Miss J George v Clements Agency Ltd: 3200295/2019
JUDGMENT
[1]The complaint to the Employment Tribunal that the employer has made a deduction from wages in contravention of section 13 is well-founded and I make a declaration to that effect.[2]I order the respondent to pay the claimant £1035, being the amount of the deductions made in contravention of section 13 ERA 1996.[3]The claim for constructive dismissal is upheld.[5]The matter will be listed for a remedies hearing to determine the basic and compensatory award due to the claimant.REASONS
Background
[1]The claimant was employed from 1st January 2011 until she resigned on 6th February 2019. Her role was in the marketing team approaching the owners of commercial properties to create leads to whom the respondent could sell its services disputing the calculation of commercial rateable values as set by HMRC.[2]I heard evidence from the claimant on her own behalf and from another former employee of the respondent, Ms Dionne Atkins Lindo. I heard evidence from four individuals on behalf the respondent, Mr Elliot Davis, Mrs Leigh Munden, Mr Adam Cashman and Mrs Susan Leslie. I was provided with a bundle of 138 pages which was then supplemented with documents relating to the incorporation of Phoenix Agency Group Limited, medical information relating to the claimant and three additional payslips for periods in 2014.[3]In reaching my decision I considered all the evidence I heard and those parts of the documents in the bundle to which I was directed.The issues
[4]The claimant brings claims for constructive unfair dismissal and for unlawful deductions. It was agreed that the claimant is an employee.[5]The issues to be decided at today’s hearing were agreed at a case management hearing on the 27th June 2019 and are as follows: “The Issues 5 The Claimant’s Claim is made up of a claim for unlawful deduction of wages pursuant Section 13 of the Employment Rights Act 1996 (ERA) as well as constructive unfair dismissal. The Claimant asserts that between the period to November 2018 and the date of her resignation on 6 February 2019 (four months) the Respondent made unlawful deductions from her wages in the total of £2,507 which was not agreed by her and which has led to her resignation on 6 February 2019 in writing.[6]The Tribunal is to determine whether the Claimant suffered such unlawful deduction of wages in breach of contract and to determine the amount. In addition, if the Tribunal agrees with the Claimants submission that the wages were unlawfully deducted without consent whether this amounted to a fundamental breach of contract entitling the Claimant to resign and to determine whether the Claimant resigned as a consequence of such breach.[7]The Respondent for its part asserts that there were no unlawful deduction of wages and no breach of contract as the Claimant was paid the correct entitlement into her contractual wages.” 6. At today’s hearing helpful clarification was given as to the deductions claim. This is a claim for £100 a week from the week of 15th October 2018 until the week of 4th February 2019. The claim is about basic pay only and not about commission. 7. The respondent agrees that an element of the claimant’s pay was reduced but only from November 2018 until the claimant’s resignation. It was not at the rate of £100 for each week because the claimant was off sick on a number of days on each month which reduced her pay because no sick pay is given. Findings of Fact Contractual termsFindings of Fact
[8]The claimant was originally employed by this respondent under the terms of a contract signed in 2013. While the contract did not specify the rate of pay, under the heading “period of payment” it stated that the employee would receive an attendance allowance and commission based upon the rate at that time. This was in addition to the national minimum wage.[9]On 16th September 2014 the claimant was issued a new contract having rejoined the respondent following her resignation.[10]While the claimant disputes this, I find that the claimant resigned in April 2014 as I accept that the emails at pages 3 and 4 are to and from the claimant. It is unclear when the claimant re-joined the respondent, Mrs Leigh considered it was probably after a maximum of 10 days. The claimant, while she did not accept, she had resigned, was adamant that her continuity of employment was not broken. This was not challenged by the respondent. On the respondent’s own evidence, the date the claimant’s employment commenced is incorrect on the contract and I therefore prefer the claimant’s evidence on this point that she has unbroken continuity from 2013.[11]The 2014 contract also did not specify how much the pay was, but it again referred to an attendance allowance and commission in addition to the national minimum wage.[12]In August 2014 the respondent’s structure changed and Mr E Davis took over its management from his father. The company trading name changed and it moved to new premises. Once things had settled down, the respondent wanted to change pay arrangements and increase the basic pay and to change the timing of commission payments.[13]A meeting was held with all staff which included the claimant, on 3rd March 2015. The notes of this meeting were at page 7 of the bundle and record that: “… The basic weekly pay was increased for all staff to meet national minimum wage on a weekly basis. A performance -related pay was introduced to recognise staff who consistently exceed 12 minimum deals a month that would be given in addition to the basic pay that all telesales were given. This was set out on a sliding scale dependent on the number of deals consistently attained was subject to adjustment both ways dependent on the number of deals. Attendance; timekeeping and the consistency of attaining a level of deals would all contribute to the adjustment of the performance pay”[14]No additional details were given as to the method of calculation or the ratio attributed to attendance versus deal numbers. While the meeting note refers to 12 being the minimum deals and it is said that PRP will be removed entirely if that figure is not met, there is no information on what the rates are. Mrs Leslie is noted as explaining at while exceptional circumstances would be considered, if the level of deals fell the PRP would be adjusted and removed entirely if the attainment for a month was 12 or below. Usually the adjustment would be made at an appraisal.[15]The claimant signed another contract with the same respondent on 2 April 2015 which appears to have been intended to introduce the performance-related pay concept and the adjustment. Under the heading “period of payment” the contract now states, “a performance -related pay and a commission based upon the rate at that time”.[16]I find this to be the contract that was in operation at the time of the deductions. It contains a positive statement that an employee will receive performance -related pay and makes no reference to the PRP amount being variable both up and down, or how that would be calculated, what elements it contained, their measurement and any relevant time period.[17]The contract referred to other documents for absence and disciplinary issues, but no reference is made to any PRP scheme rules.[18]I find there is an express contractual term that PRP will be paid, there is no express term that allows the amount once paid to be reduced. There is no express incorporation of any policy or rules document.[19]There is no other documentary evidence as to what the terms of performance - related pay were. The respondent relied on references in correspondence, course of dealing and what it said amounted to agreement by accepting reduced pay as evidence of an implied term that it had the right to reduce PRP. Performance related pay in practice[20]Mr Davis and Mrs Leslie were clear that they operated a system of adjusting what they said was the PRP element of pay up and down. There were monthly appraisal meetings with all members of the sales staff. The number of deals would be discussed at these meetings.[21]It was Mr Davis’s evidence, supported by Mrs Leslie, that every quarter, if the deal target of an average of 12 deals a month had not been met, and taking into account attendance and behaviour, (what was referred to by Mr Davis as the stats and the facts), then for the following quarter the PRP element of pay would be reduced. Basic pay always remained the same at the national minimum wage level but the PRP element could be reduced from £100 to £0. If performance improved, then the following quarter PRP would be reinstated.[22]In evidence I was told by Ms Dionne Atkins Lindo that her understanding of her pay was that it reflected timekeeping, attendance and over time, but also an element of performance This was entirely separate from commission. When her pay was reduced from £350 a week to £250, she was told by Mr Davis that it was because she was not hitting the numbers he expected. She understood from conversation around the office that the minimum target was an average of 12 deals a month. She was clear, and I accept her evidence that this had not been explained to her during the interview process and it was not a term that she was aware of prior to starting her employment or before the deductions were made.[23]Mr Cashman, a current employee of respondent, who is also a telesales consultant like the claimant, gave evidence and confirmed that he was aware that his pay had three elements. A monthly basic, performance pay and commission. He was clear that performance pay is looked at every three months but is discussed at a monthly appraisal meeting and it is adjusted up and down according to the number of deals made as well as good attendance, timekeeping, lead generation and the consistency of hitting numbers.[24]I find that Mr Cashman was aware of the system because he had been at the meeting in March 2015 and from it being put into practice for him as he had variable pay on a number of occasions, rather than from any documentation.[25]I also find that the company did not use consistent terminology when discussing this system with staff. Mr Davis explained that the term PRP was not used consistently within the company and would not generally be used when talking to sales staff. Instead the term bonus would be used. That has changed since the claimant left and PRP is now used with sales staff as well.[26]I find, that while an upward and downward adjustment system was operated by the respondent, this system was only explained in appraisal meetings when the need arose. It was not clearly documented or explained to the staff in a consistent way and I find that if an employee had not had deal flow below 12 on average, then they would not be aware of the deduction policy the respondent operated. Lay out of pay information[27]The bundle contained details of all the sums paid to the claimant other than commission for the period of her employment. These are at pages 11 to 16. They have a heading “basic pay”. No reference is made to PRP.[28]Mr Davis explained that payslips also showed one sum, and this was not broken down into basic pay and performance related pay because that was how their internal bookkeeper showed it. This did not change on payslips until after the claimant raised her dispute via ACAS.[29]In a letter of 27 November 2018 all staff, including the claimant, are told that because of the 2018 budget announcements on national living wage/ national minimum wage, the layout of the wage’s notification would change.[30]This letter then refers to basic pay of £250 and says that wage slips will be laid out showing basic pay and performance related pay. The letter says actual pay will remain the same.[31]Mr Davis gave evidence on the question of whether the bookkeeper also changed practice from 27 November. In answer to questions he said that it had not changed, but in submissions he stated that he had misunderstood the question and it was clear that the recording of payments had changed on the document at page 15 and that the column headed overrides, which had previously been only about commission, now showed the performance element of pay. He said that this was the case from entry 35164, payments made for the week beginning 26 November onwards. Having considered the data on page 15 I accept his position on this point.[32]Mr Davis also gave evidence that the monthly appraisal meeting notes for staff were amended from November 2018 onwards to reference PRP, but this had not happened before.[33]I find that was therefore no indication on any documentation given to staff which would show them that their basic pay contained two elements or indeed how that had been calculated. Variations in pay[34]The documents at pages 11 to 16 show a complete history of the claimant’s pay from 2014 to 2018. It started at £150 a month in August 2014 and then rose to £350 a month from September 2014 until February 2017 where it appears to be £400 a week.[35]In April 2018 the claimant’s pay is reduced. Mr Davis gave evidence that in January 2018 due to a three-month reduction in attainment the respondent attempted to implement the terms of the employment contract by adjusting what he described in his witness statement as the bonus in place for performance. However, having had an appraisal meeting to discuss this, the claimant then stated she did not understand why the reductions were going to happen. As a result of this Mr Davis decided not to implement the reductions at that point. Instead, he decided to go down a three-month disciplinary route in order to make sure that the claimant understood the terms of her employment.[36]The bundle then contained three letters which show that warnings are given. Mrs Leslie wrote to the claimant on 8 January 2018 as a follow-up to a meeting that had been held with the three of them. This letter states that the claimant had been given a verbal warning because of the level of deals being achieved on a monthly basis. This letter gives formal notice of the need to meet the target of deals to maintain what described as a higher basic salary.[37]The bundle contains a letter of 6th February warning the claimant her pay may be adjusted downwards. The letter refers to the claimant having been given a verbal warning and that this letter 6 February is a first written warning. The letter refers to basic salary throughout, stating that “it was discussed again how your basic salary was reflective of the levels of deals that you previously consistently produced on a monthly basis”. The letter states that the claimant has been reminded “your basic salary was reflective of the level of deals you consistently produced”. There is no reference to performance -related pay as a separate item. The letter goes on to say that it is a formal notice of the need to meet targets to maintain higher basic salary and a second warning in a process. If the expectation is not met the letter says action will be taken to address the issue.[38]On 6 March there is then a further meeting which says ”you have been officially made aware of the need to meet the target of deals to maintain this higher basic salary on two previous occasions and this is the final warning in the event that this expectation is not met will have to take action to address the issue”[39]I find that the respondent’s actions accept that as at February 2018 the claimant did not understand her contract permitted reductions to pay. I find the respondent’s actions confirm that this was the first occasion the system as it could impact her had been explained to the claimant 40. in April 2018 following this disciplinary process Mr Davis then told the claimant that because of continued underperformance her basic pay would be adjusted downwards. The details of this are set out in a note of a meeting on 16th April 2018.This stated that the claimant did not object and in fact agreed to her wages being altered. Mrs Leslie relies on the claimant asking for the deduction be staggered as support for her view the claimant understood the position and had agreed the deduction. It was also pointed out the claimant had not raised any grievance at this point.[41]Mr Davis also explained that the claimant reacted positively in May and June 2018 to the conversation and, to show a level of fairness, the respondent increased her pay based on outstanding performance in July 2018 This increase took place one month earlier than the general three-month appraisal and what Mr Davis describes as the bonus is increased at a rate to compensate for the reduction made two months previously as the level of attainment had been outstanding. By July 2018 therefore any reduction the claimant had suffered in April had been compensated for. I find that neither asking for loss of pay to be smoothed out, nor failing to raise a grievance in April 2018 amount to consent by the claimant, particularly when the pay cut was shortlived and made back up to her within months.[42]In July 2018 what is described as basic pay becomes £425 a week until the payment date of 30 October 2018, which is when the deductions the claimant complains of occur.[43]On 7 November 2018 the claimant met with Mr Davis and the bundle contained a letter which referred to discussions over the last few months regarding the claimant’s poor performance and how it would affect her pay unless there was a dramatic improvement. This letter stated that the claimant had been reminded that higher salary was directly linked to performance and that it had been made clear to her that an average deal ratio over the last three months of 13 deals would only attract a weekly wage of £300 per week. The letter stated this was something that had been discussed many times and which i had to be applied on occasion. The letter records that the respondent has decided not to adjust the amount to the actual wage to directly reflect a deal ratio but to stagger the amount to give an interim opportunity to improve the figures and the letter also states the claimant had agreed to this.[44]The claimant states that she did not agree any such deductions. Mr Davis had a company witness present at the meetings, Mrs Leigh Munden who had taken over the role of human resources from April 2018. Mrs Munden confirmed that the claimant had not agreed to any of these reductions in the meetings at which she was present.[45]I accept the evidence of the claimant supported by Mrs Munden that the claimant had not agreed to the reduction in her wages that took place following this meeting. It was this that led to her raising a complaint to ACAS and issuing employment tribunal proceedings.[46]The claimant resigned in February 2019. It was the respondent’s submission that the claimant had engineered the situation to create the circumstances allowing her to resign. She had done this because she had set up a competing business and taken commercial premises and was looking to obtain money to fund her new enterprise.[47]The claimant accepted that she had incorporated a company which was in the same business as the respondent and had found a serviced office. She was unable to pursue this venture, however, due to a combination of family bereavement and personal ill-health. She has not worked since she left the respondent’s employment.[48]The claimant told me that she loved her job and Mrs Leslie confirmed the same, that the claimant had always said that she loved what she did.[49]I find that the claimant’s resignation was entirely motivated by the reduction in her pay and was not for any ulterior motive. I also find her resignation was timely and that she did not delay in reacting to this reduction. What were the deductions?[50]The figures shown at page 15 of the bundle were not disputed. These show that the claimant was paid less than £425 in the week of 15 October and again, in the week of 22 October. Mr Davis’ evidence was that they were continuing to pay the claimant £425 a week at this point and the reduction in pay for these weeks is because of her sickness absence.[51]The appraisal document for October noted that there were no sick days. The respondent, however, produced its internal sickness log for October which shows that the claimant had indeed been sick for one day and the week of 15 October and two in the week of 22 October. I accept this evidence and agree with the respondent’s position that reduced pay for these weeks was not due to any deduction but because of absence.[52]It was the respondent’s position that it reduced the claimant’s pay from the week of 5 November to £350. The payment date on page 15 shows a number of weeks when the claimant was paid less than this.[53]I find that the claimant was sick for three days in the week of the 5th to 9 November, one day in the week of the 12th -16 November, one day in the week of 10th to the 14th, December one day in the week of the 17th- 21 December, and one day in the week of the 21st -25 January. I find that her pay of £350 a week was reduced in these weeks by the amount of her sickness absence.Relevant law
[54]The statutory prohibitions on deductions from wages are contained in Part II of the Employment Rights Act 1996 (ERA). The general prohibition on deductions is set out in s.13 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.(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.(5) For the purposes of this section a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.[55]Any deduction must therefore be authorised but there can only be a deduction if the amount was properly payable, the question of what wages are ‘properly payable’ to the worker under S.13(3) is critical to determining whether an unlawful deduction has been made. Deciding whether the employee has a legal entitlement to the payment in question will involve analysing the factual basis of his or her claim.[56]The Court of Appeal in Agarwal v Cardiff University and anor 2018 EWCA Civ 2084, CA, is binding authority that an Employment Tribunal has jurisdiction to resolve any issue necessary to determine whether a sum claimed under S.13 ERA is properly payable, including an issue as to the meaning of the contract of employment.[57]Contract terms may be implied as well as express. Where the express terms of the contract fail to deal with an issue, the court will consider whether a term is implied “in fact” in order to reflect the parties’ intentions.[58]In order to make such a presumption, the court must be satisfied that one of the following tests is met• the term is necessary in order to give the contract business efficacy, that is it must be necessary for the contract as a whole;• an “officious bystander” would understand that the term is so obvious it goes without saying at the time the contract was entered into, not at the time the dispute arose;• an intention to include the term is demonstrated by the way in which the contract has been performed. Constructive unfair dismissal[59]Section 95(1)(c) of ERA 1996 states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct.[60]In order to claim constructive dismissal, the employee must establish that:• there was a fundamental breach of contract on the part of the employer• the employer’s breach caused the employee to resign• the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.Conclusion
[61]In applying the relevant law to my findings of fact I have first considered whether the money, which all agree was taken from the claimant’s overall pay packet, was properly payable. If there was no legal entitlement to this money, then no deduction arises for the purposes of section 13 of ERA 1996.[62]I have started by looking at the terms of the contract and I have found that the express terms of the contract did not permit a reduction to basic pay on performance grounds. While there is a reference to performance related pay, this a positive statement that it will be paid.[63]I have then gone on to consider whether, despite its express terms, because the contractual reference is so limited, the contract can be said to have included an implied term that the performance related pay could be reduced or removed.[64]I conclude that this term does not have to be implied in order for the contract to work overall.[65]I have found that the way the scheme worked was very far from clear to anybody and it was not clearly articulated by the respondent. For example, its documentation presented to sales staff prior to the dispute arising was silent on PRP and this was not the language used. I have found that the respondent accepted the claimant did not understand this to be part of her contract prior to February 2018. I conclude that no officious bystander would have been able to deduce the operation of the scheme as an obvious implied term at the start of the contract with the claimant.[66]The respondent has relied heavily on the way the contract has been performed to demonstrate that in its view a term should be implied. I have found that the claimant did not understand that her pay was to be adjusted downwards prior to February 2018, which the respondent recognised as it felt it needed to make position clear in a disciplinary process in 2018.[67]The fact that after February 2018 they made it clear they were going to make deductions from the claimant’s pay, to which she strenuously objected, cannot imply a contractual term based on performance of the contract in practice.[68]Accordingly, I have found that the monies were properly payable to the claimant and that, as the respondent accepts, there was no written agreement to any deductions. Deductions made for “underperformance” are therefore in breach of section 13 and I make a declaration to that effect.[69]I award the claimant £1035 for these unlawful deductions. This is calculated by looking at the amount she was paid for each week from the date about which she complains, the week of 15 October, comparing this sum to £425, which is the amount she should have been paid, and reducing that to factor in unpaid sick leave in any week.[70]The differences are as follows. Week 5th November £30, week of 12th November £60, week of 19th of November £75, week of 26th of November £75, week of 3rd December £75, week of 10th December £60, week of 17th December £60, the weeks of the 24th and 31st of December £150, week of 7th January £75, week of 14th of January £75, week of 21st January £60, week of 28th January £75 and week of 4th February £165.[71]I’ve also found that the claimant resigned in direct response to this breach of her contract and unlawful deductions and that she was therefore constructively dismissed.[1]The Respondents had sent two very detailed applications, together with supporting documentation. All of these were put before me. The first document was headed “Comments on the Anomalies in the Judgment Written Report/Reasons”. The second was headed “Reasons for Appeal”.[2]While the headings would suggest that the latter document was created in support of an application to the Employment Appeal Tribunal, this is not expressly stated, and I have therefore also considered the matters set out in that document.[3]The application was received outside the applicable time limit, but I accepted the Respondent’s explanation that they had received the judgment only on 8th February and extended the time limit. The Claimant did not object.[4]The Claimant was asked to comment on the Respondent’s application but has not done so. Accordingly, to avoid further delay I have made my decision in the absence of any comments from the Claimant. Grounds for reconsideration. Comments on the Anomalies in the Judgment Written Report/Reasons[5]The comment on anomalies document made three main points. Firstly, there were detailed comments on what it said were either errors by me, contradictions, or recording different versions of what was said. Secondly, I did not adhere to my schedule of finding the unlawful deduction of wages before considering the constructive dismissal so that the Respondent was not given any opportunity to explore that matter further. This decision is therefore challenged as neither fair nor legal. Thirdly, the Respondents consider they were hijacked into not producing additional witnesses or requesting postponements and this was due to judicial discouragement and impressions given. Reasons for appeal[6]There is a degree of overlap in the grounds in this document and the anomalies reasons. In summary it states that the case has been conducted unfairly because the conduct of two judges misguided them and influenced decisions the Respondent took which had a detrimental effect on the outcome of the final hearing. They were intimidated by judicial conduct.[7]Specifically, the outcome is disputed because my ill-health on the day meant that the proceedings were halted, and this interrupted the Respondent’s train of thought which was difficult for a layperson. The Respondent was hijacked by the Claimant’s conduct and encouraged not to apply for postponement which was an error. Again, I did not do what I had said, that is deal with the unlawful deduction of wages first and then address the constructive dismissal. The Respondent had little opportunity to address the constructive dismissal element, including it says being discouraged bringing witnesses. It also said that I overlooked a point on continuity of service which proved the Respondent’s case. Response to the anomalies document. Errors[8]My responses to the anomalies are based on either the paragraphs of my judgment or the notes I took during the hearing. The numbers refer to paragraphs in the judgment disputed by the Respondent: - 7. This information was given by the Claimant and described the issue as she saw it. It is appropriate for the Claimant to specify what she says she is claiming. 8. I made a finding of fact that the Claimant was employed by the Respondent under the terms of the 2013 contract. My notes record that the Claimant was asked a question which suggested that it was the Respondent’s case this was not a valid contract, but this was not evidence given by any of the Respondent’s witnesses whose statements do not refer to this contract. 10.I agree that I made an error in paragraph 10 in attributing evidence to Mrs. Leigh which was in fact given by Ms. Leslie. I apologise for that error, but the Respondent did not dispute that this evidence was given. In the comments of the anomalies this is again repeated when it specifies that the claimant had returned 10 days after her resignation. It was common ground that the claimant had resigned. The issue was whether not that resignation had broken her continuity of employment. The claimant was adamant that it had not. The Respondent focused on the fact of the resignation and did not challenge the fact that the gap in the claimant’s employment did not break continuity. My reasons for preferring the Claimant’s account are set out in this paragraph 10. The point is made in this paragraph that during an adjournment the Claimant provided pay slips which the Respondent now says in its comments ratifies the Respondent’s case that there was a break in service. The pay slips are in the bundle before me marked B. It is said my notes do not reflect true events. I have noted the adjournment and the questions on the pay slips that were put the Claimant following the break. The Claimant did not accept that these documents showed that she left between14th April and 6th May. All one can say with certainty is that there were no pay slips available in court on the day for this period. I have preferred the claimant’s account for the reason given in paragraph 10.[12]Mr. Davis statement does refer to the fact that changes were made to wages prior to the move to new premises. He states that this was a change to being paid in arrears and increase in weekly basic salary to meet national minimum wage requirements. Reference is made to the potential of additional earnings, but no evidence was given that this included deductions at this point. The meeting with staff is recorded at paragraph 13. It predates the issue of the contract to the claimant.[16]This is a finding of fact on contract wording. The Respondent’s point in this paragraph is a re-rehearsal of its evidence.[18]This is again a finding of fact on a contract. There is no express incorporation of any policy or rules document.[24]Mr. Cashman accepted he was aware of the system. The Claimant said that she was not. The reasons for preferring the claimant’s account are set out in the judgment.[25]The point the Respondent makes here is adding to its evidence. It does not provide any reason for reconsideration.[26]There are two points in this paragraph. It is said this paragraph contradicts paragraph 24. The fact Mr. Cashman was aware of the system because he had deal flow below 12 on average does not detract from the finding that an employee who had not been in this position would not be aware, or the finding this was not explained in a consistent way or clearly documented. The Respondent also refers in this application to the fact the Claimant was put through a disciplinary process which I have found was to acquaint her with the scheme and was therefore an acknowledgement by the Respondent that she was not aware. The second point is that both I and a previous judge discouraged bringing additional witnesses. My notes record the fact that once the Claimant produced an additional witness, I agreed with the Respondent they would have the overnight adjournment to consider if they needed to bring more documents and more evidence. On the second day no application was made to bring additional witnesses for the Respondent. It is not for the judge to give parties legal advice on how to present their claim.[31]I do not accept the Respondent’s position here. My notes are clear about the evidence given in answer to questions. They record that when asked about the document at page 15 the witness said “did not change the internal document in line with the new pay slip layout. It was an evolutionary process as we entered the dispute.” He expanded on this and said, “the bookkeeper did not change the layout because it’s always been like this”. When it appeared that the Respondent’s witness had not given the answer he wished to give, I allowed a degree of latitude because he was unrepresented and accepted his revised answer, even though that was given as part of submissions.[34]This is a summary of the Claimant’s pay history. It does not go through week by week. My notes state that the claimant said in evidence when asked about these variations that this was due to sickness absence. This was not challenged by the Respondent.[35]My finding that the witness said he took this action to make sure the claimant understood the terms of her employment is based on his written witness statement when this is what he says. 39.This is my finding of fact based on the evidence I heard.[40]The minutes of the meeting are referred to in this paragraph.[41]This paragraph records the fact that pay was increased based on outstanding performance.[48]I accept I have not made reference to the Claimant’s statement that she always had a difficult relationship with the Respondent but not sufficient to contradict her evidence, which was supported by Mrs Leslie, that she had always loved her job.[55]This is a statement of the law. It was the evidence of the Respondent’s witness that the Claimant had not agreed to any deduction at this meeting.[58]This is a statement of law. In terms of this paragraph the Respondent restates the evidence as it sees it. I have made different findings of fact. This is again a statement of the relevant law.[62]It is a finding of fact that the contract only states that PRP will be paid not that it will be reduced or deducted.[65]It is my findings of fact, based on the evidence I accepted for the reasons set out in the judgment, that the Respondent had accepted the claimant didn’t understand reductions were part of the contract prior to February 2018 9. While I accept that I made one error in attributing evidence to the wrong individual, this is not material. I do not consider that the other points the Respondent has made show any inaccuracy in noting evidence. I conclude that none of the matters addressed at paragraph 7 above are sufficient for there to be a reasonable prospect that the decision be overturned on this basis. Not adhering to the schedule 10. This is a complaint that the Respondent was not given an opportunity to dispute the constructive dismissal because I had said that it would be dealt with after the issue of the deduction of wages. This is not an accurate recollection; the Respondent is referring to the split between liability and remedy which I did specify. 11. The context of the discussion on a split hearing was in relation to documents produced by the claimant on the morning of the hearing which related to ill-health after the termination of employment. My recollection is that I explained to the parties we would deal with liability first and remedy second, if needed. On that basis the Respondent would have an opportunity to dispute whether the claimant was or was not working, should or should not have found another job and was or was not competing with the Respondent after, and if, a decision on liability against the Respondent had been made. This is not uncommon when it appears likely there is insufficient time to deal with both liability and remedy in the time allotted. 12. At the subsequent remedy hearing the Respondent will be given every opportunity to discuss the doctors letter and the impact of a competing business. 13. The Respondent also complains that in not considering the constructive dismissal it was denied an opportunity to make its case. The Respondent states that intended to say that the Claimant deliberately did not attain deals knowing her pay would be adjusted she could then claim ignorance of that scheme and achieve a constructive dismissal claim. The Claimant’s motive was something that the Respondent did address. This was in Mrs Leslie’s witness statement, and although my findings are brief, I deal with it at paragraph 49. 14. I conclude that I set up a comparatively standard way of dealing with the case, that is liability first and remedy to follow if needed. The Respondent was not prevented from making its case in relation to the constructive dismissal point. 15. I further conclude that there is no reasonable prospect of the original decision being varied or revoked on this ground. Hijacked and discouraged from bringing more witnesses 16. As to the discouragement from bringing more witnesses, I repeat as stated above my notes record the fact that once the Claimant produced an additional witness, I agreed with the Respondent they would have the overnight adjournment to consider if they needed to bring more documents and more evidence. On the second day no application was made to bring additional witnesses for the Respondent. It is not for the judge to give parties legal advice on how to present their claim. 17. On the morning of the hearing both parties complained about lack of timely exchange of witness statements and documents from the other. The Respondent was not prepared, and my notes record that we agreed a short adjournment to read the witness statements. This was expanded to 40 minutes at the Respondent’s request. My note records that I advised both parties before the reading break that they could apply for an adjournment after that reading break if they felt they needed to. The Respondent did not make any such application. 18. I conclude that there is no reasonable prospect of the original decision being varied or revoked on this ground. Response to the appeal document Intimidation by judicial conduct 19. A complaint is made about hearing in July 2019. This was not before me and I do not propose to deal with it. No complaints were raised at the time. 20. The concerns about the hearing in January 2020 are said to be about the claimant being given greater latitude to the detriment of the Respondent. This was when the Claimant was legally represented but the Respondent was not. There are three points made. The Claimant delivered her witness statement overnight before the hearing whereas she had had 14 days to consider the Respondent’s statements. The Claimant was allowed to produce medical documents. The Claimant was allowed a further witness. 21. As set out in the response to the previous document, the parties were given an opportunity to ask for an adjournment and did not do so. The Respondent now says they were intimidated by me and agreed only under protest. I have no note of any protest being made at the time. 22. The medical documents are relevant to remedy and will be dealt with at that point. The Respondent therefore did not suffer any prejudice from their late inclusion. 23. The Respondent was offered the opportunity to consider if it needed to produce more evidence after the Claimant’s new witness was permitted. It did not do so. I did advise them on the possible impact on the timing of a conclusion of the case if they sought to do so. That is a relevant consideration that needs to be brought to the parties’ attention when they make their decision. 24. There is a specific complaint made about a matter that was addressed on the day. It is a complaint by the Respondent that the witness was privy to conversations and documents. The complaint in this appeal document is that I after I asked the solicitor as to what had transpired. I did not take up Respondent’s further objection. 25. My notes show that a concern was raised to the clerk about a witness being seen in conference with the Claimant and her representative. At the start of the hearing I therefore explained to the parties that because new documents had been produced it was appropriate for the Claimant’s representative to ask the witness about these. The representative confirmed to me that any conversation had been limited to this. The Respondent still had a concern about the conversation and its length and that when they went into the room the witness was hiding a document. It was following this comment that I then asked the claimant’s representative if, as a trainee solicitor, she had limited her conversations appropriately and she confirmed that she had. 26. I do not accept that the Respondent was intimidated by judicial conduct. There is no reasonable prospect of the decision being overturned on these grounds. My ill-health 27. It is correct that during this hearing I was suffering from a bad cough and blocked left ear. I did not have a temperature and, having listened to recorded advice at my GP surgery as to the need to see a doctor with the symptoms I had and how to deal with them, I concluded I was sufficiently well to be able to attend court. 28. Two things are said to arise from this. Firstly, that I did not hear things correctly and this had led to factual errors. I have provided a very detailed response to what is said to be factual errors and do not find this to be the case. I did ask the parties to repeat things when I was unable to hear. I should add that the noise of the air conditioning provides a continual hum and almost every hearing parties are asked to repeat themselves. 29. Secondly, that my coughing interrupted the Respondent’s train of thought. No point was raised at the time. A number of adjournments were granted during the day, either at my volition or at the request of the parties. 30. There is no reasonable prospect of the decision being overturned on this ground. Hijacked by the claimant’s conduct and lack of postponement 31. This has been addressed above Constructive dismissal not addressed 32. This point has been made and answered above. This was a split hearing on liability and remedy. There is no reasonable prospect of the decision being overturned on this ground. Overlooking evidence which proves continuity was broken 33. I have dealt with this point above Conclusion 34. For the detailed reasons set out above I find there is no reasonable prospect of decision being overturned on any of the grounds raised by the Respondent in either of the documents. EMPLOYMENT TRIBUNALS Claimant: Miss J George Respondent: Clements Agency Limited Heard at: East London Hearing Centre (by Cloud Video Platform) On: 17 November 2021 Before: Employment Judge McLaren Representation Claimant: Ms I Semeniuk, Solicitor Respondent: Mrs S Leslie, Director REMEDIES JUDGMENT The claimant’s claim of unfair dismissal having succeeded the respondent is ordered to pay the claimant(i) a basic award of £3,187 (5 x1.5x £425); and(ii) a compensatory award in the gross sum of £8,165 comprising loss of earnings from 09.02.19- 31.7.19(iii) For recoupment purposes;(a) monetary award £8,165 (b) prescribed element £2492.05; (c) period of prescribed element 09.02.19-31.07.19. The excess of the monetary award over the prescribed element is £5,672.05. Background[1]The liability hearing was heard on 9 and 10 January 2020.The issues agreed as to be determined at that hearing were as follows: a) The Claimant’s Claim is made up of a claim for unlawful deduction of wages pursuant to Section 13 of the Employment Rights Act 1996 (ERA) as well as constructive unfair dismissal. The Claimant asserts that between the period to November 2018 and the date of her resignation on 6 February 2019 (four months) the Respondent made unlawful deductions from her wages in the total of £2,507 which was not agreed by her, and which has led to her resignation on 6 February 2019 in writing. b) The Tribunal is to determine whether the Claimant suffered such unlawful deduction of wages in breach of contract and to determine the amount. In addition, if the Tribunal agrees with the Claimant’s submission that the wages were unlawfully deducted without consent whether this amounted to a fundamental breach of contract entitling the Claimant to resign and to determine whether the Claimant resigned as a consequence of such breach.[2]Having heard the evidence, I found that the complaint that the employer had made a deduction from wages in contravention of section 13 was well-founded and I made a declaration to that effect. I ordered the respondent to pay the claimant £1035, being the amount of the deductions made in contravention of section 13 ERA 1996.I also found that the claim for constructive dismissal succeeded.[3]Today’s hearing was a reconvened remedies hearing to determine the basic and compensatory award due to the claimant. The previous remedy hearing had been adjourned because the respondent’s representative was unwell and because, more importantly, the claimant had served the bundle late, allowing no time for the respondent to consider the same.[4]I was provided with a bundle of 80 pages and heard evidence from the claimant. In reaching my decision I took this into account, together with the helpful submissions by the parties. Finding of facts[5]I had previously found that the claimant was employed from 30 April 2013 until she resigned on 6th February 2019.It was agreed that this was 5 years of continuous service. It was also agreed that her gross weekly basic pay was £425 a week, giving a net weekly basic pay of £357. Her role was in the marketing team approaching the owners of commercial properties to create leads to whom the respondent could sell its services disputing the calculation of commercial rateable values as set by HMRC. Mitigation activity[6]The claimant’s evidence on her attempts to mitigate was confused and contradictory. In a mitigation statement she stated that in the three weeks after her resignation she made a number of unsuccessful attempts to get new employment. In oral evidence she said that she did not make any attempts to find other jobs for a number of weeks. She later said that she had done some window shopping for jobs and looked on the Internet and in newsagents’ windows. In cross-examination she described herself as in a complete panic and willing to do anything. Nonetheless, there was no evidence, for example, of sites that she had looked at or visited. There was no evidence of any applications being made which I would have expected if the claimant was as panic stricken and concerned as she has now said.[7]It being accepted that the claimant was excellent at her job, she was asked why she had not contacted any of the respondent’s competitors to find employment with them, either immediately after losing her job at any time thereafter. The claimant initially said she did not know who the competitors were, but then changed her answer to say that all the competitors were family owned businesses. She made a conscious decision not to work for a family business because she felt that made her vulnerable and put her back in a similar situation to that with the respondent which is a family owned business. She agreed, therefore, that she limited the scope of any attempt at mitigation by her decision to avoid family run businesses.[8]While the claimant stated that all companies that worked with rateable value claims were family owned, there was no evidence given of this, and it is not mentioned in her witness statement. On the balance of probabilities I find it unlikely that the claimant’s contention is true. While there may be a preponderance of family owned businesses in a particular business area, on the balance of probabilities I find that at least a significant minority will not be set up in this way. There is for no reason why the claimant could not have approached these companies.[9]In her mitigation statement the claimant said that it was following these numerous unsuccessful attempts that she decided to open her own business in order to maintain her daily needs. On the balance of probabilities, I find that the claimant did not make any serious attempts to find other work in the three weeks after she left the respondent’s business. There is simply no evidence of her doing so and I consider it more likely than not that she had made an active decision not to work for another employer in the same business area, but to set up her own company. Taking this step is an entirely reasonable way of seeking to mitigate loss and I find that the claimant acted reasonably in making this decision-.[10]While the claimant described the process of setting up a company as being a relatively simple one, I find that the decision to do so and the administration required were where she spent her attention in the first three weeks. I find that the claimant used this time to incorporate a company, locate a serviced office and plan contacting potential customers. She had set up the company by 7 March.[11]The claimant’s written mitigation statement said that she had not developed the business at all and initially in answer to cross examination questions said that she had done nothing with the company. When she was asked further about this, the claimant gave contradictory answers about what she had done in relation to this company. She agreed that she had contacted an agent who had set up a company for her and she had registered this company at companies house. She had done some marketing of this company in that she made telephone calls in order to obtain clients. She was unclear and could not recall how many people she may have contacted. She initially said that these telephone calls had resulted in successfully winning the business of two or three clients but then changed her answer to one client only. She accepted that in relation to this one client she had taken their instructions, filled in an appropriate form on the government Gateway site and submitted a request for review of rateable value of the property. That request had not resulted in any change to rateable value and she had charged a and been paid £240 for this work.[12]It was agreed that the company was dissolved on 12 November 2019 and no income was declared from this company. The claimant stated that she did not make any money from this venture. She now accepts that she did make a small amount referred to above.[13]At the liability hearing I found that she was unable to pursue this venture due to a combination of family bereavement and personal ill-health. The claimant explained to me that in May 2019 she lost her father to whom she was very close. While his death was sudden and it was a shock, she told me today that it had no impact on her mental health and that she simply went through the normal grieving process but this did not cause or contribute to her depression at all.[14]In her mitigation statement provided for the remedy hearing, the claimant said that the sole reason that she was unable to run the business was her depression caused by the job loss, and that she could not run it alongside her ongoing depression therapy. It was agreed, however, that the business was effectively wound up in August and the depression therapy did not start until October. I find that the reason given in the written witness statement cannot therefore be the reason the claimant could not pursue the business. The chronology is incorrect. In relation to her father’s death, the claimant’s statement today that it did not impact her ability to run the business is contrary to the evidence that I previously considered and to my earlier finding, and I conclude again that the family bereavement had an impact on her. As I have not accepted the claimant’s reason that led her to being unable to pursue the business I find that it was due to the bereavement and not because of treatment for depression.[15]The bundle contained an email exchange indicating an attempt to find a job dated 18 June 2019. The claimant explained that she had reached out to this company via a friend of hers with whom she had worked at the respondent’s business and they had recommended her. The email is at page 55 of the bundle and states that at that time the company cannot accommodate the claimant’s salary expectations and that if she were to explore options in London, £25,000 might be achievable. The claimant could not recall what salary she had asked for. She also stated that she earned more than £25,000 at the respondent when one took into account commission on sales generated. She could not recall if this was a sales company. She accepted that in any sales environment it will take some time to build up a pipeline of commission/bonus on sales. I find that in June 2019 the claimant was seeking a role at a salary that was higher than her basic salary with the respondent. I find that the reason she did not succeed in obtaining a role with this company was because of her salary. Not moderating her salary expectations is contradictory to the claimant’s oral evidence that she was desperate to work and would undertake any job. That is not borne out by the documentary evidence.[16]I find that in June 2019 the claimant was capable of reaching out to a potential employer, discussing her past experience with that employer and impressing them sufficiently for them to suggest that they could explore options with her in the future. This does not indicate an individual whose depression is as the claimant describes it, that is so bad that she is unable to get out of bed.[17]The only other evidence in the bundle of mitigation is 21 January 2020 when the claimant appears to be looking for a pub cleaning job in Ilford. Depression[18]At the liability hearing I found that the respondent made a series of unlawful deductions and, as she had set out in the claim form, the claimant resigned in direct response to this breach of her contract and unlawful deductions. In her mitigation statement the claimant stated that her resignation was partly due to a hostile working environment and that she suffered from work related depression and anxiety. The claimant was, however, clear in her oral evidence that she had not suffered from depression while at work. She had enjoyed her work and it was agreed by the respondent that she excelled at her tasks. She had not, accordingly, ever made the respondent aware that she suffered from depression or was likely to suffer depression, as this was not the case before she felt forced to resign.[19]The claimant was asked on a number of occasions what it was therefore that triggered the depression for which she subsequently suffered. She explained that it was triggered by losing her way of living. Having left her job she had no income on which to live. She was clearly a very driven individual who is accustomed to and enjoyed working and she explained that she found the inability to put food on the table, keep a roof over her head and to keep her car on the road caused her depression. She indicated that she had a visit from the bailiffs shortly after she lost her job and that she had significant money difficulties.[20]She stated in her mitigation statement that her health had deteriorated in spring of 2019, and she has been prescribed medication and counselling. There was some medical evidence in the bundle but this is not in the spring of 2019 but in October of that year. At page 42 of the bundle there is a letter dated 29.10.2019 from the GP which states that the claimant has been suffering from anxiety and depression since February 2019. It says, “she stated problems at work”. There are no copies of the medical records to show when she went to the GP or was first prescribed medication. From the claimant’s oral evidence, she confirmed that October was the first time she visited her GP and described her symptoms, at which point she was told she was suffering from depression and prescribed medication. I accept that while the GP has recorded problems at work this is based on what the claimant has told the GP who is merely reporting the claimant’s words at that time. I also find that the GP, in dating the depression from February 2019, is reflecting what the claimant told him/her and this is not a clinical diagnosis of depression from that date.[21]Page 43 was an undated letter stating the claimant had been placed on a waiting list for CBT. There are then 3 appointment letters, and treatment starts on 7.10.2019. In a letter of 27.1.2020 the GP practice confirms that the therapy, which was to improve her mood, ended on 27.01.2020 and she is “moved to recovery”.[22]The claimant began receiving universal credit at some point prior to 27 February 2019. In February 2020, having undertaken a work ability assessment, despite the fact her GP had reached a more positive position, it was determined that she had a limited capability for work. The claimant confirmed that she continues to be assessed in the same way, that is she has limited capability for work and still continues to receive universal credit.[23]The claimant explained that she made no attempt to find other work after June 2019 because of her depression. In April 2020 she began two courses, both were for one day a week and lasted for six months. During this time she was not looking for work at all. These courses would have finished by the end of September 2020. The claimant explained that from September 2022 to September 2021 she made no attempts to look for work at all which was due to lockdown. In September 2021 she has started a one-year course which she believes will assist in finding other work.[24]The claimant explained that she has a varied work experience having in the past worked in retail as a manager in Harrods, driven and ambulance and been a fitness instructor. She wishes to continue a career in retail.[25]While I accept that the claimant is currently suffering from depression, I find that this depression did not start until after 18 June 2019. Prior to that date the claimant had set up her own business, attracted at least one client for whom she had done work and had actively sought another role. The GP in identifying an earlier start date for the depression was doing so on the basis of the claimant’s statements to them and the GP did not have the benefit of the evidence before me. As I find the depression did not start immediately on losing the job I also find that it is more likely that it was caused by the loss of her father and not by her financial circumstances. If the financial circumstances had indeed weighed on her mind in the way she now describes them, I find that she could have mitigated her loss to some extent. While I am sure that her finances now contribute to her state of mind and low mood, I find that this was not the cause of her depression. Universal credit[26]It was agreed that the claimant had received universal credit for the period March 2019 to date. There is evidence in the bundle of the amounts paid between March and December 2019. We agreed the monthly figures that the claimant received, in March it was £592.21, April £657.21, May £656.21, June £269.21 and July £317.21. This is a total of £2,492.05.[27]The claimant also received separate rental payments of £386.28 which were paid directly to the landlord from June 2019 onwards. Relevant Law-remedy[28]The claim is for unfair dismissal. s123 of the ERA 1996 provides that the compensatory award shall be: ‘...such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer’.[29]The object of the compensatory award is to compensate the employee for their financial losses as if they had not been unfairly dismissed - it is not designed to punish the employer for their wrongdoing.[30]The calculation of the compensatory award falls under two headings, Immediate loss of earnings, and future loss. Immediate loss of earnings is the loss suffered between the effective date of termination to the date of the remedies hearing.[31]For dismissals occurring on or after 6 April 2018 and before April 2019 the statutory cap is calculated as the lower of £83,682- or 52-weeks’ gross pay. As at February 2019 a week’s pay was capped at £508. Burden of proof on mitigation[32]The employer’s liability will normally cease before the date of the remedies hearing if the employee has (or ought to have) got a new permanent job paying at least as much as the old job as there will no longer be a loss arising from the dismissal. Future loss will be awarded if the claimant has not got a new role despite sufficient efforts to find one by the date of the hearing. The tribunal will then award some period of future loss to cover the period until it is thought reasonable that the claimant would be a new employment.[33]The claimant is under a duty to mitigate her losses, but when calculating the compensatory award, the calculation should initially be based on the assumption that the employee has taken all reasonable steps to reduce his or her loss. The burden of proof regarding a failure to mitigate is on the wrongdoer. A claimant does not have to prove that he or she has mitigated the loss and tribunals are under no duty to consider the question of mitigation unless the employer raises it explicitly and adduces some evidence of a failure to mitigate.[34]If evidence as to non-mitigation is not put before the tribunal by the employer, it has no obligation to look for such evidence or to draw inferences. It is not enough for the employer to show that there were other reasonable steps that the employee could have taken but did not take. It must show that the employee acted unreasonably in not taking such steps.[35]It is not the case that the tribunal should simply accept the subjective view of the claimant, the tribunal’s task is to consider all the circumstances in deciding whether the claimant has acted unreasonably in failing to find fresh employment or some alternative means of mitigating the losses as a result of having been unfairly dismissed. Impact of manner of dismissal/ill health[36]Employers may be liable for prolonged loss of earnings where, due to the claimant’s state of health, securing alternative employment may be problematic. This is similar to the approach taken in personal injury cases, where the defendant bears liability despite an injured person’s pre-existing condition or predisposition to injury. Where the claimant remains out of work at the time of the remedies hearing, his or her state of health and prognosis will be relevant to the tribunal’s assessment of the period over which future loss should be assessed.Conclusion
Conclusion
[37]I have found that the claimant did not suffer from depression initially after leaving her job. I also found that she made entirely reasonable attempts to mitigate her loss by taking the sensible step of setting up her own business and seeking to pursue that.[38]Unfortunately, this venture ultimately did not succeed and I have found that this was because the claimant began to suffer from depression which, on the balance of probabilities, I have found was not caused by the financial circumstances of the job loss, but by a family bereavement.[39]Applying the findings of fact to the relevant law I therefore conclude that the respondent is liable for the claimant’s ongoing loss from the date of resignation until her depression made it impossible for the claimant to continue running the business. On the claimant’s evidence this appears to be from August 2019.[40]I am therefore awarding a basic award of £3187. This is calculated as 1 ½ weeks pay for five years complete service at a pay rate of £425 a week. I am awarding a compensatory award from 9 February 2019 to 31 July 2019, that is until the claimant suffered from depression which is not due to the respondent’s actions and which therefore breaks the chain of causation. That is 25 weeks loss at £357 a week, a total of £8,925.[41]The claimant received a payment of £520 from the respondent and earned £240 from her business. These sums must be deducted from the monies due from the respondent giving a compensatory award total of £8,165. Recoupment then applies to £2492.05 of this sum