Appeal No.	 EAT/1458/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 May 2001

Before
HER HONOUR JUDGE A WAKEFIELD
MS N AMIN
MISS C HOLROYD

MR P BICKERSTAFF t/a COSTCUTTERS	APPELLANT

MISS P BASHFORD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

HER HONOUR JUDGE A WAKEFIELD

1	This is an Ex Parte Preliminary Hearing of the appeal of Mr Philip Bickerstaff trading as Costcutters against the decision of an Employment Tribunal sitting at Manchester on 10 August 2000 whereby in a decision with full reasons promulgated on 18 October 2000, he was ordered to pay to his former employee, Miss P Bashford, the sum of £272.08 for accrued holiday pay.

2	The Appellant did not attend the hearing at the Employment Tribunal which was before a Chairman sitting alone.  The form IT3 and supporting documentation showed that it was accepted that upon termination of the employment a sum of £272.08 was due to the Applicant, (the present Respondent) but it was asserted that it had been lawfully withheld from the final payment of wages to set against tax allegedly due by the Respondent to the Inland Revenue in respect of a car provided by the Appellant and used by the Respondent in the course of the employment.

3	In paragraph 5 of the reasons for the decision, the Employment Tribunal set out fully the background facts.  The Employment Tribunal then recited in paragraphs 6 and 7 of the decision the relevant sections of the Employment Rights Act, being sections 13 and 14.  The Employment Tribunal then concluded in paragraphs 8 and 9 of the decision as follows:

“8	I am not satisfied that the non-payment of accrued holiday pay referred to at paragraph 5.1 above amounts to a lawful deduction in respect of payment of tax to the Revenue in relation to the provision of a company car.  There is no pay slip and no formal documentation from the Respondent indicating that any sums of money had been paid to the Revenue in relation to taxation on the company car.  The provision of a hand-written note indicating calculation of monies due, without direct reference to the Applicant, and without supporting evidence to explain its calculation or confirm payment thereof to the Revenue, is not sufficient evidence to show that any monies had been lawfully deducted from the Applicant’s wages in respect of a payment made or payable to the Inland Revenue.  There is no determination of the amount due by the Inland Revenue, the public authority, and therefore section 14(3) ERA 1996 does not apply.  Section 14(1) does not apply.  That section provides that section 13 does not apply to a deduction from the workers wages where the purpose of a deduction is the reimbursement of the employer in respect of an overpayment of wages.  The deduction made by the Respondent in this case does not fall into that category.  There has not been a miscalculation of the Applicant’s gross wage.  What is alleged is a miscalculation of a tax payable.  That is a miscalculation of the deduction, not of the gross wage.
9	Whilst the provision of the company car to the Applicant may attract payment of tax as a benefit in kind the mere assertion by the Respondent that it may do so and the calculation by the Respondent of the amount so payable, does not make this an authorised deduction within the meaning of section 13 ERA 1996.”

4	We can find no error of law in these conclusions.  While it may be right that the Inland Revenue ultimately calculate a sum as due from the Respondent for tax on the car, there was no evidence before the Employment Tribunal that any such sum had as yet been calculated by the Revenue or paid over by the Appellant.  In these circumstances this appeal has no merit and must fail.  It is therefore dismissed at this stage.