EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
The Respondent instructed the deduction of certain on-call payments to the Claimant, an Obstetrician and Gynaecologist employed to undertake both clinical and academic work, for a period during which he had refused to undergo certain health screening checks required of those undertaking Exposure Prone Procedures (‘EPPs’). The Respondent had initially contended it was not the Claimant’s employer but had subsequently argued that it had been entitled to make the deductions as a matter of contract (express or implied) because of the refusal to provide validated screening documentation. The Tribunal had concluded that it had been an express term of the contract that the Claimant supply the screening information, which failing such a term could be implied on the ground of patient protection/health and safety.
On appeal the Claimant contended that the express and implied terms defence had not been pled. However, reasonable notice had been given of all of the arguments to be run by each side and the Claimant had shown in submissions that he understood all of the key points in dispute. There was no identifiable material prejudice as a result of the unsatisfactory procedural history of the case and the absence of formal amendment of the pleadings. In any event the Tribunal had been obliged to ascertain the relevant contractual terms before it could reach a decision on what had been ‘properly payable’ to the Claimant in terms of section 13 of the Employment Rights Act 1996. The decision in Agarwal v Cardiff University UKEAT/0210/16/RN would not have been followed had there been a challenge to the Tribunal’s jurisdiction to consider and construe the terms of the contract.
Further, the Tribunal had not erred in its approach to the identification of the express or implied terms. While there was evidence that could have led to a different conclusion on express terms, the decision reached was one that was open to the Tribunal on the evidence led. The Tribunal had given sufficient reasons for relying on a questionnaire as being ‘part and parcel’ of the contractual arrangements. The relevant Occupational Health Policy had not been overlooked; it was included within the various contractual documents. Even had the screening requirement not been sufficiently well incorporated to be an express term, it could be implied from the documentation that made clear that patient protection was an important priority where EPPs were undertaken.
There being no identifiable errors of law in the Judgment, the appeal was dismissed.
Judges:
Wise Lady
Citations:
[2017] UKEAT 0276 – 16 – 2007
Links:
Statutes:
Jurisdiction:
England and Wales
Employment
Updated: 28 March 2022; Ref: scu.591132
