Mrs H Mashingaidze v Advinia Health Care Ltd: 2402412/2025
JUDGMENT
[1]The complaint of unauthorised deduction from wages is not well-founded and is dismissed.REASONS
[1]The claimant is employed by the respondent and has been since February 2025. She brought a claim alleging that the respondent had made unauthorised deductions from her wages. Claims and Issues[2]The claim brought by the claimant had been accepted as a claim for unauthorised deduction from wages. The Employment Tribunal wrote to the claimant on 1 September explaining that Employment Judge Cookson had reviewed the claim form and accepted it on that basis because that was a claim that the Tribunal had jurisdiction to consider. It was explained that the claimant could not bring a claim for breach of contract in the Employment Tribunal as she was still employed. In part 8 of the claim form, she had ticked the box for another type of claim and listed unfair labour practices, extortion and intimidation. Those complaints had not been accepted because the Tribunal does not have the jurisdiction to consider those complaints.[3]At the start of this hearing, I confirmed to the parties that the only claim which was being considered and determined was a claim for unauthorised deduction from wages.[4]At the start of the hearing, the claimant’s representative said that he had previously sent the Tribunal an email addressing the claims. A copy of that email was resent, and an adjournment was taken so that I could read it. In that email, the claimant’s representative sought to rely upon section 212A of the Trade Union & Labour Relations (Consolidation) Act 1992 in asserting that I should conduct arbitration in the claim. During the hearing, I explained to the claimant’s representative that was a provision which addressed what ACAS do. The hearing had been arranged for me to determine the claim, which is what I was going to do.[5]In his submission document (the email referred to in the previous paragraph), the claimant’s representative set out four things which the claimant was claiming as follows: 5.1. A Home office application fee of £475; 5.2. Borrowing costs of £200; 5.3. Unpaid wages of £648; and 5.4. Travelling expenses of £275.[6]The claimant’s representative also said that, to be reasonable, the claimant was only seeking to recover £850. When I sought to clarify that figure, he explained that was an arbitrary amount, it was not only a specific part or element of the amounts claimed.Procedure
[7]The claimant did not attend the hearing. She was represented by her husband. Mr Ramsbottom, consultant, represented the respondent.[8]Unfortunately, the arrangements for the hearing had been confused and confusing. The Tribunal informed the parties that the hearing would be conducted inperson at Manchester Employment Tribunal, but recorded on the Tribunal’s systems that the hearing would be conducted remotely by CVP, and accordingly made arrangements on that basis. That included sending the parties the link for attending a video hearing, the day before the hearing. Not unreasonably, the claimant’s husband assumed that meant the hearing would be conducted by video and he attended remotely. The respondent and its witnesses attended the Tribunal building in-person. The room in which the hearing was being conducted was not one which had the facilities to enable a hybrid hearing with both remote and in-person attendees. As a result, arrangements were made for the attendees from the respondent to use a conference room and they attended the hearing remotely by CVP even though they were present in the Tribunal building. At the start of the hearing, I apologised for the confusion. Both parties agreed that they were happy to proceed with the final hearing on the basis arranged, with both parties attending by video. Accordingly, the hearing was conducted by CVP remote video technology with both parties and all witnesses attending remotely (albeit that the respondents’ attendees did so from within the Tribunal building).[9]The respondent provided me with a bundle of documents. Where there is a number in brackets included in this Judgment, that is a reference to the page in that bundle. The claimant did not provide any documents, save for the submission email which it was arranged that the claimant’s husband would resend at the start of the hearing.[10]I was provided with two witness statements for witnesses called by the respondent: Mrs Leanne Dixon, recruitment manager; and Miss Jennifer Masbate, home manager. I read the witness statements that I was provided and I read the documents in the bundle referred to by those witnesses.[11]In the submission email, the claimant’s husband stated that he would not be calling any witnesses. I was not provided with a witness statement from the claimant. She did not attend to give evidence.[12]I heard evidence from each of the respondent’s witnesses, who confirmed the accuracy of their statements under oath. They were cross-examined by the claimant’s representative. After asking only a few questions of Miss Masbate, the claimant’s representative stated that he did not need to question her further as he accepted what she said in her statement (his dispute was with what she had been told by others, not with what Miss Masbate herself said had occurred).[13]After the evidence was heard, each of the parties was given the opportunity to make submissions. They each made their submissions orally.[14]The vast majority of the time allocated was used in hearing the evidence and the submissions. As a result, there was insufficient time remaining at the end of the hearing for me to consider what I had heard, reach a decision, and inform the parties of my decision. I accordingly reserved my decision. My decision and the reasons for it are set out in this document.Facts
[15]The claimant was interviewed for the job with the respondent on 4 February 2025. The claimant was successful and was offered the job. In submissions, the claimant’s husband referred to what the claimant had been told at interview, but I heard no evidence from her about what was said. In her witness statement, Miss Masbate said that the claimant was offered a 38.5 hours per week contract.[16]The claimant resigned from her previous employment when she was offered the job by the respondent.[17]The claimant required sponsorship to be able to work and remain in the UK. It was clear that the arrangements made for obtaining that sponsorship from the respondent took longer than expected. I was provided with a number of emails in which the claimant chased for that to be concluded.[18]The claimant’s continuous employment with the respondent commenced on 24 February 2025.[19]I was provided with a statement of terms and conditions of employment signed by the claimant and Miss Masbate on 25 February 2025 (38). Regarding hours of work, that said that the actual hours of work each week would be as necessitated by the needs of the business, usually with advanced notice. The document did not provide for any fixed hours per week or days/times for work. An hourly rate of pay was recorded, not a salary or fixed wage. The document also said (40) (I will refer to this as the entire agreement clause): “This agreement is in substitution for any previous contract of employment or other arrangements (whether formal or informal) relating to your employment with the Company, which are deemed to have been terminated by mutual consent with effect from the date of this agreement”[20]The claimant’s certificate of sponsorship was processed by the respondent’s solicitors. They charged the claimant for the work undertaken. On 16 April 2025 the claimant was reimbursed the sum of £1,200 which she had paid to the solicitors.[21]It was the claimant’s case that from 31 December 2024 an employer was not able to require an employee to pay the cost of sponsorship. It was the respondent’s case and Mrs Dixon’s evidence that the change occurred in February 2025. She described the claimant as having been recruited on the cusp of the change. I was not provided with any documents, law or guidance which detailed precisely from when the prohibition applied. Whenever it occurred, the claimant ultimately was reimbursed for the costs. Part of her complaint arose from the financial difficulty she faced in needing to pay the solicitors’ invoice in the first place.[22]The claimant applied for her visa herself. The sum of £475 was the sum she paid directly to the Home Office when applying for that visa.[23]It was Miss Masbate’s evidence that she had a telephone call from the respondent’s divisional director and was told that the claimant could only work for twenty hours per week based upon a routine compliance check via a Government website. It was the respondent’s case that the requirement arose because the claimant was still sponsored by another company. As a result, the claimant worked only twenty hours per week from 27 March 2025 until 13 May 2025.[24]The £648 claimed as unpaid wages was the shortfall in the amount the claimant earned in the period during which she worked only twenty hours per week rather than 38.5 hours per week. The respondent agreed that was the difference in pay.[25]I am told that the £200 borrowing fee was the cost to the claimant of borrowing money. I was not provided with any evidence of those costs. I was also not provided with any detailed break down of whether those costs arose from the need to pay the solicitors or the shortfall in expected earnings (or both).[26]I was told that the £275 of traveling expenses was incurred by the claimant in travelling to other local potential employers trying to find employment, during the period when the respondent either did not provide her with work or only provided her with twenty hours per week. Those expenses were not evidenced or broken down.[27]On 9 May 2025, the claimant was granted her visa and her hours increased to 38.5 hours per week from 13 May. I understand that she has continued to work those hours since that date.[28]In the bundle was un updated statement of terms and conditions of employment signed by the claimant and Miss Masbate on 2 June 2025 (45). That provided that the claimant’s normal hours of work were 38.5 hours per week.[29]This Judgment does not seek to address every point about which I heard or about which the parties disagreed. It only includes the points which I considered relevant to the issues which I needed to consider in order to decide if the claims succeeded or failed. If I have not mentioned a particular point, it does not mean that I have overlooked it, but rather I have either not considered it relevant to the issues I needed to determine or I have not considered it necessary to refer to in these reasons.The Law
[30]Neither party placed any reliance upon any particular point of law or any case law, save for the dispute which I heard about the date when employers were no longer allowed to seek a contribution or payment from an employee to a certificate of sponsorship (and for that I was not actually provided any information about the statute, statutory instrument or guidance which provided for the change).[31]As had been highlighted to the claimant in the Tribunal’s correspondence and as was confirmed in the hearing, the claimant was not able to pursue a claim for breach of contract in the Employment Tribunal as she remained in employment.[32]The claim which she was able to pursue and which I was determining was a claim for unauthorised deduction from wages. That is a claim under section 23 of the Employment Rights Act 1996 which relies upon what is said in section 13 of the Employment Rights Act 1996: “An employer shall not make a deduction from the wages of a worker employed by him unless:(a) The action is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract; or(b) The worker has previously signified in writing his agreement or consent to the making of the deduction.”[33]In practice, I therefore needed to determine: whether the claimant was contractually due the amounts which she claimed; if so, whether the claimant was not paid an amount to which she was entitled as a payment of wages; and, if not, whether any deduction made from the payment of any wages, was otherwise authorised in one of the ways described and/or was reimbursement of an overpayment of wages. Conclusions – applying the Law to the Facts[34]In his submissions, the claimant’s representative said that if I allowed companies to act in the way that the respondent had, that would not be appropriate. In that submission, as with elements of the case pursued, he misunderstood the Tribunal’s role in determining the claim brought. The only claim which the claimant was able to pursue was one of unauthorised deduction from wages. What I needed to decide was whether there had been an unauthorised deduction. I am not empowered to address or determine other issues, such as whether or not I considered that the respondent acted in a way which was appropriate or fair. I considered each of the sums claimed on the claimant’s behalf and the issues as they applied to those sums claimed.[35]The Home office application fee of £475 paid for the visa application, was not an amount which the claimant was able to recover as an unauthorised deduction from her wages. She paid that sum to the Home Office. It was not a deduction made by the respondent.[36]I was not provided with any evidence to substantiate the £200 borrowing costs claimed. Even had such a claim been one which was validly brought, I would have required evidence to award such an amount. It was not clear whether the sum claimed arose from the shortfall in pay when the claimant was only given twenty hours per week, or from the requirement to pay for the solicitors’ fees involved in the certificate of sponsorship first before they were reimbursed. The former might have been recoverable under section 24(2) of the Employment Rights Act 1996 had the claimant succeeded in her complaint regarding the lower pay whilst working twenty hours per week, but as she has not succeeded in that claim it could not, in any event, have been awarded. If it was the cost of borrowing the sum for the latter, that was not a claim which I was empowered to consider (and it was not in any event proved).[37]The travelling expenses claimed were simply not something which could be sought as part of the claim advanced and could not have been awarded (even had they been evidenced, which they weren’t).[38]The key issue in the claim and the one which required the most consideration, was the claim for £648 of unpaid wages. I entirely understood why it was that the claimant was aggrieved and why she sought the difference in pay between the 20 hours per week she was offered from 27 March 2025 until 13 May 2025 and the 38½ hours she believed she should have been offered. I can entirely understand why the claimant perceived that to be unfair.[39]The starting point in determining that complaint, was to consider whether the claimant was entitled to 38½ hours per week. According to the statement of terms and conditions which she had signed prior to the period in consideration, she was not. There was no set number of hours which the respondent had committed to. As a result, a failure to offer any more than twenty hours or to pay for those hours, was not a breach of the contract or an unauthorised deduction, because the respondent had not committed itself contractually to make those hours available.[40]During his submissions, with reference to that statement of terms and conditions of employment, I asked the claimant’s representative what it was he relied upon when asserting that the claimant was entitled to 38½ hours per week. He referred to two things. He referred to what had been said in an offer letter, but I was not provided with a copy of any offer letter and therefore could not make any decision based upon what it might have said. He also relied upon what the claimant was told in interview. I did not have the benefit of any evidence from the claimant about what exactly it was she was told in interview, but I did note that Miss Masbate’s evidence was that the claimant was offered a 38.5 hours per week contract. The difficulty that the claimant had in relying upon what she might have been told in interview was that the entire agreement clause in the statement of terms and conditions, to which I have referred when addressing the facts, meant that what was said in the document (with no commitment to the number of hours) replaced what might have been said in the interview (if there was a commitment made) and therefore any argument for the higher number of hours could not succeed based upon the contract’s terms.[41]I have decided that argument based upon the terms of the relevant document in place at the time. As the respondent was not required to provide the claimant with a specific number of hours at the relevant time, it could not have been an unlawful deduction for her not to be paid for the number of hours she said should have been offered. However, even had the claimant succeeded in her argument about the terms of the contract, I would not have had the jurisdiction to award the claimant the sum sought, as technically the argument was one for breach of contract (based upon the number of hours which she says she should have been offered), not unauthorised deductions from wages (which would have been the case if she had worked the hours and not been paid for them, or there had been a contractual obligation to make the payment whether or not she worked the hours).[42]In terms of the respondent’s reason for not providing more than twenty hours per week, I would have accepted that an employer cannot be obliged to employ someone for more hours than is allowed under their relevant documentation governing their right to work in the UK. In this case, there was something of a paucity of evidence about what was the correct position. The claimant did not prove that she could lawfully have worked more than twenty hours per week during the relevant period. The respondent did not prove that she could not do so. However, as the claim did not succeed in any event for the reasons I have explained, I did not need to address that gap in the evidence.Summary
[43]For the reasons explained above, the claimant did not succeed in her claim. Employment Judge Phil Allen 22 December 2025