  The claimant is thus entitled to 2 days holiday, one for each holiday year.

5.	The claimant earned £6.08 per hour.  She worked 16 hours over 5 days per week.  This gave a daily wage of £38.91.  Her 2 days unpaid holiday amount to £77.82.

6.	The claimant claims unpaid wages in March and April of £392.16.  She also claims that she was not paid for 5 days training at 4 hours per day amounting to £121.60.  She also claimed that she had not received all her pay slips and this was admitted by the respondent, who stated that he would send these to the claimant together with her P45 and P60.

THE LAW

7.	This claim is made under Article 45 of The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  This provides that an employer shall not make a deduction from wages of an employee, unless the deduction is authorised by statute or contract, or the employee has signified his consent to the deduction in writing.  The article goes on to state in sub clause (3) that, “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.”

8.	The case law, on the topic of whether the employee has consented to the deduction being made from wages, is quite specific in its requirement, that the actual deduction must be authorised in the contract itself, or in a written and signed consent to such a deduction being made.  In the case of Fairfield Limited  v  Skinner [1992] ICR 836, the English Employment Appeal Tribunal referred to the requirement, in the legislation then in force, proceeding the 1996 Order, but which incorporated similar wording as is set out in Paragraph 7 above, to the effect that the deduction from wages must be authorised by a relevant provision of the employee’s contract.  In that case there was a dispute as to exactly what sum was to be deducted from the wage and this lead the court to adjudicate that the tribunal would first have to decide on that before making the deduction if the contract did authorise the deduction.  In this case the repayment was to be up to £500.00 and consequently there could have been an argument as to the exact amount repayable.  However as the contract did not state that the employee consented to the deduction, this matter of how much should be deducted, does not arise and no sum can be deducted without breaching the provision of Article 45 of the 1996 Order.

9.	Where a claimant claims that her employer has failed to give to her, her pay slips showing her wages and appropriate deductions, the claimant may apply to the tribunal under Article 44 of the 1996 Order for a declaration to that effect.

DECISION

10.	The clause in the contract which provides for the employee to repay the training fee was the main part of the respondent’s argument, that he should not have to pay the outstanding money to the claimant.  However the clause in the contract allows the respondent to make a claim of up to £500.00 from the claimant if she breaks the contract.  It does not state that the clamant consents to the deduction of any sum from unpaid wages.  By signing the contract of employment the claimant merely authorised the respondent to recover a sum of up to £500.00 training expenses in the circumstances that arose in this case.  I understand that the respondent has not always enforced this provision.  However the cases mentioned, where the £500.00 was not claimed, involved situations of employees having to move away from Belfast unexpectedly and like situations of some hardship.  In this case the claimant only worked for a very short period for the respondent, as she was in India for three months of the five months employment.  It would therefore be open to the respondent to bring proceedings for the recovery of the cost of the training.  Unfortunately, from the respondent’s point of view, he cannot make any counterclaim in these proceedings, as the claimant is not making a contractual claim for the repayment of the money she claims is due to her.  Her claim is under the provisions of the 1996 Order as set out above.  This provision does not allow the respondent to make a counter claim.  If there has been a wrongful deduction from wages it has to be made good.  If the contract that was signed had stated, that the employer could deduct a sum from the outstanding wages due to the employee, then the matter would have been different, but the wording did not give this right to the employer.

11.	However I am not satisfied that the claimant is correct in claiming pay for the 20 hours of training.  The contract states that employment commences immediately after the training is completed.  It does not state that there is any payment to the employee during the training.  The contract states, “your wage on the successful completion of training will be £6.00”, this being a mistake in the contract, which should have read £6.08.

12.	I am satisfied that the claimant did give her proper notice to the respondent but was unable to work it out due to a dental problem, mentioned in a letter shown to me from her dentist.

13.	As mentioned above the claimant is entitled to the holiday pay calculated as £77.82 and unpaid wages of £392.16.  The total due to the claimant is therefore:-

Unpaid wages:	£392.16
Holiday pay:	  £77.82
	 ______
Total:	£469.98

14.	I also order, under the provisions of Article 44 (3) of the 1996 Order, that the respondent gives to the claimant the pay slips referred to above.

15.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:       11 March 2013, Belfast.

Date decision recorded in register and issued to parties: