In August, Louisa Simpson successfully represented a GP Surgery Nurse in claims for unauthorised deductions from wages (relating to training costs), and detriment done for the sole purpose of penalising the Claimant for being a trade union member. A Rothwell v (1) Gray’s Inn Medical Group Ltd (2) Dr P Nouraei Fard

The Tribunal made short shrift of the Respondent’s contention that referring to the Claimant as a “unionist” within a plainly negative reference was anything but a detriment with the purpose of penalising the Claimant for being a trade union member.

A particular point of more interest, though, was the Respondent’s argument that the deductions were not unlawful, because the Claimant had previously signified “in writing” her agreement or consent to the making of the deduction, as required by s. 13(1)(b) Employment Rights Act 1996. The Respondent relied on a group WhatsApp message it had sent, stating that those attending a particular course would be doing so on the basis of the cost being raised as a debt to the Respondent, with the understanding it will be sought from their pay if they leave before having repaid it in full. Recipients were asked to react with a “thumbs up” emoji to the message to accept it. Whilst the Tribunal found the Claimant (by reacting to the message with a “thumbs up” emoji) was agreeing to the making of the deduction from her pay, it accepted Louisa’s submission than the acceptance or consent was not “in writing” as required by s. 13(1)(b) ERA 1996, as defined by the Interpretation Act 1978. Whilst the emoji is visible, it is not a way of representing a word or words in visible form. It followed that signifying agreement by way of an emoji is not signifying agreement in writing for the purposes of s. 13(1)(b) ERA 1996, and the deductions made were therefore unlawful.

The Decision can be viewed here.