part ONE: ‘You owe me!’

Adam Bernstein examines the pitfalls of making deductions from employee wages

Published:  20 March, 2019

As an employer, have you ever found yourself in a situation where you need to make a deduction from an employee’s wages? Are you confident that you know the legal rules in this area? Andrew Rayment, a Partner in the employment department of law firm Walker Morris, has seen this question arise many times with employers who have made the wrong decision.
    
He offers an example to illustrate the point. A worker has had to take three weeks off work because of a bad back. He is paid statutory sick pay but there is no company sick pay scheme to top this up. He has three young children to support and the employer knew he was going to struggle to make ends meet. The employer ‘topped him up’ to his full wages for the three weeks as a ‘loan’ to help him out. It was agreed, however, that the loan was to be repaid when the worker was in a better situation. The payment was through payroll so the money was received as ‘wages’.
  
 “The problem in this case was that everything was done on trust, so nothing was written down or confirmed in writing,” and as Andrew continued, “a year later the worker resigned after a disagreement. During the interregnum, the period between handing in his notice and his departure, he didn’t repay the money, so it was simply deducted from his final wages payment.” The agreement for the loan was verbal and there was nothing written into his employment contract for the employer to make deductions from his wages.
    
As if to inflame the situation, the worker subsequently filed a claim in the Employment Tribunal for unlawful deductions from wages and the employer was ordered to repay the sums deducted.
    
As Andrew says: “It seems unjust, but these were the actual facts of an Employment Tribunal case. But there is a further sting in the tail. Once an Employment Tribunal has ordered an employer to pay back an amount that has been deducted unlawfully the employer cannot attempt to recover that money later in another way, for example by bringing a civil action in the county court.” This rule, he adds, applies even though the sum may have been properly due from the employee to the employer. The fact that the employer has sought to recover it unlawfully effectively extinguishes the previous debt and the employer does not get a second bite at the cherry.

What does the law say?
Section 13 of the Employment Rights Act 1996 sets out the provisions that protect workers from unauthorised deductions (known as unlawful deductions) being made from their wages.
  
 “Quite simply,” says Andrew, “the law says it is unlawful for an employer to make a deduction from a worker's wages unless the deduction is required or authorised by statute or a provision in the worker's contract; or the worker has given their prior written consent to the deduction.”
    
Worse still for employers, he says that unlike breach of contract claims which can only be brought after the employment has ended, employees can bring unlawful deductions claims in the Employment Tribunal while their employment is ongoing.

Who is protected?
The law applies to all workers and includes not only an employee, but an individual who has entered into ‘any other contract... to do or perform personally any work or services’, unless the individual is carrying on a ‘profession or business undertaking’ and the other party to the contract is ‘a client or customer’ of that undertaking. In practice, anyone who is on the payroll regardless of whether they are full-time, part-time, casual, direct agency hire or zero-hours will be protected.
    
Andrew cautions employers that following a raft of recent cases on worker status many self-employed contractors may be deemed in law to be workers regardless of the parties’ intentions or the contractual paperwork.
    
In essence, workers are protected from having deductions made from their wages except in certain specific circumstances. Says Andrew: “The law puts the onus firmly on employers to obtain authorisation from the worker to any deductions before they are made. The overriding aim is to protect staff from unscrupulous employers, but employers also need to protect themselves against falling victim to the strict legal rules.”



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