Mr B Morris v Engineering Systems Design (Group) Ltd: 2403513/2024 and 2405369/2024
EMPLOYMENT TRIBUNALS
Case No 2403513/2024, 2405369/2024
Between
Mr B MorrisClaimantEngineering Systems Design (Group) LtdRespondent
Before
Employment Judge HolmesDate 11 April 2025
JUDGMENT
It is the judgment of the Tribunal that (references to the parties being those to the original claim) :[1]The respondent made unlawful , and unnotified , deductions from the claimant’s pay in the total sum of £2,134.51, which sum the respondent is ordered to pay him, together with the sum of £249.13 agreed to be due to the claimant in respect of 3.5 days pay (these are net sums, and the respondent is to account to HMRC for any tax and national insurance due upon them);[2]The respondent’s employer’s contract claim fails , and is dismissed.
REASONS
[1]By a claim form presented on 11 June 2024 the claimant brought claims of unlawful deductions from wages and for breach of contract. The respondent, then unrepresented, responded to those claims, disputing them, and seeking in its ET3 to make an employer’s contract claim. That claim was initially rejected by the Tribunal on 1 of 23 the grounds that it did not appear that the claimant had made a claim for breach of contract.[2]A final hearing was listed, and due to be heard before Employment Judge Porter on 26 September 2024. At that hearing, however, the respondent sought reconsideration of the rejection of its employer’s contract claim, which was granted, the claimant accepting that he had indeed presented his claims as breach of contract claims, thereby entitling the respondent to raise its counterclaim. Whilst the parties are reversed for the purposes of that claim, they will be referred to in this judgment as they are parties in the original claim.[3]Employment Judge Porter could not, in these circumstances, proceed with the final hearing which was postponed. She did, however, identify the issues, as follows:(i) When did the employment end?(ii) Did the respondent terminate the claimant’s employment before 12 April 2024?(iii) Was the claimant paid his wages and accrued holiday pay due and owing up to 12 April 2024?(iv) If not:a. Was there an unlawful deduction from wages? If so, in what amount? orb. Did the respondent breach the terms of the contract by terminating the employment contract without notice? If so, what compensation is due to the claimant for breach of contract?(v) Did the respondent make an unlawful deduction from wages by setting off the recruitment agency fees against the claimant’s wages? If so, in what amount?(vi) Is the claimant liable to pay to the respondent the recruitment agency fees in the sum of £4,500?[4]This hearing was accordingly listed as the final hearing. The respondent is now legally represented , and Mr Lassey of counsel appeared for it. The claimant appeared in person, and was again represented by Mr M Eldon, a lay person.[5]At the start of the hearing, however, the parties were able to narrow the issues. The claimant contended that his final payslip, regardless of any deduction to recoup the recruitment fees, was incorrect, in that he was entitled to be paid for a further 3.5 days, up until the date of termination of his employment on 12 April 2024. The respondent agreed this, so the claimant’s entitlements, prior to any issues of deductions, were agreed.[6]There was an agreed bundle (containing, the Employment Judge felt compelled to observe far too many documents, particularly in the form of the whole of the Employee handbook, some 120 pages, of which only 2 were relevant). The claimant gave evidence , but called no witnesses, and Mrs Shelley Guy gave evidence for the respondent. The evidence and the submissions were concluded within the day allocated for the hearing, but, there being insufficient time, the Employment Judge 2 of 23 reserved judgment , which is now given. Following that reservation, the Employment Judge sought further submissions from the parties, which were provided, and have been taken into account in this judgment.[7]Having heard the evidence, read the relevant documents in the bundle , and considered the submissions of both parties, the Tribunal makes the following findings of fact:7.1 The Respondent’s business is that of building services design engineers. It currently has 9 employees in total. Paul Guy is the Managing Director and the sole Director , and Shelley Guy, his wife, is now the Executive Director, although she was previously the HR and Administration Manager. As a significant part of the Respondent’s business is conducted with clients in the Turks and Caicos Islands, Paul Guy is primarily based in the Turks and Caicos Islands. All of the other employees of the Respondent are based in the UK and work primarily from the Respondent’s premises in Bolton. Shelley Guy assisted and dealt with the recruitment of new employees.7.2 In November 2023 the claimant was a new graduate building services engineer and looking for his first employment in the construction industry. He was on LinkedIn, and it was through this medium that he was contacted by Clive Bell of Flux Consulting. This was a recruitment agency which found candidates for employers in with vacancies in the construction industry. The claimant had no contractual relationship with Flux Consulting, which at all material times was contracted to the respondent.7.3 The claimant was contacted by Clive Bell, and informed of the vacancy that the respondent had for a building services engineer. The claimant was interested, and as a result an interview was arranged for 30 October 2023. He was interviewed by Shelley Guy, with two other senior members of the respondent.7.4 The claimant at the time was living in Leeds. The post was to be based in Bolton, and Shelley Guy had some reservations about the claimant’s commitment to a lengthy commute each day, and his ability to cope with the additional stress that might entail in an already stressful role. Consequently , despite the respondent considering he would be competent, the claimant was not immediately offered the post. Following further discussions with Clive Bell , Shelley Guy was reassured that the claimant would move to the Manchester area within a couple of months. The respondent, however, in the light of its concerns, sought some accommodation from Flux, in the form of a rebate of the agency’s fees.7.5 Shelley Guy also claims that Clive Bell was also told by her that the respondent would only employ the claimant if there was a clause in his contract that he would repay the recruitment fees if he left the employment within 12 months. There is no evidence to support this , and the Tribunal accepts the claimant’s evidence that Clive Bell never mentioned this to him.7.6 The respondent was able, however, to negotiate a rebate from Flux, as is evidenced in an email on 6 November 2023 (pages 69-70 and 72 of the bundle) on a sliding scale, whereby if the claimant left in the first 4 weeks, a 100% rebate would be granted, if he left in weeks 5 to 8, a 70% rebate would apply, and if he left in weeks 8 3 of 23 to 12, that would reduce to 40%. Thereafter, if he left after the 13th week of employment, no rebate would be applied.7.7 In those circumstances the respondent decided that a clause would be inserted into the claimant’s contract of employment to the effect that if he left within the first 12 months, he would have to repay to the respondent the recruitment agency fees that it had incurred.7.8 Shelley Guy’s evidence was that she had a phone discussion with the claimant about this clause, and mentioned to him that the recruitment fees would be around £5,000. The claimant disputes this, and says this clause, and the amount that he may be required to repay was never discussed. To the extent that it is germane, the Tribunal prefers the evidence of the claimant on this issue. There is nothing that the respondent has produced which supports Shelley Guy’s evidence, and when she said that she believed that she had informed Paul Guy of this conversation with the claimant by text on 6 November 2023, the text message that she subsequently produced did no such thing, and was in fact the day after, 7 November 2023. Further, given that the claimant’s salary was to be £25,000 per annum, the Tribunal accepts his evidence that had this sum been mentioned to him he would have remembered this, and indeed, would have been likely to try to negotiate some better terms.7.9 Regardless of what was orally discussed, the draft contract of employment provided to the claimant on 6 November 2023 (pages 74 to 76 of the bundle) contained this clause: “9.NOTICE OF TERMINATION TO BE GIVEN BY EMPLOYEE Under 1 month’s service – Nil 1 month’s service or more – 1 month If you leave the company within the first 12 months the company as [sic] the right to recoup the cost of the balance of the agents [sic] fees.”7.10 Following the claimant’s acceptance of the respondent’s offer of employment, on 27 November 2023 Flux Consulting issued its invoice for the recruitment fees. This is in the sum of £3,750.00 plus VAT of £750.00. The respondent (the Tribunal presumes, although it has not expressly been stated by Shelley Guy in her witness statement) paid that invoice. The respondent at that time was itself VAT registered. The respondent has since confirmed that it reclaimed the VAT paid in respect of the invoice from Flux Consulting.7.11 The claimant did not question this clause, or discuss it with the respondent any further.7.12 The respondent then issued in November 2023 the claimant with the Employee handbook (pages 77 to 196 of the bundle) by means of his accessing the respondent’s server , and he signed to acknowledge receipt (pages 198 and 199 of the bundle) .7.13 On page 2 of this document (page 78 of the bundle) is a statement that the Handbook and the corresponding policy documents form part of the claimant’s contract of employment with the respondent. On page 198 of the bundle is an Employee Details 4 of 23 form in which the claimant signed to confirm that he had read and understood the company’s employee handbook.7.14 At Clause 9, headed “Leaving Engineering Systems Design Ltd.” there is a provision headed “c. Other Conditions on Leaving”, which provides: “On leaving, the Company will deduct from any money due to you such sums as you may owe to the Company. These may include, but are not restricted to, any loans, relocation assistance, court orders, fees and payment made for holidays taken in excess of your entitlement.”7.15 The claimant accordingly commenced work for the respondent, and continued to do so until on 13 March 2023 at 7.14 p.m., when he sent an email to Paul Guy in which he resigned, giving one month’s notice , so that his employment would terminate on 12 April 2023 (page 200 of the bundle). Before taking the step the claimant had sought some informal legal advice, as a result of which he believed that the recoupment clause was unenforceable.7.16 Paul Guy responded to the claimant’s email at 7.29 p.m. (page 201 of the bundle), expressing his disappointment, asking if the claimant was now going to take his booked holidays, and asking how he was going to repay the £4500 recruitment fee as required by his contract of employment.7.17 The claimant replied at 8.17 p.m. that day (page 202 of the bundle) . He explained how the reason for his decision had not been the travel, and that he would now not be taking the holiday that he had booked for 25 march 2024. He went on to say this: “In relation to the recruitment fee, I have sought legal advice regarding the clause inserted in the supplementary document, and have been advised that the obligation is not legally binding under contract law. On this basis I do not accept that any monies are owed or due.”7.18 Paul Guy responded at 8.22 p.m that day (pages 204 and 205 of the bundle) to say this: “Unfortunately, the clause in your employment contract is legally binding we have used it before and taken a member of staff to tribunal to retrieve the fees. In addition , you signed the contract in full knowledge of the clause after you had spoken to Shelley. I would suggest that you take more appropriate legal advice because whatever advice you have been given is wrong.” Paul Guy then went on to provide a link to a website on which details of another Tribunal case involving recoupment of recruitment fees could be found. He ended by stating that if the parties ended up going to Tribunal over this legal fees would be added to the amount that the claimant owed.7.19 The claimant briefly replied, at 9.28 p.m. (page 205 of the bundle) to the say that he stood by his previous statement that no monies were owed or due. This exchange 5 of 23 ended with Paul Guy sending a further email at 9.51 p.m. in which he made reference to the particular case contained in the link, and other cases which he claimed would be on Google, reiterated his threat to take the claimant to a Tribunal if he did not pay back the £4500.00 that he owed (which , of course, an employer cannot do, it can only bring such a claim in an Employment Tribunal be means of an employer’s contract claim), and suggested that he take advice from a qualified solicitor.7.20 The claimant had stated in his resignation letter that he would take his outstanding holidays from 5 April to 12 April 2024. He then, as seen above, cancelled holiday that he was going to take from 25 March 2024.7.21 On 28 March 2024 (although the date is not apparent from the message) Paul Guy sent the claimant a text message saying: “I see you have been changing your holidays on Absentia [the respondent’s diary system]. As we have a new Engineer starting on the 2nd April your last working day will be 28th March. Your final payslip will reflect any holiday’s [sic] owed etc.” The claimant replied (again it is unclear when, but it is likely to be the same day) “OK understood” (page 236 of the bundle)7.22 Thursday 28 March 2024 was the day upon which the claimant’s salary was due to be paid, and his colleagues were paid that day. On 28 March 2024 at 5.28 p.m. the respondent sent the claimant an email (page 209 of the bundle) with , it seems, four attachments, namely: A letter dated 28 March 2024 (pages 207 and 208 of the bundle), in which the claimant’s resignation was acknowledged, but stating that “we have agreed” that the claimant’s “last official day with company was 28 March 2024, allowing for the Bank Holiday on 29 March 2024” and that he would be paid for the 1 April Bank Holiday, and had a total of 6.5 days of holiday pay due; The claimant’s P45 (pages 210 to 212 of the bundle) in which the claimant’s leaving date is given as 29 March 2024; An invoice from the respondent to the claimant dated 28 March 2024 (pages 213 and 214 of the bundle) in which the respondent sought payment of the sum of £2,365.49 in respect of “Repayment of Recruitment Fees As Detailed in your employment contract”. The Invoices sets out the Fee Incurred as £4,500.00, and goes on to say “Paid from your March Salary £2,134.51”, leaving a balance of £2,365.49. The claimant’s payslip for March 2024 (page 217 of the bundle) for the period 1 March 2024 to 31 March 2024. That sets out the calculation of the claimant’s pay and deductions (other than the one at issue in these claims) resulting in a net payment due to the claimant of £2,134.51.7.23 Whilst the payslip refers to “electronic transfer” and the amount shown in that section is £2,134.51, the sum paid to the claimant was nil. The payslip, however, makes no reference to the alleged deduction of the total amount payable on account of the claimant’s liability to repay the recruitment fees, so this deduction is , in this payslip, unnotified. 6 of 237.24 The claimant sent an email to Paul Guy at 7.55 p.m. on 28 March 2024 (page 215 of the bundle) complaining that the respondent had withheld payment of his salary, and claiming that he had been told that it would be paid in full. He again disputed the legal advice that the respondent had been given, and threatened that he would take action under the Employment Rights Act 1996 if the monies due to him were not paid by 12 noon on 2 April 2024.7.25 Paul Guy responded by email (headed, as others are “Without Prejudice”, but contended by Mr Lassey not actually to be, or, if it was , any legal privilege was thereby waived) at 8.20 p.m. the same day, denying that he had said the claimant would be paid his full salary, and reiterating that the respondent had followed ACAS advice. He also made reference to, and attached a copy of, Clause 9(c) of the Employee Handbook, referred to above.7.26 Whilst there was then further correspondence which does not advance the issues any, the claimant contacted ACAS to commence early conciliation. The next real development was that the respondent , having been in discussion with ACAS decided that it would pay the claimant an amount equal to the National Living Wage.7.27 This led to an exchange of emails on 26 April 2024 (pages 225 to 231 of the bundle, with, again it has to be observed, an unnecessary and confusing amount of duplication) which resulted in the respondent on 30 April 2024 paying the claimant the sum of £1,793.63, reflecting what it had been advised was the claimant’s entitlement to the National Living Wage.7.28 This exchange is very unclear, and again contains material headed “without prejudice”. Whilst it appears that either side might have claimed that this was some form of binding compromise, so that the claimant could not seek any more sums in respect of his pay , but the respondent could not seek to recover any other sums by way of recoupment of the recruitment fees, neither side has advanced any such argument. Each accepts that the payment of, and receipt of , these sums was without prejudice to their rights to pursue, or to resist , the claim to recoup the fees.7.29 No further payslip was issued, the payment being evidenced by a screenshot at page 232 of the bundle.7.30 This resulted in the respondent then issuing another invoice, still dated 28 March 2024, but clearly a later document , similar to its previous invoice, but with the figures changed. The amount sought in that invoice was now £4,159.12, because the respondent had deducted from the £4,500.00 fees claimed, the lesser amount that already been recouped from the claimant’s pay, which, by reason of the payment on 30 April 2024, had now gone down to £340.88, the difference between the NLW payment, and the original amount payable in the claimant’s March payslip.7.31 Following the hearing, the parties provided the Tribunal with further information, as requested by the Employment Judge, namely that: The amount due to the claimant in respect of 3.5 days (if he is so entitled, depending upon the respondent’s entitlement to recoup the recruitment fee is the net sum of £249.13; 7 of 23 The respondent did reclaim the VAT it paid on the invoice from Flux Consulting in the sum of £750.00.[8]Those then are the relevant facts found by the Tribunal. Whilst little or nothing may turn upon any disputed factual findings, where there was a dispute the Tribunal preferred the evidence of the claimant to that of Shelley Guy. On the main issue of whether the claimant was ever informed expressly of the clause what would be contained in the contract of employment, and, in particular, the amount that the claimant could be required to repay, the Tribunal prefers his account. Shelley Guy produced nothing to support her evidence of such a discussion, and the text message she produced in support of her evidence on this point did nothing of the sort. It is most unlikely, the Tribunal considers that if the claimant had been advised of the potential of his exposure to recoupment of recruitment fees, that he would not have sought (though he may not have been successful) some accommodation to reduce this exposure, or even reconsidered whether he wanted to accept this, his first job, on those terms. The Submissions : (i) The respondent.[9]Both parties made submissions, Mr Lassey, by agreement , going first. He started by pointing out that there were two separate , but interlinked, claims before the Tribunal. The first was the respondent’s employer’s contract claim, in which the issue was whether the agreement that the claimant would be liable to repay the recruitment fees was lawful at common law, including the issue of whether it amounted to a penalty clause. The other claim was a claim that the respondent had breached s.13 of the Employment Rights Act 1996, which prohibits deductions from wages unless they are authorised by some statutory authority, or are agreed in a contractual provision or in writing. Section 13(2) in particular is relevant section, and defines what is meant by a “relevant provision” in a worker’s contract.[10]In relation to penalty clauses, he referred to the first instance judgment in Miss K Kaur v Hatten Wyatt Solicitors Case No. 2301523/2019 , and the judgment of the Supreme Court referred to in that judgment of Cavendish Square Holding BV v El Makdessi; Parking Eye Ltd. v Beavis [2015] UKSC 67 . He submitted that those cases made it clear that it was not open to an Employment Tribunal to re-write the bargain that the parties to a contract had made, or to decide whether it was good bargain. The only issue was whether the clause in question amounted to a penalty clause, attached to a failure to perform. If so, then, but only then , could the Tribunal determine whether its provisions were extravagant, exorbitant or out of all proportion. That issue, however, he submitted, had no application here, because the clause relied upon was not penalty clause.[11]The respondent’s contract claim was, however, a complete answer to the claimant’s deductions from wages claims. The deduction was lawful, and was justified by the provision of the contract at pages 74 to 76 of the bundle. Clause 9 was clear as to its significance and effect. The provisions of the Handbook at page 119 of the handbook, which is contractual in effect, allows the respondent to reclaim any fees, or the balance of any fees. By the date of termination , the balance was the total fee, as this was after the 12 week period during which the respondent could pay a rebated fee.[12]The basic problem for the claimant was that he agreed to be bound by these terms, and whether he came to regret that is not the point. 8 of 23[13]Lord Neuberger in Cavendish Square Holding BV had discussed the nature of the bargain at issue. Provided that the term represented the true nature of the agreement it was not up to the Court or Tribunal to re-write that bargain. That was the end of the matter.[14]The claimant had suggested that this was not truly the agreement that he had made, but this is wrong for four reasons. Firstly, whilst there had been some suggestion that the wording of the clause did not apply to him, and was ambiguous, it was in his contract of employment, and his Handbook, in his capacity as an employee. The clause clearly referred to him.[15]Secondly, the respondent’s agreement with Flux Consulting was of a different character to its agreement with the claimant. The respondent could only negotiate a 12 week rebate with Flux, but was perfectly entitled, and did, agree a 12 month period with the claimant.[16]Thirdly, the nature of the claimant’s obligation was made clear to him in his conversation with Shelley Guy , and he urged the Tribunal to accept her evidence on this.[17]Fourthly, the claimant has produced no evidence that this was not what the parties agreed.[18]The claimant has sought to argue that this is a penalty clause, but , as shown in the Wyatt case , his argument must fail for the same reasons as the claimant’s in that case did. If there was no breach on the part of the claimant to trigger its application, the clause cannot be a penalty clause. The respondent was entitled , as a small employer, to make this legitimate attempt to recover its losses, and it makes good sense to do so. The respondent is therefore entitled to seek to recover the £4500 , inclusive of VAT, that was the “balance” of the fee due.[19]In response to the Employment Judge posing the question of whether, if the respondent as a VAT registered company had reclaimed the VAT element of the fee, it was nonetheless entitled to recoup the total amount from the claimant , Mr Lassey submitted that it was. He said that was clear from the wording of the clause, and the only evidence before the Tribunal was the two invoices. The amount charged to the respondent included VAT, and that was the amount that the respondent was entitled to seek from the claimant. As the Tribunal cannot assess whether this clause amounts to a penalty clause, then whether or not this is unreasonable, or some form of unjust enrichment, is not relevant. Whilst possibly an unpalatable result, that was the position, and there was no evidence that the respondent had actually reclaimed the VAT. If, however, the Tribunal was against the respondent on this issue, the net fee of £3,750.00 was clearly payable.[20]Mr Lassey then turned to the deductions claim. The respondent was entitled to make the deductions that it did by virtue of a relevant provision in the claimant’s contract of employment, in the form of the Contract and the Handbook. This clearly falls within the definition in s.13(2) of the ERA. The respondent had signified that it would be recouping these sums by way of deduction on 26 April 2024, and the claimant agreed to that (pages 225 and 226 of the bundle). This made the deduction lawful. 9 of 23[21]Finally, even if the deductions claims succeed, the respondent should still succeed on the contract claim, and there should be set off.[22]Before concluding, however, the Employment Judge invited Mr Lassey to address the possibility that regardless of the lawfulness of the deductions under s.13, there might nonetheless be a potential liability for making an unnotified deduction within the meaning of s.8(2), the provisions which require the employer to provide the worker with an itemised payslip.[23]Mr Lassey contended that if there was no deduction , that was the end of the matter, the respondent had offset the whole of the amount due. He also referred to page 219 of the bundle, which was the respondent’s invoice due on 15 April 2024. Whilst there may be force in the argument that the initial deduction was unnotified, the invoice made it clear why the claimant was receiving nothing, and after the respondent paid the revised amount based upon the NLW, he was then provided with the revised invoice which showed how the sums due had been calculated, with a lower sum credited. Even if the respondent had technically fallen foul of s.8(2), no award should be made. The submissions (ii) : The claimant.[24]For the claimant , Mr Eldon, not being a lawyer, was brief. The claimant challenged the contractual terms, there was nothing to suggest that he had ever been made aware that the scope of this clause could be some £4500. There was only verbal evidence that he had been informed of this, and his evidence is that no specific amount was ever mentioned.[25]The claimant accepted that he had signed the two documents, but the handbook was 2 days after the contract. These contractual terms were not highlighted. Clause 9 was not clear as to who was to be liable to repay the recruitment fees. The claimant had never gained from this arrangement between Flux and the respondent, and this was purely a matter between them.[26]The claimant challenged whether this clause was proportionate. Was the respondent disadvantaged, especially when the VAT element was taken into account?[27]In relation to the payment of the sum of £1,793.63 , the claimant had never agreed to this, and it was a unilateral variation of his pay, there was no evidence that he had agreed to this.[28]Finally, on the P45 the date of termination was 29 March 2024, whereas the claimant had resigned with effect from 12 April 2024. Had the respondent therefore terminated his employment early? The relevant statutory provisions[29]The relevant provisions in respect of unlawful deductions from wages, and itemised payslips, in the Employment Rights act 1996 are: 8 Itemised pay statement 10 of 23(1) A worker has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.(2) The statement shall contain particulars of— (a) the gross amount of the wages or salary, (b) the amounts of any variable, and (subject to section 9) any fixed, deductions from that gross amount and the purposes for which they are made, (c) the net amount of wages or salary payable, … (d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment[, and (e) where the amount of wages or salary varies by reference to time worked, the total number of hours worked in respect of the variable amount of wages or salary either as— (i) a single aggregate figure, or (ii) separate figures for different types of work or different rates of pay. 13 Right not to suffer unauthorised deductions (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) 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 (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. (2) In this section “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion. 11 of 23(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion. In relation to enforcement, the following provisions apply : 12 Determination of references (1) [N/A] (2) [N/A] (3) Where on a reference under section 11 an employment tribunal finds— a) that an employer has failed to give a worker any pay statement in accordance with section 8, or (b) that a pay statement or standing statement of fixed deductions does not, in relation to a deduction, contain the particulars required to be included in that statement by that section or section 9, the tribunal shall make a declaration to that effect. (4) Where on a reference in the case of which subsection (3) applies the tribunal further finds that any unnotified deductions have been made (from the pay of the worker during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the worker a sum not exceeding the aggregate of the unnotified deductions so made. 5) For the purposes of subsection (4) a deduction is an unnotified deduction if it is made without the employer giving the worker, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by section 8 or 9. Further submissions from the parties.[30]The Employment Judge, upon deliberating, noticed a potential issue upon which the respondent had not specifically addressed the Tribunal in its submissions. Further submissions were therefore invited in a letter from the Tribunal on 28 February 2025. These were received on 20 March 2025 from the respondent, and 31 March from the claimant . The Tribunal reconvened in Chambers on 10 April 2025 to conclude its deliberations. Discussion and findings (i)The deductions and allied claims.[32]Whilst it may seem somewhat about - face to do so, the Employment Judge will consider the deductions claims first, from the standpoint of the mechanics of the process, and compliance with the requirements of the ERA in respect of entitlement to make any deductions, and, the implications of the requirements of s. 8 for an itemised 12 of 23 payslip. The wider issue, therefore, of the enforceability and construction of the clause relied upon to entitle the respondent to make the deductions made, and the closely linked merits of the respondent’s contract claim , will therefore be considered after these more technical issues.[33]Assuming, therefore , for these purposes, the validity of the clause whereby the respondent claims to be entitled to recoup the recruitment fees, the question then arises as to whether the respondent was entitled to do so by means of making the deductions from the claimant’s pay that it did.[34]As is clear, whilst an employer may have a contractual entitlement to recoup certain payments from an employee, the question of whether it is entitled to do so by means of deduction from wages is a different, and highly technical one. An employer may only do so if it can show the deduction was made in accordance with the provisions of s.13 above, namely :(a) 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(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.[35]Here the respondent relies upon Clause 9 of the Statement of Terms of Employment, and also Section 9 of the Employee Handbook. It is to be noted that s.13 only requires one of the provisions to apply.[36]The Tribunal is quite satisfied that the respondent has satisfied the second limb of s.13(1). In signing for and accepting the provisions of the Employee Handbook, the claimant signified his agreement to section 9, which expressly provides the authority to the respondent , upon termination to make various deductions from the claimant’s wages. That this document may postdate the employment contract by a few days does not matter, an employee can signify his agreement to the making of deductions in writing at any time during his employment (just as, should he so wish, he can rescind that agreement). Subject to the validity of Clause 9 of the contract , and its construction, the Tribunal finds that the deduction made was potentially lawful.[37]That is not, however, the end of the matter. Whilst a deduction may be lawful in terms of the employer’s entitlement to make it from wages that the employee would otherwise receive, the provisions of s.8 of the ERA come into play in relation to itemised payslips. The employer is required by s. 8 to provide an itemised payslip, in which the gross amount of the wages or salary payable and the amounts of any variable, and any fixed, deductions from that gross amount are made , and the purposes for which they are made.[38]The payslip provided to the claimant on 28 March 2024 did not do that. It simply showed an entitlement to pay in the net sum of £2,134.51. The only deductions notified were for tax, national insurance and other statutory deductions. What the payslip does not show is the deduction for the recoupment of the agency fees, the effect of which was to reduce the claimant’s pay to nil, in fact, potentially providing a minus figure. Nil, however, is what the claimant received. 13 of 23[39]The respondent therefore, the Tribunal is quite satisfied, made an unnotified deduction from the claimant’s wages. Also to the extent that the payslip did not show that the claimant had a further entitlement to net pay of £249.13, or that this sum too had been deducted, this was a further unnotified deduction.[40]The Tribunal appreciates, of course, that the respondent nonetheless did notify the Tribunal that it was recouping the agency fees, and provided the claimant with an invoice for those fees, so it would be clear to him why he had received no pay. That was not, however, done in the payslip, and so does not comply with the strict provisions of s.8. It may, however, be relevant to what remedy the Tribunal awards for this breach of the legislation. Clause 9 of the Contract of Employment[41]The Tribunal now turns to the central issue , relevant not only to the claimant’s claims, but to the respondent’s contract claim. It is perfectly possible , as a matter of law, that the claimant may succeed on the former, but the respondent also succeeds on the latter, so the overall net position between the parties is the same, in terms of which party owes the other party anything. That is because the deductions from wages and itemised payslip provisions are highly technical, and the mere fact that an employer may have fallen foul of those provisions , so as to outlaw the means of recovering the respondent’s losses by the means it deployed, may not thereby deprive it of its contractual right to enforce any valid contractual clause by way of its counterclaim.[42]The Tribunal accordingly approaches this issue from a different perspective, as it is concerned with contractual issues, not compliance with statutory regulation of deductions and payslips. Of course, if the respondent was not, in any event, entitled contractually to recoup the sums it did, that is a further, and complete , bar to it doing so by way of deductions from wages. If the Tribunal finds that no sum was due at all, no deduction for such a sum can be lawful. Penalty clause?[43]It is therefore the contractual position that matters. The starting point for this discussion is the legal issue of whether the Tribunal is entitled to consider the clause relied upon by the respondent as entitling it to recoup the recruitment fees at all. The respondent’s argument, based upon the caselaw cited by Mr Lassey, is that the Tribunal is precluded from even considering whether the clause is enforceable because it is not, on true analysis, a penalty clause.[44]This requires consideration of the Supreme Court judgment in Cavendish Square Holding BV v El Makdessi; Parking Eye Ltd. v Beavis [2015] UKSC 67 . As Mr Lassey submitted, that is usefully summarised, and applied, in the Employment Tribunal judgment in Miss K Kaur v Hatten Wyatt Solicitors Case No. 2301523/2019.[45]To summarise, the main parts of the judgment of Lord Neuberger, the President, in Cavendish, as Employment Judge Burge did in Kaur, they are at paragraph 12: 14 of 23 “In England, it has always been considered that a provision could not be a penalty unless it provided an exorbitant alternative to common law damages. This meant it had to be a provision operating on a breach of contract.” And at paragraph 13: “This principle is worth restating at the outset of any analysis of the penalty rule, because it explains much about the way in which it has developed. There is a fundamental difference between a jurisdiction to review the fairness of a contractual obligation and a jurisdiction to regulate the remedy for its breach. Leaving aside challenges going to the reality of consent, such as those based on fraud, duress or undue influence, the courts do not review the fairness of men's bargains either at law or in equity. The penalty rule regulates only the remedies available for breach of a party's primary obligations, not the primary obligations themselves.” and at paragraph 14: “This means that in some cases the application of the penalty rule may depend on how the relevant obligation is framed in the instrument, ie whether as a conditional primary obligation or a secondary obligation providing a contractual alternative to damages at law. Thus, where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty; but if the contract does not impose (expressly or impliedly) an obligation to perform the act, but simply provides that, if one party does not perform, he will pay the other party a specified sum, the obligation to pay the specified sum is a conditional primary obligation and cannot be a penalty.” The President went on to say at paragraph 31: The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a preestimate of loss. These are not natural opposites or mutually exclusive categories. A damages clause may be neither or both. The fact that the clause is not a preestimate of loss does not therefore, at any rate without more, mean that it is penal. To describe it as a deterrent (or, to use the Latin equivalent, in terrorem) does not add anything. A deterrent provision in a contract is simply one species of provision designed to influence the conduct of the party potentially affected. It is no different in this respect from a contractual inducement. Neither is it inherently penal or contrary to the policy of the law. The question whether it is enforceable should depend on whether the means by which the contracting party's conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.”[46]That the Employment Judge is satisfied, is the law, and applying it here means that the Tribunal cannot consider whether the clause relied upon by the respondent can be struck down (effectively) as unenforceable. That is because, as submitted, it is not a penalty clause. Its terms are clear, they apply if the claimant leaves the employment within the first 12 months. That means whether he leaves lawfully, by giving notice, as he did, or without it. It is not, therefore a provision which applies when the claimant breached the contract, it applied whether he did or do not, and hence is 15 of 23 not, as Cavendish makes clear , a penalty clause. The Tribunal is therefore precluded from considering it any further, it is enforceable as a contractual term. Enforcability if the respondent is in breach[47]That, however, is not the end of the matter. As identified in the List of Issues, the question arises of whether, the claimant having given the requisite notice to terminate the contract lawfully, the respondent then wrongfully terminated in prematurely, and, if so, what effect that has upon its ability to enforce the clause that , as has been found, is otherwise contractually perfectly enforceable?[48]It was on this issue, and an allied issue, that the parties were invited to make further submissions. The respondent’ submissions were sent on 20 March 2025, and the claimant’s on 31 March 2025, although, curiously, the actual document is dated 2 April 2025.[49]The questions asked by the Tribunal, and the response of each party , are best communicated by reciting the terms of these two documents. The respondent’s reads thus (the Tribunal’s question being in numbered paragraphs and in italics): 1. What is the respondent's case upon the date of termination, and whether it was brought forward from 12 April 2024, and, if it was, how was it so advanced? The respondent’s position is , firstly, that there was no early termination of the claimant’s contract of employment by the respondent. The position remains as set out by Mrs Guy in her unchallenged evidence to the Tribunal at paragraph 17 of her witness statement: “There was a further exchange of emails between the Claimant and Paul on 13 March 2024 which I was copied in on [pp203-206]. On 28 March 2024, a letter was sent by the Respondent by email to the Claimant [pp207-208] acknowledging his resignation and confirming his last day in the office. It had been agreed between Paul and the Claimant that his last day in work was 28 March 2024 taking into account the Claimant’s holiday entitlement and further, as the Respondent had appointed a new engineer this was agreed in order to free up office space to enable the new engineer to start work on 2 April 2024 [p236]. The remainder of the Claimant’s notice was taken partly as holidays with the remainder being paid in lieu. Paul’s letter also set out clearly the provisions in the Claimant’s Employment Contract and in the Handbook enabling the Respondent to require the repayment of the recruitment agent’s fees given that the Claimant was leaving within 12 months of his start date.” Whilst it is acknowledged that the Claimant’s P45 gives his leaving date as 29 March 2024, given that he continued to be paid by the Respondent for some time after that date (until at least 9 April 2024), that is clearly not the date on which his employment formally ended; it is simply the last day he was physically present in the office. Again, the Tribunal is invited to accept Mrs Guy’s unchallenged evidence on this point. The Respondent’s right to enforce its recoupment clause at Clause 9 of the Contract of Employment thus remains unaffected. 16 of 23 2. If the respondent was found unilaterally to have ended the contract of employment before the expiry of the notice period, and hence to be in breach of contract, what is the effect of that breach upon its right to enforce (if otherwise valid) either by way of deductions or by way of its contract claim, the recoupment clause at Clause 9 of the Contract of Employment? Further or in the alternative, even to the extent that the Respondent did somehow terminate the Claimant’s contract of employment prior to 12 April 2024, it would not be fair or reasonable to deprive the Respondent of the protection of a clause that was intended to safeguard their legitimate business interests merely because they have acted impermissibly in dismissing him; that would be wholly disproportionate to the gravity of the breach concerned. To this end, the Respondent relies upon the observations of Phillips LJ (as he then was) in Rock Refrigeration Ltd v Jones and another [1997] 1 All ER 1 at 19 – 20, who doubted that the rule in General Billposting should apply in every case where there had been a repudiatory termination by the employer. He said: “The considerations to which I have just referred demonstrate the practical problems that General Billposting can pose for the employer faced with an employee who repudiates the contract. But that case also poses practical problems for the employer who repudiates the contract. I do not accept that it is unreasonable for an employer to seek to impose restraints on his employee that will subsist, even should the employment come to an end as a consequence of a repudiation by the employer. On the contrary, it seems to me commercially desirable that it should be possible to achieve this end, for the following reasons. Where an employer discloses to an employee confidential information, or otherwise puts the employee in a position to harm the employer's goodwill, it will usually be reasonable to impose negative restraints sufficient to protect those legitimate interests of the employer. Contracts of employment are now subject to complex statutory regulation, much of it designed to protect the employee. Cases of deliberate wrongful dismissal of employees, or repudiatory breach of the duties owed to them, are much less common than bona fide disputes as to whether or not there has been unfair or constructive dismissal. Employees who have been unfairly dismissed are entitled to statutory compensation. It does not seem to me necessarily fair or reasonable that an employer who is held liable to pay such compensation should also be at risk of losing the protection that is reasonably necessary to safeguard his confidential information or goodwill.” It follows that there must necessarily be certain circumstances in which it is not necessarily fair or reasonable to prevent an employer who has unlawfully terminated the contract of employment from continuing to rely upon a specific contractual term. A clause which provides for the recoupment of monies owed by an employee on termination is an obvious example of the type of “commercially desirable” situation to which Phillips LJ was referring: especially given the sums at stake in the parties’ respective claims and counterclaim. The Respondent’s right to enforce its recoupment clause at Clause 9 of the Contract of Employment should therefore remain unaffected. Further or in the alternative, the Respondent submits that any damages payable in respect of the Claimant’s breach of contract complaint should be subject to equitable 17 of 23 set off. That is so because the monies owed to the Respondent through its counterclaim are sufficiently closely connected to the Claimant’s claim(s) such that it would be unjust to require the Respondent to pay the claim without deduction (see: Ridge v HM Land Registry [2014] EAT 0485/12 at paragraph 72 - 73). 3. Further, regardless of any issue as to termination by the respondent, as the respondent has conceded that the claimant was entitled , subject to the "clawback" clause, to be paid in respect of 3.5 days up to 12 April 2024, but was not paid, nor was his entitlement to be paid acknowledged in his final payslip, if this is found to be a breach on the part of the respondent, what effect does this have upon the respondent's right to enforce Clause 9, either by way of deductions, or by way of its contract claim? To the extent that the Respondent is found to be in breach of contract as a result of this additional matter, it is submitted their actions in this regard were clearly not so serious as to amount to a repudiatory breach that 'evince[s] an intention no longer to be bound by the contract'. (per Lord Collins in General Billposting Co ltd v Atkinson [1909] AC 118 HL). As the Respondent conceded in evidence, any failure to pay the Claimant the correct sum owed to him was as a result of a simple administrative error. It is difficult to see how such a minor transgression should result in an employee being released from the entirety of their contractual obligations. That is evidently not what the House of Lords intended by their decision in General Billposting, and it would be wholly disproportionate to do so given the sums at stake in the parties’ respective claims and counterclaims. The Respondent’s right to enforce its recoupment clause at Clause 9 of the Contract of Employment should not be affected by this minor procedural transgression.[50]The claimant’s response is as follows: “The respondent issued a text message to the claimant (page 236 of the bundle) which states “your last day working at the company will be 28th March. Your final payslip will reflect any holiday’s owed etc.” . Whilst the claimant replies with “OK understood”, this does not suggest any agreement by the claimant to the early termination of his employment before the 12th April, nor any agreement to a shortfall of wages by 3.5 days. There is no evidence of any agreement between the respondent and claimant to terminate the contract sooner than the 12th April. There has not been any procedure followed to terminate the contract of employment early by the employer, nor any correspondence confirming the decision by the respondent to terminate the claimant’s employment before the contractual notice period to the 12th April. It has been acknowledged by the respondent during the tribunal that there has been a shortfall of 3.5 days pay. Clause 9 of the contract of employment (page 76 of the bundle) has been invalidated by the unilateral decision made by the respondent to terminate the claimant’s employment early, preventing them from completing their contractual notice period.” The enforceability issues: (i) was there an early , unilateral, unlawful termination by the respondent? 18 of 23[51]This is the first factual issue to be determined in this context. The respondent’s primary case is that there was no early termination. In support of this the respondent cites the evidence set out above, which is uncontested. The question for the Tribunal is what does this evidence mean, as a matter of construction.[52]The problem here for the respondent is its imprecise use of language. The clear contractual position is that the claimant had given notice, due to expire on 12 April 2024. The question then is did the employment end sooner, and, if so, how? There are only three ways that the parties to an employment contract can end it, one is that the employee ends it – resignation, another is that the employer ends it – dismissal, or that they agree to end it – mutual termination. Whilst the claimant had instigated the termination by his resignation, was it brought to and end sooner, or not, and how?[53]The respondent’s primary case is that the employment did not end sooner than 12 April 2024, so there was no early termination by either party. When, then did it end? The only evidence of this is the exchange of texts, the respondent’s letter of 28 March 2024 (page 142 of the bundle) , the claimant’s P45 in which the termination date is given as 29 March 2024, and his final payslip. That latter document is undated, but has a payment date of 30 March 2024, and is stated to cover the period from 1 March 2024 to 31 March 2024. No later payslip was issued.[54]Additionally, the respondent did not, until a claim for such payment was made in these proceedings, pay the claimant for 3.5 days to which he was entitled up to the proposed end of his employment on 12 April 2024.[55]This situation, of course, highlights the danger of imprecise language, which the Tribunal will also now have to consider in relation to the next issue, namely, the employment having ended before the expiry of the notice that the claimant had given, how did it so end, in particular, who ended it?[56]The respondent’s alternative position is that if there was an early termination, it was consensual. This is based upon the uncontested evidence (as can be seen in the bundle) of the text message exchange between the claimant and Paul Guy on (it seems, the date is not apparent) 28 March 2024 (page 236 of the bundle), and Paul Guy’s letter of the same date (page 207 of the bundle).[57]In the text exchange , which Paul Guy, of course instigated, he tells (there is no attempt to seek agreement) the claimant that his “last day working at the company” will be 28 March 2024. The claimant’s reply is simply “OK,understood”. Paul Guy’s letter the same day, however, refers to “we” having agreed – there is no evidence of this, only the text exchange – that the claimants “last official day with the company is 28 March 2024, allowing for the bank holiday on 29 March 2024. The letter goes on, however, to refer to the claimant’s last day of notice being in April, and how he would be entitled to payment for a Bank Holiday on 1 April 2024, which was Easter Monday that year, plus other accrued holiday pay of 6.5 days.[58]Unfortunately, what the respondent did next was not consistent with the claimant’s employment continuing until 12 April 2024, because it issued the P45 with the termination date of 29 March 2024, issued the payslip up to the end of March 2024, and no other, and then failed to pay the claimant for 3.5 days pay to which he was entitled. 19 of 23[59]The Employment Judge considers that the only construction to be placed on all these facts is that the respondent treated the claimant’s employment as having terminated on 29 March 2024. What payments were made in lieu is irrelevant, this is not a case in which either side claims that there was an entitlement to payment in lieu of notice which would operate then to terminate the employment contract when made. In short, there is every indication that the claimant’s employment ended before 12 April 2024, and nothing , other than the letter of 28 March 2024, which goes to other way to show that it did not.[60]The Tribunal does not accept that there was any consensual termination here, the claimant was simply informed of what the respondent was going to do, and it then did it. Any agreement was to when his last working day would be , which is not he same as when his employment would end.[61]On that basis, the Tribunal considers that the respondent did unilaterally, and in breach of contract, terminate the claimant’s employment ahead of when his notice was due to expire, and therefore wrongfully dismissed him.[62]The Tribunal will go on to consider the ramifications of that finding below, but there is another issue to consider. The respondent failed to pay the claimant the net sum of £249.13, 3.5 days pay. That must be, the Employment Judge considers, a breach of contract on the part if the respondent, and the respondent has not sought to argue otherwise. The enforceability issues: (ii) the effect of the finding that the respondent was in breach[63]The question now for the Tribunal, having found that the respondent both in terminating the claimant’s employment prematurely and in not paying him the respondent breached the contract of employment, is what is the effect that this has upon the respondent’s ability to enforce the provisions of Clause 9, the basis of its counterclaim?[64]As a general rule of contract law, a party who has acted in breach of contract can no longer rely on the terms of that contract to his or her own advantage. That is a long established principle, applied in the employment law context by the House of Lords in General Billposting Co Ltd v Atkinson [1909] AC 118 HL.[65]For the respondent, Mr Lassey argues that even if the Tribunal finds that the respondent was in repudiatory breach, this should not deprive it of the right to enforce this clause. He cites Rock Refrigeration Ltd v Jones and another [1997] 1 All ER 1 as authority for the proposition that not every repudiatory breach of contract on the part of an employer should deprive it of the right to enforce other terms of the contract of employment. In particular , he refers to paras. 19 and 20 of the judgment of Phillips LJ, as set out above.[66]The Employment Judge, with respect, does not find this reasoning persuasive. Firstly, it must be recalled that Rock Refrigeration , as are most cases in this field, is a case about post-termination restrictions, where the employer seeks to prevent the ex-employee from carrying out certain activities post – termination, notwithstanding that the dismissal of that employee was wrongful. Clause 9 in this case is not such a clause, it is a clause which requires the employee, post – termination to pay a certain 20 of 23 sum to the respondent. As established, it is not a penalty clause, it does not apply only if the claimant is in breach of the contract, it simply applies if he leaves during a 12 month period. It is not, therefore a clause protecting any confidential information, or preventing unfair post – termination competition , or protecting any other legitimate interests of the respondent, it is simply a commercial term which seeks to recoup certain costs incurred in employing the claimant.[67]To the extent that the observations of Phillips LJ as to the degree to which the principles in General Billposting “should” be applied are relevant (and this appears to be a gloss on that authority which is not the ratio of the decision in Rock Refrigeration), the Employment Judge considers that the position in relation to the clause at issue in this case is rather different , as it is not a post – termination restrictive covenant, it is a repayment clause.[68]Whilst not cited by Mr Lassey, there have been other cases in which the validity of the General Billposting principles have been questioned. When the matter arose directly before Choudhury J in Brown v Neon Management Services Ltd [2018] EWHC 2137 (QB), [2019] IRLR 30 the General Billposting rule was reaffirmed. It was held that the employer had indeed been in fundamental breach of contract in its treatment of the employees, which they then argued meant that they were no longer bound by post-termination restraint clauses. On this point, the employer argued that the venerable rule in General Billposting should now be rejected. This was in the light of the above , and other, judicial criticisms of it as too sweeping. The employer here also relied on certain remarks in Geys v Société Générale [2013] UKSC 63, [2013] IRLR 122, though these seemed to be more ambiguous on the point. However, in giving this part of his judgment, Choudhury J disapproved of this argument in very clear terms, applied General Billposting and held that the post-termination clauses here fell away as a result of the employer's repudiatory breaches. At para. 171 he said: ''In my judgment, none of these judicial comments, all of which were obiter, provides a firm foundation for setting aside such a long-established rule as the General Bill Posting Rule, particularly where, as in this case, it is the repudiator who seeks to enforce the PTRs [Post Termination Restrictions] against the innocent parties.''[69]This Tribunal accordingly considers that it should continue to apply General Billposting Co Ltd v Atkinson [1909] AC 118 HL unless and until it is overruled by the Supreme Court. Even if it were to apply the approach that Phillips LJ urges in Rock Refrigeration the Tribunal does not see that it is not fair or reasonable to prevent the respondent from relying upon Clause 9, when it has breached the employment contract not only by terminating it early, but also by failing to pay the claimant’s wages. Whilst made light of by Mr Lassey in his further submissions , the obligation to pay wages is a fundamental one , and any failure to pay can amount to a repudiatory breach of contract. The reason for that failure , frankly, is irrelevant. An employer either complies with its contractual obligations or it does not. The explanation for its failure is irrelevant.[70]For these reasons, the Tribunal has concluded that the respondent is not entitled to enforce Cause 9 so as to recoup from the claimant the employment agency fees incurred in connection with employing the claimant. (In any event, as will be apparent, the Tribunal could not countenance recovery of the full amount claimed, when, as was later admitted, the respondent had recouped the VAT element ). 21 of 23
Conclusion
[71]The Tribunal’s findings means, therefore that the counterclaim fails, and that, as the respondent was not contractually entitled to recover the sums that it sought to, it had no legal basis to making the deductions from the claimant’s wages that it did, and the claimant’s claim of unlawful deductions from wages succeeds. As will also be apparent , though it is academic, the claimant would also have succeeded in respect of the deduction of the whole of his wages from the sum indicated in the March payslip on the basis that this was an unnotified deduction. The Tribunal need not consider further whether it would order repayment in these circumstances for the unnotified deduction, as it is ordering repayment in respect of the unlawful deduction in any event.[72]Finally, if the Employment Judge has understood the communications from the parties correctly, the sum of £249.13 conceded to be the claimant’s further entitlement to pay for 3.5 days has not actually been paid, and should therefore be included as part of the award for unlawful deductions from wages, which the Tribunal has ordered in this judgment. Approved by: