The claimant was a healthcare assistant who provided his services as a ‘bank’ worker. Under the express terms of his contract the respondent was not obliged to offer him any work at any time, and he was not obliged to accept any assignment in fact offered to him. The contract also provided only for payment in respect of assignments offered to, and accepted by, him.
Following an allegation of misconduct, the respondent suspended the claimant from the bank for a number of months while it was investigated. This meant that he was treated as not eligible to be offered any work during the suspension period. The claimant presented a claim for unlawful deduction from wages, on the basis that there was an implied term that he was entitled to be paid average wages during the suspension period, so long as there was work available to do. The claim failed in the Employment Tribunal. The claimant appealed.
Held: There was no basis on which to imply a term of the sort contended for by the claimant. Rice Shack Ltd v Obi, UKEAT/0240/17, did not point to that conclusion, as in that case the background obligation to pay wages during the period of suspension was conceded, and the sole issue for determination was a narrower one. North West Anglia NHS Foundation Trust v Gregg [2019] ICR 1279 was not in point, as it concerned the position of a suspended permanent employee, whom the employer was obliged by the contract to continue to pay, so long as he fell to be treated as ready, willing and able to work. The claimant’s contract, by contrast, only expressly obliged the employer to pay him in respect of a period during which work had been specifically offered and accepted. On consideration of the authorities, the proposed implied term was not one that arose from an application of the common law principles of implication of contractual terms. Nor could the reasoning in Uber BV v Aslam [2021] ICR 657 be deployed to achieve that result. The appeal was dismissed.
[2021] UKEAT 2019-000762
Bailii
England and Wales
Updated: 25 October 2021; Ref: scu.668244