Can an employment tribunal rectify a contract?

Probably not, held the Court of Appeal in the case of Nexus v RMT and Unite the Union, but it can decide whether a contract could in principle be rectified.

This is the latest case in the long running litigation relating to public transport workers in Tyne and Wear. A number of Claimants, backed by the two unions, had won claims for unauthorised deductions from wages.

Having lost the issue of principle about whether there had been deductions made, Nexus issued a claim against the unions for rectification of the collective agreement that was part of the deductions claims.

On appeal, the Court of Appeal decided that Nexus had sued the wrong people (it should have been the individual employees) but also commented on the possibility of Nexus raising the issue of rectification at the remedy hearing in the employment tribunal.

The Court of Appeal’s judgment appears not to be binding on rectification in the employment tribunal as the case was dismissed for having sued the wrong people. The (provisional) majority view, given by Lord Justice Males that:

“…the employment tribunal does have power to order rectification if it is necessary to do so in order to determine a claim for unlawful deductions. Sections 13 and 23 of the Employment Rights Act 1986 [sic] confer on the employment tribunal jurisdiction to determine whether a deduction from wages is unauthorised. It follows necessarily, in my view, that the tribunal has power to decide any issue which needs to be decided in order to determine a complaint that a deduction from wages is unauthorised. If the employer contends that the deduction is lawful because the written contract between the parties does not properly reflect what was agreed and needs to be rectified, that is an issue which needs to be decided.”

None of the judges agreed with their precise reasoning on the point, thus making it a potential case for the Supreme Court to decide in future.