Mr G Thompson v Gavin Stevenson, Returning Officer, — 2020

This was a remote hearing before Employment Judge P O'Donnell on 1 September 2020 in a claim by Mr G Thompson against Gavin Stevenson, Returning Officer, Dumfries and Galloway Council. The claimant alleged an unlawful deduction from wages complaint under Part 2 of the Employment Rights Act 1996, saying that the flat fee of £235 paid for Presiding Officer work at the December 2019 General Election, together with disputed deductions and the treatment of training and travelling time, left him with an hourly rate below the National Minimum Wage. He also had an Equality Act 2010 complaint, which he confirmed at the hearing he did not intend to pursue.

The respondent applied under Rule 37 to strike out the wages claim as having no reasonable prospects of success. The tribunal reminded itself that strike-out is a draconian power, should be used with caution, and was particularly cautious because Mr Thompson was a litigant in person and because section 28 of the National Minimum Wage Act 1998 creates a presumption that the worker qualifies for the NMW unless the contrary is established. The tribunal also noted that no evidence had been heard and that issues such as what expenses, if any, could be treated as reductions under Regulation 13 of the National Minimum Wage Regulations 2015 required evidence and findings of fact.

The tribunal rejected the respondent's supplementary arguments that the claimant's expenses could not be taken into account because they were not 'wages' for section 13 ERA purposes, and that Regulation 13 only applied to payments made to the employer. It held that those arguments conflated different statutory provisions and ignored Regulation 13(1)(b)(ii), which covers payments to third parties. The tribunal also declined to read Regulation 46 as excluding training time done outside ordinary working hours, noting the non-exhaustive definition of training in Regulation 19 and the absence of wording saying the training must be for time when the worker would otherwise be working for the same employer.

The tribunal did accept that the separate argument that the claimant should have been paid an additional training fee had no reasonable prospects of success because there was no contractual or legal basis for such a fee. Overall, however, it found that the claim as a whole had reasonable prospects, refused the strike-out application, and recorded that the Equality Act complaint had been withdrawn and dismissed under Rule 52.