Rogers v Dorothy Barley School – unlawful deductions from wages and breach of contract

The facts in Rogers v Dorothy Barley School

Mr Rogers (“the Appellant”) is a school caretaker working at the Dorothy Barley School (“the Respondent”) located in the London Borough of Barking and Dagenham. Mr Rogers occupies the school caretaker’s house at the Dorothy Barley School and he asserted that his contract of employment stated that he would not pay for water supplied to the house – this was his employer’s responsibility. He was therefore aggrieved that he was presented with and asked to pay for a water bill. He submitted complaints to the Employment Tribunal of unlawful deduction from his wages and, further or in the alternative, breach of contract.

The law relating to unlawful deductions and breach of contract

Under Part II Employment Rights Act 1996 it is unlawful for an employer to deduct sums from an employee’s wages unless the deduction is required or authorised by statute or a provision in their contract, or the worker has given prior written consent to the deduction. A deduction occurs if the worker receives less than 100% of the wages that they are entitled to under their contract of employment.

For retail workers, specific rules exist relating to the deduction of sums from retail workers’ wages because of stock or till shortages.

Should unauthorised sums be deducted from their wages an employee is entitled to submit a complaint to the Employment Tribunal.

The Employment Appeal Tribunal’s decision in Rogers v Dorothy Barley School

The original Employment Tribunal rejected Mr Rogers’ complaints. Employment Judge Pritchard ruled that the Employment Tribunal did not have jurisdiction to hear Mr Rogers’ complaint of unlawful deduction from wages as there had in fact been no deduction (in accordance with the Employment Tribunals (Constitution and Rules of Procedure) Regulations. Further, the Employment Tribunal did not have jurisdiction to hear Mr Rogers’ claim for breach of contract as it did not involve issues of termination of employment. Mr Rogers should have presented his claim to the County Court instead of the Employment Tribunal.

Although the Employment Appeal Tribunal criticised Mr Rogers’ appeal (he was told in September 2011 that the Tribunal did not have jurisdiction to hear his claim) the Employment Appeal Tribunal did not see fit to award costs against Mr Rogers (on the grounds that the claim was misconceived). There had been no warning by the Respondent that it would apply for costs and no schedule of costs had been supplied to the Appellant before the hearing. Further, the school had precipitated the case by directing the water bill to the Appellant in the first place.

Our thoughts on Rogers v Dorothy Barley School

This is clearly a case where the justified grievance of an employee has been both misconceived (in that he did not have the right to pursue a remedy through the Employment Tribunal) and mishandled procedurally. No fault is attributed to the Appellant as these are complex issues of law and procedures but often specialist employment law advice is needed to determine how to pursue a remedy.

The points to take away from this case are:

• The Employment Tribunal does not have jurisdiction to deal with unlawful deduction from wages claims where there is in fact no deduction from wages
• The Employment Tribunal does not have jurisdiction to deal with breach of contract claims where the alleged breach of contract does not involve issues relating to the termination of the contract of employment
• To pursue in an application for costs the other party must be notified of the intention to apply for costs, a schedule of costs should be supplied, and the applicant should not be responsible for the case itself