Appeal No.	EAT/149/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 January 1999

Before
HIS HONOUR JUDGE C SMITH QC
MS B SWITZER
MR T C THOMAS CBE

MR K FASHOLA	APPELLANT

LONDON BOROUGH OF HACKNEY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR S D HEATH
(of Counsel)
Legal Services Trading Unit
London Borough of Hackney
183-187 Stoke Newington High Street
London N16 OLH	

	JUDGE C SMITH QC:     This is an appeal by the Appellant, Mr Fashola, against the decision of an Industrial Tribunal held at London (North) on 1 October 1997 of which Extended Reasons were sent to the parties on 24 October 1997, whereby the Industrial Tribunal held that the Appellant was entitled to a claim in the sum of £1,847.50 under the Wages Act 1986 (as it then was) but that the Respondents, the London Borough of Hackney, were entitled to set off against that sum the balance due from the Appellant to them in respect of a car loan for a BMW motor car made to the Appellant in the sum of £2,293.41, pursuant to Clause 5 of the car loan agreement, signed by both sides, on or about 22 May 1990.  Accordingly, the Industrial Tribunal held that the Appellant was not entitled to any monetary award.

1	The Appellant appeared before us in person to argue the appeal.  He sought an adjournment of this appeal on the grounds that he had not been able to arrange legal representation, having been refused Legal Aid.  He pointed out, correctly, that the Respondents had not strictly complied with the directions given for the hearing of this appeal, since they had not served their skeleton argument upon him until the morning of this hearing.  

2	The Appellant also pointed out that he had an outstanding appeal to the Court of Appeal, to be heard apparently on Monday next, 18 January 1999, but we are quite satisfied that this particular appeal with which we are today concerned, is a quite discrete and separate matter from anything which is the subject matter of the Appellant’s appeal to the Court of Appeal.

3	We have decided, in the exercise of our discretion, having carefully considered the arguments in relation to the application for an adjournment, that we should refuse the application for an adjournment.  The point is, we believe, a short one for decision and we have concluded that Mr Fashola has been able to present to us all such arguments as could be presented to us in support of the appeal so that the matter can be given proper consideration by us. 

4	The burden of Mr Fashola’s arguments are that firstly, the Industrial Tribunal should have dealt with his complaint under the Wages Act at the time when he made his original complaint, by his Originating Application dated 27 February 1992, and that accordingly, the decision in October 1997, based on a third Originating Application of the Appellant’s repeating his complaint of contravention of the Wages Act is unsafe and unsound, since the matter should have been dealt with on the hearing that took place between 8 and 15 November 1993.

5	We find that we must reject this ground of appeal.  It was, perhaps, unfortunate that that Industrial Tribunal then failed to deal with this particular complaint, amongst all the other complaints they had to deal with, but in our judgment, particularly since the present appeal turns largely on admitted facts and construction of the car loan agreement and the relevant legal provisions in the Wages Act, there could be no possible injustice to the Appellant in the Industrial Tribunal having eventually considered the matter, as they did at the hearing in October 1997.

6	Secondly, the Appellant drew our attention, perfectly properly, to the case of Potter v Hunt Contracts Ltd [1992] IRLR 108 and sought to persuade us, as we understood his argument, that the Industrial Tribunal should have construed the car loan agreement which the Appellant had entered into with the Respondents on or about 22 May 1990, in the same way as the Employment Appeal Tribunal construed the letter of 28 March 1989, in the Potter case, ie as not indicating with sufficient clarity that a deduction could be made from wages, having regard to the restriction on such deductions imposed by the Wages Act.

7	In our judgment, however, Clause 5 of the car loan agreement, in contra-distinction to the terms of the letter in the Potter case of 28 March 1989, clearly provides that deduction in respect of monies due under the car loan agreement can be made from wages.  The use of the expression “whether by way of accrued salary or refund of superannuation contributions or otherwise” could not be clearer in our judgment.

8	Thirdly, the Appellant sought to argue that, since the sum of money due to him as arrears of wages at the time of his dismissal by the Respondents on 8 January 1992, had originally been unauthorisedly deducted from his wages during 1991, contrary to the Wages Act, such monies could not thereafter lawfully be sums, having been unlawfully deducted from him in the first place, from which the amount due from him under the car loan could properly be deducted.  We cannot accept this submission.  In our judgment such monies remain sums due to the Appellant from the Respondent within the meaning of that expression in Clause 5 of the car loan agreement, namely arrears of wages against which the balance due on the car loan can properly be deducted within Clause 5 of the loan agreement.

9	Finally, the Appellant sought to repeat before us the argument which the Industrial Tribunal rejected in paragraph 7 of their decision.  We agree with their reasoning that the car loan agreement falls to be construed quite separately from the Appellant’s contract of employment and is an agreement falling within what is now  section 13(1)(b) of the Employment Rights Act 1996, namely an agreement under which the Appellant had signified in writing, in May 1990, his agreement to the making of deductions from his wages before the deduction was made from his wages after his dismissal in January 1992.

10	Accordingly, having carefully considered the reasoning of the Industrial Tribunal, paragraph by paragraph, we can find no error in their approach, either with regard to their findings of fact or with regard to the way in which they applied the relevant law, or in the way in which they construed the car loan agreement.

11	We conclude that the Industrial Tribunal quite correctly construed Clause 5 of the car loan agreement, as allowing the Respondents to deduct the balance outstanding on the car loan in respect of the BMW motor car from the outstanding wages due to the Appellant from the Respondents, with the result, as the Industrial Tribunal held on the figures that they calculated in their schedule and with the agreement of the Respondents, that no sum of money was due to the Appellant under the Wages Act and accordingly, this appeal is dismissed.