Mr J Osokin v Moss and Coleman Solicitors Ltd: 3200748/2025 and 3200749/2025

EMPLOYMENT TRIBUNALS

Case No 3200748/2025, 3200749/2025

Between

Mr J OsokinClaimant

Moss and Coleman Solicitors LtdRespondent

Before

Employment Judge J S Burns

In person for claimant

Date 7 October 2025

JUDGMENT

[2]The Respondent, by 21 October 2025, must pay the Claimant the sum of £4,660.20 less any tax and national insurance contributions which are properly deductible from that sum as part of his wages due at the end of January 2025.

[3]The Respondent’s counterclaim is withdrawn. AMENDED1 REASONS Introduction 1 paragraph 29 only by the addition of three words shown in italics.

[1]The Claimant brought a claim referring to an “unpaid contractual bonus” and also to section 13 Employment Rights Act 1996, for unauthorized deduction from wages. The Respondent expressed doubt as to whether or not the Claimant had brought a contract claim, under the ETs Extension of Jurisdiction (England and Wales) Order 1994. The Respondent brought a counterclaim under Article 4 of the Order, conditional on the Claimant having brought such a contract claim. The Claimant confirmed in writing that he had not brought such a claim and was simply bringing a claim for wages. That being the case I have allowed the Respondent to withdraw the counterclaim on the basis that it is not to be dismissed but may be pursued in the County Court if the Respondent wishes to do so.

[2]Section 13 provides that an employer may not make a deduction from wages unless required by statute or unless previously authorized by the employment contract or otherwise in writing by the employee. Section 27 defines wages to include a bonus whether payable under (the employee’s contract or otherwise).

[3]In Coors Brewers Ltd v Adcock

[2007] IRLR 440

, the Court of Appeal held that employment tribunals do not have jurisdiction for claims of unlawful deduction from wages under section 13 if a "significant, identifiable sum" cannot be established. Wages claims under section 13 can only be brought in respect of straightforward claims where the employee can point to a quantified loss. If the amount due requires a detailed investigation to be quantified, the claim is not suitable for an Employment Tribunal and must be brought as a breach of contract claim in the county court, or by a tribunal if the employee is no longer employed and the matter is one of breach of contract. Findings of fact

[4]The Claimant was employed by the Respondent, from 14 December 2020 to 31 January 2025. His contract included the following:4.1 The Employer shall pay the Employee a salary ('Salary'') by B.A.C.S. at the rate of £48,000 per annum payable by equal monthly instalments in arrears on or before the last working day of each month.

4.2 The Employer shall in addition pay to the Employee a bonus calculated at the rate of 10% of fees billed and recovered in excess of the Employee's Fee Target.

4.3 The Employee's fee target is 3x Salary and will be £144,000 per annum (the "Fee Target'').

4.4 The Employer will review the Employee's billed and recovered fees from time to time and if the rate of billing suggests that the Fee Target will be exceeded will, at the Employer's discretion, pay a proportion of the expected bonus on a three monthly basis, with an account to be taken at the end of the year.

[5]In 2022 the Claimant exceeded his fee target and was paid his bonus in January 2023.

[6]On 1 April 2024 the Claimant salary increased from £54000 to £57000 per annum.

[7]The Claimant gave three months’ notice of termination at the end of October 2024.

[8]While his employment continued the Respondent’s Office manager would provide him every month with an account of his fees billed and other similar information.

[9]Shortly before his notice period expired the Claimant sent Mr Berry an email dated 21 January 2025 in which he expressed some concerns about a change he had noticed in the firm’s attitude towards him since he handed in his notice, and he asked for confirmation of the amount of his bonus. He wanted to get the matter finalized before he left.

[10]Mr Berry replied by email dated 23 January 2025 suggesting that the 2022 bonus had been paid only in April 2023 and that he proposed to make an interim payment only against the 2024 bonus. His email included the following: “To clarify again, bonuses are paid upon the money made for the firm. According to our current figures, your billing for 2024 was £89,351 over target, which suggests a bonus entitlement of £8,935.10. In terms of “adjustments to billing” on what we would count as paid and recovered fees, I am hopeful that ultimately there will be none. As I have mentioned however, the fact of issuing a bill and this being settled from funds received from or on behalf of a client is not the whole story, because in terms of money received on any matter where there is a problem, it is always going to be the case that our fees will be the first thing liable to be adjusted and the last thing paid. In my department for example, if money on the ledger was used for fees but we have missed paying Counsel, a client objection (directly or to the ombudsman) would invariably result in the need to write down fees to cover the cost of paying Counsel. On numerous occasions accounts have advised that they cannot pay a disbursement, but it has transpired that they have used client funds to settle a bill with 30 day payment terms as soon as it was prepared. The risk may be limited on the work that you have done, but if you have files that are finished but still open, we cannot know what is sitting there. In terms of any pre-decisions, there have been none. In terms of anything that might have an effect in the longer term, the only thing that we are aware of at this point would be the matter of Stalley which remains up in the air. Your letter on this was approved early in December, however when this was chased when you were on holiday the other party indicated that they had not received anything. Unfortunately therefore whilst we would have hoped that this would have been resolved by now (and it is in no one’s interest that we take a loss on that matter) it may not be resolved within the next 10 days. We are content to pay £4,500 of the bonus by way of a separate payment before you leave. We will do what we can to close and concluded files that have been left open and assess the position again in March with a view to hopefully finalising matters prior to the March payroll – i.e. in the same timescale as previously.”

[11]The Claimant replied by email dated 27 January 2025 which included the following: “Bonus payment timing: I must respectfully correct your statement regarding the timing of my previous bonus payment. You mentioned that paying the bonus in April is “broadly consistent with the timetable followed where other fee earners have received performance bonuses.” While I cannot comment on the timelines for other fee earners—unless this information is shared with me—I can only base my understanding on my own personal experience. The bonus for exceeding my target in 2022 was paid to me on 31 January 2023, not in April as you have stated. Therefore, my original request for my 2024 bonus to be paid on 31 January 2025 (which coincided with the day I am leaving the firm) was not an attempt to accelerate payment but simply to follow the timeline that had been established in the past. …. Request for payment of bonus: In light of the above, I would like to clarify my position. I am content to receive an interim payment of £4,500 by 31 January 2025, with the balance paid no later than 31 March 2025. I do not wish for this to extend into the new financial year, which I believe is not an unreasonable request. I trust this gives you sufficient time to review any files you wish to review. I would also be grateful, if you could please confirm that my understanding of the following points is correct: On the 31 January 2025 I should receive my usual pay (for December 2024), together with a separate interim bonus payment of £4,500 On the 28 February 2025 I should receive my usual pay for the month of January On the 31 March 2025 I should receive the balance of my bonus pay. “

[12]Mr Berry replied as follows by email dated 28 January 2025: “Request for payment of bonus: Regardless of the development on Stalley, the interim payment will be made as soon as possible. I understand that accounts have added this to payroll this month. In terms of your breakdown I am slightly confused: On the 31 January 2025 you should receive your usual pay for January 2025 and the part bonus payment. You were paid for December 2024 in December. There is no payment due in February 2025, although you may receive a payslip showing the bonus if the January payslips have already been done. We will address the balance of the bonus as soon as possible. Hopefully before 31 March 2025.“

[13]The Claimant’s employment ended on 31 January 2025. He was paid the net equivalent of the £4500 part bonus payment.

[14]The Respondent did not come back to the Claimant with any further adjusted figures for the Claimant’s 2024 billed and recovered fees, or for paying him the rest of his bonus by 31 March 2025, or at all.

[15]The “Stalley” matter referred to in Mr Berry’s emails above is a probate case in which the Respondent has got into trouble because money was distributed to beneficiaries in excess of their entitlements, leaving insufficient money to pay the IHT due, which accordingly the Respondent has had to fund. The Respondent, rightly or wrongly, blames the Claimant for this. It is unnecessary for me to decide where any fault may lie because, even if the Claimant was at fault, the bonus does not depend on a lack of fault by the Claimant, and there is no contractual or other written provision allowing any such losses to be set off against or deducted from the bonus.

[16]Mr Berry in evidence suggested that in the wake of the problems and client complaints arising on the Stalley file, the Respondent took the decision, sometime after the Claimant had left the firm, to reverse the firm’s bills which had already been paid (at the time he left) on the Stalley file. Of those Stalley bills he pointed to two in the sums of £1708 and £154 respectively which were included in the Claimant’s 2024 fees. I do not regard this as material because the bonus depends on what fees were raised and recovered on the correct calculation date and not on fees which were recovered on the calculation date but which the Respondent has decided without reference to the Claimant, to reverse later on.

[17]After the Claimant issued his ET1 on 20 May 2025, apart from the Stalley matter, the Respondent has advanced various other claimed reasons why it should not be required to pay the Claimant the remainder of his bonus.

[18]It suggests that work billed in 2024 had been done in 2023 and should have been billed then. That however is irrelevant, even if it is true, because the bonus depends on when the fees were raised and paid, and not when the work was done.

[19]In his witness statement dated 30 September 2025 Mr Berry wrote as follows: “It has also come to my attention that there was other work undertaken in respect of which there are payment issues. This includes the matters of Hails (invoice of £3416 + Vat) and Manning (invoices of £2,711.67 plus vat). On both these files one spouse died and work was undertaken, with the other spouse dying soon thereafter (those files are ongoing). The firm has received money in relation to one spouses' deaths, but not on the other. Authority is outstanding to take money from one estate to settle a bill on the other. Whilst we believe that we can get authority, it might be the case that we cannot, and these will be unrecovered fees…These are matters which have been billed, but where the fees haven't actually been recovered.”

[20]I asked Mr Berry about these invoices. He was not sure whether the money from one spouse’s estate had been in fact applied to pay the invoices on the other spouse’s estate but if it so this would have to be reversed “PDQ”. It is a claimed matter which has apparently been spotted only recently, months after the Claimant’s employment ended. There is no evidence that this was regarded as an unpaid fee situation in January 2025.

[21]The Respondent has also suggested it is entitled to make a deduction of course fees it paid for the Claimant. The relevant part of the contract reads as follows: “8.2 In the event that the employment is terminated other than on the basis of 8.1.3 or 8.1.4 (unless this is due to the Employee's misconduct) then the Employee shall be liable to reimburse the Employer as follows:8.2.1 In full for any training/accreditation/practicing fees paid by the Employer in the preceding 12 months;

8.2.2 Two thirds of any training/accreditation fees paid by the Employer more than 12 but less than 24 months prior to the termination date (but excluding practicing certificate or equivalent annual fees paid more than 12 months before the termination date);

8.2.3 One third of any training/accreditation fees paid by the Employer more than 24 but less than 36 months prior to the termination date (but excluding practicing certificate or equivalent annual fees paid more than 12 months before the termination date). 8.3 The Employer may deduct any sums due under 8.2 from the Employees final salary payment(s).”

[22]The Claimant disputed that he was liable to make any repayments under these provisions. Whether or not he is liable, and if so, the correct amount, was not properly dealt with in the witness statements or explored at all in crossexamination. In any event, I accept the Claimants submission that even if he was liable to make a repayment, clause 8.3 does not permit such a deduction to be made from his fee-related bonus but only from his final salary, and that the two are not the same as can be seen by reading clauses 3.1 and 3.2, which are set out above.

[23]In his witness statement the Claimant set out a schedule of his fees raised in 2024, based on his own records and on what he was provided to him before he left by the Respondent’s office manager by way of monthly internal reports. This shows that the Claimant billed a total of £260352 in the 2024 calendar year, that his target was £168750, that his amount over target was £91602 and that his bonus entitlement at 10% was £9160.20. The figures have been calculated to include the effect of the Claimant’s pay increase on 1 April 2024.

[24]In his evidence the Claimant agreed that Mr Berry had not said that all these fees were paid. The Claimant explained that as he was leaving the Respondent he was handing over files and he did not have in his possession specific knowledge about this, particularly in relation to the November and December 2024 fees.

[25]Apart from the figures provided in Mr Berry’s email of 23 January 2025, (which fail to make the appropriate adjustment for the fact that the Claimant’s salary changed during the 2024 bonus year) the Respondent has not provided any alternative relevant figures of its own. Conclusion

[26]The Respondent submits that this is not a straight-forward wages claim but a complicated dispute requiring firstly interpretation of the contract which, it submits leaves the following matters (inter alia) unclear:• What the assessment period is in relation to the bonus;

• When the Respondent should perform the calculation (assessment);

• What is meant by “fees billed and recovered”;

• What is to be taken into account in undertaking an assessment;

• The extent to which the employee should be involved in any assessment;

• When the bonus will be paid;

• Whether there would still be an entitlement if the employee was in breach of his contract.

[27]This is an unattractive submission for a number of reasons:

[28]Firstly, it was the Respondent which drafted the employment contract, and is now trying to rely on its own claimed drafting shortcomings.

[29]Secondly, the Respondent does not provide any or any satisfactory suggested answers to any of these suggested questions and lacunae.

[30]Thirdly, in submissions and evidence, Mr Berry suggested that even now, in October 2025, over nine months after the year in which the bonus was earned and over eight months after the Claimant’s employment ended, the Respondent has still not made up its mind about any of these matters, and would like to be allowed to carry on considering and assessing the Claimant’s fees and work (without any input from the Claimant) until some unspecified future date at which it may decide whether any balance of bonus is due to the Claimant, and if so how much.

[31]There are obvious practical problems with such an approach to the bonus entitlement, which approach was not adopted by the Respondent when the Claimant was paid his 2022 bonus in January 2023, and which I have no doubt would not have adopted in January 2025 had the Claimant not handed in his notice in late 2024.

[32]Logically, applying Mr Berry’s approach, he could carry on waiting and mulling things over until the limitation period for any claims against the firm on all the Claimant’s files had expired, perhaps around 2031, during which period the Respondent might decide to reverse and refund fees previously paid. In effect Mr Berry’s approach would mean that the bonus entitlement would be unenforceable and a dead letter.

[33]I find that there are really only two questions which need to be answered in determining the bonus.

[34]The first is the sum of the Claimant’s 2024 paid fees. The Claimant has provided the best figures he can in his witness statement, showing that as far as he knows, and based on the internal reports of the Office manager, they are as per paragraph 23 above.

[35]Whether any of the fees were unpaid is a matter peculiarly within the knowledge of the Respondent, whose Office manager would have been able to provide a ready and precise answer to Mr Berry had he asked her in January 2025 for this information. Had he done that, and had he disagreed with the record of the Claimant (who was eager to settle the matter then) he could have told the Claimant what the correct sum of his paid 2024 fees was, the bonus calculation would then have been a matter of simply arithmetic and that would have been the end of the matter. Even now the Respondent has not done that.

[36]The second question is when should the calculation be made. That this should be as soon as possible after the end of the calendar year during which the fees were raised (i.e. during the following January) is not only a matter of common sense but it accords with clause 3.4 of the contract which refers to “an account to be taken at the end of the year”, and also with the practice of the Respondent in calculating and paying the Claimant’s 2022 bonus in January 2023. That means that problems and caveats which may be identified subsequently, and such as those which have featured in the Respondents defence, are not considered.

[37]I regard the Claimant’s evidence and figures as the most reliable and the best evidence as to his entitlements in January 2025 and the Respondent has failed to show that they are inaccurate.

[38]The Respondent has raised all sorts of difficulties and excuses for not paying, many of which have appeared only much later than the date on which the Claimant should have been paid which was on 31 January 2025. Despite this, I do not regard this matter as complicated and requiring difficult problems of construction or interpretation and I reject the submission that the claim cannot succeed as wages.

[39]The Claimant has identified a significant sum which on the best available evidence he was due as part of his wages and which should have been paid by no later than the end of January 2025.

[40]Hence his claim succeeds in the amount of £4660.20 gross (the difference between £9160.20 and the £4500 part payment). This sum must be paid by the Respondent net of tax and NI contributions and at the same time the Respondent should send the Claimant a revised January 25 payslip and P45.

[41]In his schedule of loss, the Claimant claimed interest which I do not have power to award. He also claimed consequential losses flowing from the late payment. Such consequential damages cannot be recovered in a wages claim so I do not award them either.