Miss VidroiClaimantMarks and Spencer plcRespondent
Before
Employment Judge RobinsonIn person for claimantMr Leonhardt (instructed by Counsel) for respondentDate 24 May 2024
JUDGMENT
The judgment of the Tribunal is that the Claimant’s claims for unauthorised deductions from wages (unpaid wages and holiday pay) both fail and are dismissed.
REASONS
[1]I gave the above Judgment at the end of the 24 May 2024 hearing, together with oral reasons. The Claimant has requested written reasons under Rule 62 of the Employment Tribunals Rules of Procedure 2013. My reasons were as follows.
Introduction
[2]Miss Vidroi worked for the Respondent as a Customer Assistant from 10 October 2021 until her resignation in June 2023.[3]The Claimant makes a complaint of unlawful deductions from wages (section Case Number: 2306200/2023 2 13 of the Employment Rights Act 1996) which includes a claim for unpaid wages and for holiday pay.[4]The Respondent’s defence is that the Claimant was paid all sums due and, in fact, owes the Respondent a sum of money in respect of an overpayment.[5]ACAS early conciliation took place from 27 to 29 September 2023. The Claim form was lodged on 20 October 2023 and the Response form received on 11 December 2023.[6]There was a Preliminary Hearing on 13 March 2024 at which it was agreed that the issues for Tribunal to decide at the final hearing were:a. Holiday Pay. Did the Respondent fail to pay the Claimant for annual leave the Claimant had accrued but not taken when her employment ended?b. The Claimant says she is owed £708.50. That equates to 65 hours of holiday pay.c. The Claimant believes that her July payslip was her holiday pay.d. Unauthorised deductions from wages. Did the Respondent make unauthorised deductions from the Claimant’s wages and, if so, how much was deducted? The Claimant says she is owede. company sick pay (at full pay) from 18-29 June 2023.f.£427.82 (gross).g. This will involve the determination by the Tribunal of the Claimant’s date of termination of employment. The Claimant originally said this was 29 June 2023. The Respondent says it was 17 June 2023 and therefore the Claimant is not owed sick pay during that period.[7]Importantly, the Respondent’s position is that the Claimant has actually been overpaid. Yet that is not part of these proceedings. What this hearing was about is whether the Claimant has been underpaid. Case Number: 2306200/2023 3 Procedure and evidence[8]I heard evidence from the Claimant and, on behalf of the Respondent , from Miss Houghton, Payroll Operations Manager. They each had a signed witness statement.[9]There was also a bundle of 134 pages.[10]Having considered this evidence and the submissions on each side, I make the following findings of fact on the balance of probabilities.
Findings of Fact
[11]There was a lot of evidence provided from both the Claimant and Miss Houghton about the rather complicated “Late Leavers” policy that the Respondent had in place. However, I find that much of that is not relevant in relation to this claim.[12]The issues on which I find it necessary to make findings of fact are as follows: h. What was the Claimant’s last day of employment? i. Was the Claimant paid up until that day? j. Was the Claimant paid for any accrued by untaken holiday when she left? The last day of employment[13]The Claimant said in her oral evidence that her last day working was 11 June 2023 and that she was off sick after that.[14]She gave oral evidence that she wanted 17 June 2023 to be her last day but that the Respondent kept her on the system.[15]I find that it was because the Claimant provided a fit note for dates beyond 17 June that the Respondent was initially confused as to whether she was definitely resigning or not. Case Number: 2306200/2023 4[16]However, it seems very clear to me from the correspondence in the bundle that the Claimant said (and indeed later confirmed) in writing that she wanted the Respondent to treat her last day as being 17 June 2023. In particulara. By Teams message on Friday 9 June the Claimant wrote to Sarah Fennelly at the Respondent to say “I want to let you know that Saturday of next week [17 June] will be my last day of work.” (page 72 of the bundle).b. By email of 21 June 2023, the Claimant wrote to Kevin Newcombe (Regional Manager at the Respondent) “I am sure that I sent you the picture with the notification [the Teams message referred to above], letting Sarah know that on the 17th June is my last day. However, I will attach it again.” (page 82 of the bundle).c. By another email of 21 June 2023 to Kevin Newcombe, the Claimant wrote “I resigned, I gave notification that my last day will be on the 17th of June, but I got ignored and no one put it on the system.” (page 81 of the bundle).[17]I find that any internal administrative glitch or delay on the part of the Respondent keeping the Claimant on its systems, does not affect what was her last day of employment. It is very clear, on the Claimant’s own evidence, that she intended to resign and for her last day of employment to be 17 June 2023. Was the Claimant paid up until her last day?[18]The Claimant confirmed in her oral evidence that she was paid the amount on her 10 June 2023 payslip of £1,065.85. The Claimant also confirmed that she understood that the Respondent’s pay policy was for payslips dated on the 10th of the month to cover the whole of that calendar month. In other words, the payslip dated 10 June 2023 was for the period 1-30 June 2023.[19]Given the Claimant last day of work was 17 June 2023, I find (again, even on the Claimant’s own evidence) that she was paid for all of the days she worked in June, and beyond (i.e. the rest of June 2023). Case Number: 2306200/2023 5 Was the Claimant paid for any accrued by untaken holiday when she left?[20]The Claimant relied on a screenshot of her holiday account (page 73-74 of the bundle) that she took on 11 June 2023 (before her resignation), which showed an entitlement to 140 hours of holiday in total and that she had taken 75. The Claimant believed that her entitlement on leaving was therefore 65 hours.[21]However, I accept Miss Houghton’s evidence that this shows an annual (1 April to 31 March) entitlement, rather than what had accrued as at 11 June 2023. Miss Houghton relied upon evidence, which I accept, of the Respondent’s holiday policy. That policy clearly provides for situations where employees leave employment mid-way through a holiday year. It says in section 8 “Your outstanding holidays will be calculated based on the point in the holiday year that you leave and the company holiday allowance you've accrued in that time, minus any holiday that you've already taken within that holiday year.”[22]I do not find it necessary to make a finding on the precise amount of holiday entitlement, save to say that it would be just under a quarter of the balance of 65 hours (given that 17 June is just under a quarter of the way through the holiday year of 1 April to 31 March. That amount is more than covered by the fact that the Claimant was paid wages for the whole of June, despite only being employed until the 17 June. I find that that the Claimant has therefore suffered no loss.[23]Given it is not the subject of these proceedings, I make no findings in relation to any potential overpayment to the Claimant. Applicable Law Unlawful deduction from wages under section 13 Employment Rights Act 1996
Applicable Law
[24]Section 13(1) of the Employment Rights Act 1996 (“ERA”) provides that an employer shall not make a deduction from wages of a worker employed by him unless: Case Number: 2306200/2023 6 k. the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or l. the worker has previously signified in writing his agreement or consent to the making of the deduction.[25]However, section 14(1)(a) of the ERA provides that section 13 does not apply where the deduction of wages is for the purposes of recovering an overpayment of wages. Holiday pay[26]Holiday pay is also “wages” within the definition in section 27(1)(a) of the ERA.[27]There will be an unauthorised deduction from wages if an employer fails to pay an employee on termination of employment in lieu of any accrued but untaken leave.
Conclusions
[28]Even on the Claimant’s own evidence, it is clear her last day of employment was 17 June 2023.[29]Given the findings of fact I have made, and the relevant law set out above, it is very clear to me that the Claimant has been paid up to and beyond her last day of employment of 17 June 2023. There has therefore been no deduction of wages.[30]The payments for shifts that she has been paid for, but not worked, in the latter part of June more than cover the entitlement to the annual leave accrued but not taken as at her last day of employment of 17 June 2023. There has therefore also been no unauthorised deduction from wages as regards holiday pay.[31]Both of the Claimant’s claims fail and are therefore dismissed. Case Number: 2306200/2023 7 _____________________________________ Employment Judge Robinson Date: 12 June 2024