REWARD
Deductions, vicarious liability, discrimination
NicolaMullineux, senior employment specialist for Peninsula , reviews the decisions in three cases
HMRC v Middlesbrough FC In this case, the employment appeal tribunal (EAT) found that Middlesbrough FC had unlawfully deducted wages from their staff when taking money from salaries for season tickets. Under the National Minimum Wage Regulations 2015 (‘the Regulations’), employees are entitled to be paid at least the national minimum wage. That said, the Regulations also outline certain deductions that can be made which will not breach the law. These include payments made to the employer to buy goods or services from it which are not connected with employment or required by the employment contract. In this case, Middlesbrough FC deducted money from staff wages in order to fund a season ticket to attend football matches. This was an entirely voluntary option for staff. HM Revenue & Customs (HMRC) issued the club with a notice of underpayment for deducting a total of £2,000 from employee salaries in 2016. Middlesbrough FC argued that these deductions fell into the remit of the law as employees had been able to request them and they did not benefit the organisation. Specifically, they relied on the exemption as outlined in the Regulations that the payments were to buy goods or services not connected to the club. The employment tribunal (ET) outlined that the payments did not amount to an unlawful deduction from wages, agreeing with the club’s argument that they were exempted. In rescinding the notices from the
HMRC, the ET indicated that deductions designed to assist employees, rather than for the purposes of work, may not be deemed unlawful. However, the EAT reversed this decision. They explained that the payments in question were ‘clearly’ deductions. They went on to outline that the purpose of the Regulations was to protect workers from unlawful deductions and that there was no scope within them which suggested something that normally would be a deduction is actually a ‘payment’. If this was intended by the Regulations, it would have been outlined within them; they were not open to interpretation. The EAT went on to explain that whilst workers are able to consent to deductions from pay in certain circumstances, they cannot opt out of the provisions of the Regulations. This case confirms what previous case law has found; the Regulations are not open to interpretation in order to justify making deductions from wages, regardless of whether staff agree to the deductions or not. That said, it should be noted that the club may appeal against this decision to the Court of Appeal. It should also be remembered that the government is updating rules surrounding underpayment of the minimum wage to take mitigating factors into account. Although the club tried to argue that these expected developments should be taken into account in this situation, the EAT did not feel it applied as it had been announced long after the events took place.
WM Morrison Supermarkets plc v various claimants In this case, the Supreme Court found that Morrisons were not vicariously liable for the actions of an employee who illegally distributed personal data of nearly 100,000 staff. Organisations can be liable for acts committed by their employees if it is found that their actions are sufficiently connected to their employment. For example, in Mohamud v Wm Morrison Supermarkets plc, the Supreme Court held that Morrisons were liable for the actions of an employee who assaulted a customer, as there was a close connection between his act and that of his employment. Likewise, in Bellman v Northampton Recruitment Ltd, the Court of Appeal also found the organisation was liable when a director assaulted a member of staff whilst they were both out having Christmas drinks. This case concerned an employee who held a grudge against Morrisons. He was provided access to payroll data concerning a large number of Morrisons’ staff so he could distribute it to external auditors. Instead, he copied the data to an USB stick, posted it online under a colleague’s name and sent it to a number of newspapers. Morrisons acted quickly in taking this information down and, following an investigation, the employee was convicted and jailed for eight years. Over 5,500 claimants later brought action against Morrisons claiming they were exposed to the risk of identity theft and financial loss. The High Court found the leak was not facilitated or authorised by Morrisons. Regardless of this, they still ruled that Morrisons were vicariously liable for the actions of their employee in leaking the data. The Court found there was sufficient
...Regulations are not open to interpretation in order to justify making deductions from wages...
| Professional in Payroll, Pensions and Reward | June 2020 | Issue 61 38
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