In a ruling that provides clarification on the right of employees to be given an itemised pay statement, contained in Section 8 of the Employment Rights Act 1996, the Employment Appeal Tribunal (EAT) has dismissed a man’s appeal against a decision that digital payslips are capable of satisfying that requirement (Leedham v Royal Mail Group Ltd).

The man’s employer had provided paper payslips until May 2023. From the following month, payslips were provided in digital form accessible via an app or a web browser, with paper payslips being retained only for employees with a disability or medical condition preventing digital access. From then on, the man did not access his payslips, although he had a smartphone capable of doing so and could have used free public facilities to view and print them. He brought an Employment Tribunal (ET) claim on the basis that the provision of digital payslips was not compatible with the requirement in Section 8.

The ET found that the man had no medical or other impediment to accessing a digital system and that his employer had made itemised pay information continuously available to him by electronic means, having clearly explained how it could be accessed. Dismissing his claim, the ET found that the word ‘given’ did not require physical delivery but encompassed making the information available in a readable, written form. Where an employee had no medical or practical impediment to accessing the digital system and the employer had provided multiple means by which the information could be accessed, the statutory purpose of Section 8 was met.

The man appealed to the EAT, arguing that Section 8 imposed a clear and positive obligation on the employer to give a worker an itemised pay statement. He contended that the ordinary and natural meaning of the word ‘given’ indicated actual provision or delivery by the employer, and that the ET had erred in law in equating ‘given’ with ‘made available’. He submitted that the ET’s approach impermissibly allowed employers to attach conditions to the exercise of a statutory right where none appear in the legislation, such as the need to possess a suitable device or download employer-mandated software.

The EAT found that the evident purpose of Section 8 was to secure transparency in pay, enabling the worker to understand in an intelligible and reasonably accessible form how remuneration had been calculated and whether any deductions had been made. The question was not whether the payslip had been physically handed over but whether the employer had provided the relevant information in a manner which fulfilled that purpose. The EAT accepted the employer’s submission that, in principle, the statutory obligation could be satisfied by electronic means. The employer’s system was free at the point of use and the man had had the means to access it but had chosen not to do so.  The EAT was satisfied that the system provided the claimant with access to his payslip information in a form that fulfilled the statutory purpose of Section 8. The appeal was dismissed.

The EAT emphasised that its conclusion was fact-sensitive. If an employer adopted a single exclusive method of provision that imposed burdens or disadvantages on employees, or if an individual employee had a difficulty preventing them from using that method, the question of whether the statutory purpose had been met would need to be assessed accordingly. The EAT also observed that, if the method of provision involved the tracking or extraction of data from an employee’s personal device, that was capable of engaging Article 8 of the European Convention on Human Rights and might, depending upon the findings of fact, lead to a different outcome.