Commentary

(2) The tribunal's power to construe the contract

Division BI Pay
| Commentary

(2) The tribunal's power to construe the contract

| Commentary

(2)     The tribunal's power to construe the contract

The words 'properly payable' in ERA 1996 s 13(3) refer to a legal, but not necessarily a contractual, entitlement on the part of the worker to the payment (New Century Cleaning Co Ltd v Church [2000] IRLR 27, CA discussed at para [339]) ff. Therefore, the preliminary stage is to consider whether there is a sum legally due. It is only if the answer to this question is in the affirmative that consideration should then be given as to whether there has been a deduction from that sum (Hellewell v Axa Services UKEAT/0084/11, [2011] ICR D29).

Where the entitlement relied on is contractual, determining what is 'properly payable' will in many cases require the tribunal to construe the worker's contract and in the experience of the writer, many tribunals have over the years engaged in precisely this exercise. However, until recently there

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