Mr M Ahmed v London Ambulance Service NHS Trust: 3206016/2022
EMPLOYMENT TRIBUNALS
Case No 3206016/2022
Between
Mr M AhmedClaimantLondon Ambulance Service NHS TrustRespondent
Before
Employment Judge MoorMs S Sheerin (instructed by counsel) for claimantMiss J Whiteley (instructed by counsel) for respondentDate 6 September 2024
JUDGMENT
[1]The claim of unfair constructive dismissal is not well founded and does not succeed.[2]The claims for unlawful deduction of wages do not succeed.[3]The claim for breach of contract does not succeed. JUDGMENT having been sent to the parties on 16 September 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.
REASONS
[1]The claimant was employed as a 111 health adviser with the Respondent from 23 September 2019 to 22 July 2022. He presented complaints to the Tribunal on 21 December 2022 after a period of ACAS EC from 15 October 2022 to 26 November 2022.[2]This hearing was held to deal with the following issues. (I set out the agreed list of issues in a different order and with slight wording change). Unlawful Deduction from Wages / Breach of Contract[3]Was the Claimant entitled to be paid the following sums, and, if so, did the Respondent fail to pay them? 3.1. £8,773.05 due to deduction to the Claimant’s income from December 2021 to 22 July 2022; 3.2. Final wage for July 2022; and 3.3. £450 which was deducted in three instalments of £150 from April to June 2022.[4]Did the Respondent do any of the following things? 4.1. Altering or reducing the Claimant’s income; 4.2. placing the Claimant under financial constraint, contrary to the terms agreed by the Claimant; 4.3. deducting an amount from the Claimant’s pay not authorised by the Claimant or permitted by statute; 4.4. failing to agree to a reasonable or fair deduction for repaying the alleged sums owed; 4.5. failing to follow through or discuss the proposal made by them to the Claimant to work the additional hours which he was paid, to reduce the overpayment; 4.6. failing to consider that the Claimant no longer had the funds paid to him as the amount was spent in good faith and now we was made to readjust to a 50% reduction in pay whilst he had a newborn and a wife on maternity pay.[5]If so, did this amount to a breach of contract, and was it sufficiently serious to have justified the Claimant’s resignation? In particular, did the Respondent, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage trust or confidence? The Claimant relies on the above matters as individually or cumulatively amounting to a repudiatory breach of his contract:[6]Was the Claimant’s resignation on 22 June 2022 in response at least in part to a fundamental breach of his contract by the Respondent?[7]Did the Claimant waive or affirm any of the alleged breaches of the implied terms relied upon?[8]The Respondent confirmed it did not pursue the alternative argument that, if there had been a fundamental breach of contract, it was for a potentially fair reason. Breach of Contract (Notice Pay)[9]Was the Claimant constructively dismissed, such that he is entitled to the payment of notice?
Findings of Fact
[10]I find the facts by deciding what was more likely to have occurred. Having heard the evidence of the Claimant, Ms M Qureshi, General Manager for Integrated Urgent & Emergency Care, Mrs J Niner, Director of Integrated Care, and Mr R Dawson, Head of Payroll, and having read the documents referred to me, I make the following findings of fact.[11]The Claimant applied to work as a health adviser. The job entailed taking calls from the public on the 111 non-emergency health advice line. It required applicants to pass a 5-week training course.[12]The Claimant had previously worked as a bus driver. After he resigned his job with the Respondent he returned to bus driving. In 2022 the basic hourly rate of a bus driver was £12.39. In the past the Claimant had tried to obtain work as an Underground driver at much higher rates of pay, he had been unsuccessful. After his resignation with the Respondent, he did not think of applying for jobs at higher rates of pay demanding higher skills, such as a teacher, because he did not have the relevant skills or qualifications.[13]On 17 April 2019 after interview the Respondent informed the Claimant that he had been successful in his application for the role. On 18 April 2019 the Claimant informed the Respondent he would only be able to work part time the minimum 15 hours a week. In an email of 25 April 2019 the Respondent confirmed that 15 hours over a 24/7 shift pattern was acceptable.[14]A summary offer was sent to the Claimant stating the post was Health Adviser 111-Barking at pay band 3. This summary stated the salary range to be £22,535-24,517 a year including higher cost area supplement. HCAS. His hours were stated as 15 hours per week.[15]I find that if the Claimant had enquired as to what ‘pay band 3’ meant in this summary he would have been referred to the pay bands agreed in the Agenda for Change terms and conditions I shall refer to later. The sums quoted to him in this summary were the full time equivalent salary range in pay band 3 in Agenda for Change, Mrs Niner confirmed this in her evidence. If the Claimant had not understood this at the time he read the summary, he would have understood it once he received the next document.[16]On 4 July 2029 the Respondent sent the Claimant a contract for full time work [67]. Section 1 set out in table form a summary of the main terms. (‘the full time contract’). This summary section stated: 16.1. Hours: 37.5 hours a week. 16.2. Basic Salary range (full time equivalent): Band 3 £18,813 - £20,795 plus a High Cost Area Supplement of 15% of basic salary subject to minimum and maximum ‘pro rata’. 16.3. ‘Actual salary while training (basic and HCAS) £19,318 (75% of the full band 3 salary).’ 16.4. ‘Actual salary on completion of training (basic and HCAS) £22,535 including HCAS.’ 16.5. Unsocial hours ‘in line with Agenda for change terms and conditions of service section 2… 16.6. Salary scheme: NHS Staff Council Handbook ‘agenda for change terms and conditions of service’[17]The contract quotes pay bands again from the Agenda for Change terms and conditions and cites the salary scheme set out in Agenda for Change.[18]The Claimant quite properly got back to the Respondent to say that the contract was a full-time contract when he had applied for part time work. The Respondent sent the contract again. The section 1 table now stated ‘15 HOURS’ but no other corrections were made. The ‘actual salary’ line in the summary section 1, still read: ‘Actual salary on completion of training (basic and HCAS) £22,535 including HCAS.’ In other words, the same as the full time contract he had received. His evidence is that, at the time, he did not look at this second contract except to check the hours change. The Claimant accepted in cross-examination that the ‘actual salary’ line was an error. He accepted this during discussions about the overpayment once it became apparent. I do not accept the Claimant’s case that at any time during his employment he thought he was entitled to be paid the same part-time as he would have been entitled under the full-time contract sent to him. He did not proceed therefore on the understanding that he expected to be paid £22, 535 for 15 hours a week.[19]In the contract itself the following clauses are relevant:[20]Clause 2.1 This appointment is subject to the National Terms and Conditions of Service that are agreed by the NHS Staff Council, details of which are contained in the NHS Staff Council Handbook "Agenda for Change terms and conditions of service" available on the NHS Employers website www.nhsemployers.org[21]Mrs Niner explained and I accept that Agenda for Change set out the agreed ‘pay bands’ for every role in the NHS and ambulance service. A pay band meant a pay range. The pay band in Agenda for Change for the Health Adviser role was pay band 3. Thus when in the contract it states Pay Band 3 that is a reference to the bands set out in Agenda for Change. I accept that at the time of contracting with the Claimant the basic pay range for pay band 3 was £18,813 - £20,795 and that this was the band set out and agreed in Agenda for Change for full time hours of 37.5 hours. Agenda for Change also agreed ‘steps’ (previously known as points) within each band. A new starter would be on ‘step 0’. Again that language is a reference to the language in Agenda for Change.[22]Clause 4 ‘remuneration ‘Should an overpayment/underpayment of salary occur you will be notified in writing, and appropriate amendments will be made to recover any overpaid sum thereafter.’[23]Clause14.1 If either during or on the termination of your employment, you owe the Trust money as a result of any overpayment, default on your part or any other reason whatsoever, the Trust reserves the right to deduct any amount you may owe the Trust from any payment or final payment of wages which may be due to you. Such deductions may include but are not limited to: An overpayment of or advancement on wages or expenses whether made by mistake or otherwise Clause14.2 If the Trust accidentally overpays you in respect of wages or expenses in a particular pay period, you should act immediately, responsibly and notify your line manager. Failure to do so in these circumstances may lead to disciplinary action being considered. Clause14.3 If, on the termination of your employment, your final payment of wages is not sufficient to cover your debt to the Trust, you agree that you will repay the outstanding balance to the Trust within one calendar month of the date of termination of your employment. Such payment to be made as agreed with the Trust.[24]The contractual notice required to be given by either side on termination was 4 weeks’ notice at the time the Claimant resigned.[25]Pay was calculated by calendar month from 1st to the end of the month and paid in arrears. Training[26]On 8 July 2019 the Respondent told the Claimant his training would be full time and he agreed.[27]The Claimant trained full-time from 23 September to 17 October 2019 but failed the course. He undertook the next course between 6 January and 10 February 2020 and passed. The Claimant worked full time during this course and was paid at the end of January for 136.66 hours – 3.6 weeks’ 18 days’ of full time work £1198.85 (293)[28]I find therefore the Claimant did work for 5 weeks’ full time before moving onto part-time work. His statements to the contrary in correspondence were therefore incorrect.[29]When the Claimant moved from full-time work to part-time work, this change was not recorded on the Respondent’s system and he continued to be paid full time. The payslips show this as I shall come to. Work and payslips[30]In February 2020, the Claimant trained full-time for the first 6 working days then started part-time work on 11 February 2020 for the remaining 14 working days of the month. His February payslip paid him net £1557.51 thus he was paid £359 net more for about 1 week full time and 3 weeks of part time work (the equivalent of 1+1.2 weeks full time work = 2.2 weeks’ equivalent of full time work) than he had been paid for 3.6 weeks of full time work while training which he knew to be paid at 75%.[31]The Claimant had not looked at his actual rate of pay on the contract at page 86 so had no expectation arising out of that.[32]The next month March 2020, again the Claimant was paid net £1668 for a 40% month (including an extra £40 odd gross for one unsocial hours shift and no overtime). This again was far more than I had earned in January for 3.6 weeks at 75%. I find the difference to be so large as to be noticeable.[33]The Claimant suggests he did not notice that his pay for part-time work had in fact gone up because his payslips were confusing and there was overtime on them. I do not find that to be credible but a self-serving excuse. This is because in the first two months of part time work there were no overtime payments to confuse him.[34]The Claimant says he did not understand his payslip but there are two aspects of it which leap out clearly. The first that on his 2020 payslips from March 2020 his standard hours remain recorded as 37.5. This is recorded separately in a simple box towards the top of the payslip. He knew this to be plainly incorrect. I find that the Claimant is not likely to have been confused by the clear statement. If he had been there was guidance to look at on the intranet Pulse (which he knew how to access) about how to read his payslip or he could have asked his manager or payroll.[35]The second clear matter from the payslip is the ‘rate’ recorded as 9.6213. This in my judgment could only mean hourly rate for the job. There being no other ‘rate’ which could relate to pay at about this amount. I find the Claimant is likely to have understood this and do not accept his evidence that he did not which was in my view not credible. He had worked in a PAYE job before. This was not the first payslip he had to read. If he had multiplied the hourly rate by the number of hours he worked over a month he would have known the payslip was plainly wrong. 15 x 9.6213 x 52/12 = £625.38 gross. His gross is given at £1812.49, £1200 higher. Even netted down it would have been obvious in my judgment to the Claimant that something was wrong because he was being paid 100s of pounds a month more than he expected.[36]On balance I find that the Claimant did notice this significant rise in his monthly salary when in fact he was doing less work and did notice that he was being paid very generously indeed. Yet the Claimant did not raise this with anyone. He did not make any query about his pay, he did not query the payroll hours, and did not look back at his contract or the Agenda for Change terms to check.[37]The Claimant’s wife worked in the same job as him. Do I accept that they did not talk about their income? Many spouses do not talk about money. I do not find that statement implausible as such. The difficulty for the Claimant here is that his evidence is also that he budgeted family spending according to their joint income. He is likely to have known therefore his wife rough income for 4 days’ work so that he could include this in the family budget. The difficulty for the Claimant is that this will have revealed to him that it was less than he was receiving. Even though his wife worked 4 days and he worked 2 days. This too is likely to have alerted him to being paid incorrectly but he did nothing.[38]At best the Claimant was wilfully blind about pay. I find it entirely unsurprising that Mrs Niner considered in an internal email that he likely knew but deliberately said nothing.[39]The facts of the case are not that the Claimant relied on the statement of ‘actual salary’ in section 1 of the part time contract at p86. To the contrary, he says he only checked the hours not the rate on that document. Even once the overpayment was drawn to his attention he did not go back to look at his contract.[40]The Trust continued to pay him at full-time rates. This meant he was paid the full time equivalent of £56,335 per annum or £28.89 gross per hour. It is ridiculous to suggest that the Claimant thought he was in a job paying that equivalent salary. This was a band 3 job. It required a training course of 5 weeks. It was plainly not a job that was worth that level of salary. He knew he was not qualified for a job at such a salary, as effectively he admitted in explaining why he did not seek jobs paying such rates after he resigned.[41]It is suggested by Miss Sheerin that the Respondent did not provide the Claimant with information about his pay. I disagree. Pay information was clearly set out in the payslips as I have described.[42]On his pay slip, while perhaps it is more difficult to see at first glance, in addition to the ‘standard hours; section at the top of the page’ that showed full-time hours, the ‘wkd/earned’ column also relates to hours worked. The payslips do not record the 65 hours he worked on average a month, but showed 162.95 hours a month equating to 37.5 hours a week, which he did not work. The payslips therefore informed the Claimant every month that the Trust thought he was working full-time and paid him accordingly.[43]I find it likely therefore that the Claimant did realise he was being paid for full time hours that he had not worked. Nevertheless he carried on and did not say anything. In doing so he did not act in good faith. Overpayment[44]After 1 year and 10 months the Respondent discovered its error. On 17 December 2021 it informed the Claimant he had been overpaid. The Claimant did not object.[45]The Claimant’s payroll was amended from 1 December 2021 to avoid further overpayment. From then on the Respondent paid him at the pro rata full-time rate for the job. He did not object.[46]On 14 January 2022 Sarah Hewitt of payroll wrote to the Claimant confirming that he had been overpaid and the amount (£24,775.71 gross). She gave her sincere apologies for the error and said it had occurred because payroll was not notified when he moved from full-time work to part-time work. She explained the Respondent was ‘duty bound’ to recover the amounts. She reminded him it was his responsibility to check his payslips. She proposed a recovery rate of £250 gross per month from February 2022. She explained tax and NI would be adjusted to reflect those repayments. (What this meant was that the Claimant would effectively pay less tax and NI because the deduction reduced his overall pay.) She asked for his agreement but stated recovery would take place if she did not hear from him by 13 February 2022.[47]The Claimant responded to this notification at p157. He wrote, ‘I understand you need to recover the overpayment’. He did not object to the statement that he had been overpaid. He suggested £150 per month for two years as a settlement. I accept his evidence that he could manage this monthly payment although it would be a struggle knowing that it would be limited to two years. He said did not accept the reason for the overpayment was because he had not moved from full-time to parttime work. He had obviously forgotten that his training work had been full-time. He said he did not understand his payslips and they were ‘not detailed’. I certainly do not accept this second statement and have identified two parts of his payslip the Claimant did likely understand. He said ‘I’m now trying to adjust to a reduced payment’ and that he had a new born baby (6 months) and a wife currently on maternity pay and that he could not afford £250 per month.[48]Ms Hewitt replied giving a good explanation of the relevant parts of the payslip. She explained he had been paid at more than double the rate for the job and recovery was necessary as the service is publicly funded. She said payroll could not change the amount of the overpayment but repayment would be discussed. Negotiations for Repayment[49]There then followed a series of meetings and emails during which the Respondent and the Claimant discussed repayment.[50]Internal documents show that Mr Ivory, Deputy General Manager (his manager’s manager), fully supported reclaiming the money but also wanted to ‘help ensure Mohammed was not given any more stress on a monthly basis with trying to meet the financial requirements’. I do not accept submissions that the Respondent had no regard therefore to the Claimant’s position.[51]At a meeting on 11 February the Claimant offered to repay £100 per month. He suggested that he should not pay the tax and national insurance that would have been deducted and requested a 50/50 split of the debt as between him and the Respondent. This request was referred to more senior people in finance for a decision.[52]Mr Ivory explained that so far as a tax rebate was concerned that was for the Claimant to liaise with HMRC. That was perfectly proper.[53]On 20 February 2022 Mr Ivory wrote an internal email to Miss Quereshi, his manager, and Ms Hall, of HR, that Payroll had accepted £100 per month repayment and HR would meet with finance to consider some of the debt be written off. The Claimant did not know about this at the time. He does not remember any meeting where this was agreed with him but speculated in his evidence that if it had been agreed internally he would have been told. As there is so much information in the documents I do not find that the Claimant was told because there is no reference anywhere in the emails and records that he was told. The Claimant himself would have referred to it at the time in an email if repayment at £100 pm had been agreed with him.[54]The Claimant chased for a response. He saw Mr Ivory on 2 March 2022 and was in tears. Mr Ivory chased Ms Dogba of HR on the same day and on 18 March. On 22 March 2022 she responded internally saying a meeting had taken place with finance to see if some of the debt could be wiped.[55]On 1 April 2022 Mr Ivory asked Ms Hewitt if she could inform the Claimant that the Respondent would start deducting £150 from his monthly wages at the end of the month. The manager took the view that even if some of the debt was waived there was going to be some that needed to be paid back and this should start as soon as possible. Ms Hewett agreed. On 4 April 2022 Mr Ivory wrote to the Claimant saying no reduction had been agreed at the meeting with finance and £150 a month would be deducted. He stated ‘I understand is decision will be a cause of concern and want to offer you the below support services that staff are able to access…’ He referred the Claimant to staff support counselling, the employee assistance program, the confidential helpline and the health and well-being platform. I reject the contention that the Respondent had no regard to the Claimant’s welfare given Mr Ivory’s approach.[56]Mr Dawson of payroll confirmed internally on the same day that the recovery would be gross £150 and that would mean a reduction net of around £100 because of tax and Ni relief. The Claimant will have seen from his payslips that the £150 deduction was gross.[57]The Claimant was upset about this decision because had a baby and a wife on maternity pay. He wrote to Miss Quereshi on 5 April 2022 (188) that ‘I’ve always said I’m happy to pay the overpayment but I refuse to pay money that was deducted for tax and NI.’ He asked for her help. In early May 2022 he was advised to speak to the director Mrs Niner. He wrote to her on 6 May 2022 asking for a 50/50 reduction or tax and NI to be removed. He said he was happy to pay the overpayment he had actually received. He loved his job and felt settled. But he said that, by forcing him to pay back tax and NI, the Respondent was leaving him with ‘no choice but to look for alternative employment’.[58]On 16 May 2022 he requested an update. On 22 May Mrs Niner replied stating it had been a busy time. She wrote explaining it was unlikely that the 50/50 proposal would be accepted because it concerned public money but she would seek guidance. She wrote that in the meantime they should consider ways to support him to repay monies owed. She suggested, in addition to the affordable deduction arrangement, they could arrange for him to work the hours that he had been paid for and asked whether he was willing to consider this.[59]Mrs Niner wrote to Miss Quereshi asking for some information before taking the matter to the executives for a final decision on the waiver of repayment part of the overpayment.[60]The Claimant replied on 24 May 2022. He considered it was unfair for him to take the loss representing the tax and Ni because he had never received that amount. He said ‘while it is easy to blame me for the overpayment equally why did it take the trust so long to notice the overpayment. After all those years the blame cannot be my sole responsibility…I’m happy to consider extra hours however I need to know roughly how many extra hours I need to work and for long before I could commit to anything.’ Mrs Niner told the Claimant on 24 May 2022 that Miss Quereshi would pick this upon her return from leave.[61]On 13 June 2022 the Claimant asked Miss Quereshi for an update. She responded saying she had sent all the information requested to Mrs Niner that day and if he had not heard anything in a week’s time he should get in touch.[62]Internal emails show the matter was being discussed on 16 June 2022. Mrs Niner being firmly of the view that the Claimant could work some of the hours owed. She told me and I accept that hours were always available if Claimant had wished to work them.[63]On 20 June 2022 the Claimant resigned. In his resignation letter to his line manager he stated ‘Please consider this email as a formal notice to resign from LAS. The reason for my resignation is due to childcare issues as Tohima [his wife] will be returning back to work next month and our shifts clash. I would like to return as bank so I could pick up shifts around Tohima’s rota. I understand I need to provide four weeks’ notice my last day will be 22 July 2022.’ On 22 June 2022 he informed Miss Quereshi, ‘On Monday I handed in my resignation and requested to go bank due to childcare reasons as Tohima is due to return next month.’ On 24 June 2022 he wrote to Mrs Niner to tell her of his resignation and in that email still maintained he would repay the net overpayment while working on the bank.[64]The bank is the system at the Respondent whereby it engages with workers on a more casual basis to do the work.[65]In his evidence, the Claimant said he did not state in his resignation letter that the reason was anything to do with overpayment issues as his manager did not know about them and he did not want his manager to know about them. But nor did he tell Miss Quereshi in the 22 June email that the reason was anything to do with overpayment issues and she knew all about them. Further he told Mrs Niner he was still happy to pay the net overpayment while working on the bank.[66]The Claimant had not looked at his contract until after his resignation. It was only when he looked at his contract that he felt the OP was wrong. His view about its interpretation cannot therefore have been part of his reasons for resignation.[67]He referred in his oral evidence to the stress of the 6 months prior to the resignation as being partly the reason for his resignation but I am afraid I do not accept that. This is because he still in his resignation letter offered to repay the overpayment. If he was resigning to get rid of the stress of that he would not have done so. The Claimant was prepared to complain about matters during the negotiation, if he really had left because of anything to do with the overpayment or the process of negotiation he would simply have said so, if not to his manager certainly to Miss Quereshi.[68]I am reinforced in this view because in his grievance post -resignation he says that he resigned because his wife was returning from maternity leave and that he had planned to work on the bank months before the overpayment issue arose. (‘I requested to go bank as Tohima works four days a week and I do two days a week this week so I can pick up my shifts around Tohima’s schedule… Months before the overpayment was brought to LAS attention I spoke to senior management to go bank when Tohima returns.’) It was also his evidence to me that even before the overpayment issue arose he had planned to go on the bank once his wife returned from maternity leave. This is because she worked more days and he could be more flexible. He had been advised and knew that this would require him to resign.[69]In his witness statement for the first time the Claimant says he had other reasons for resignation: 69.1. His pay had been reduced by 50% 69.2. His wages were confirmed prior to his employment. 69.3. Contrary to the sums agreed the deduction was more than he could afford. 69.4. It was his employer’s fault. And they had not assisted or aided his well being.[70]On balance I find these matters to be retrospective thoughts. In particular the Claimant did not know what his contract said about wages at the time of resignation – he had not looked at p84 when he received it and he had not looked at it prior to resignation. In my judgment, at the time the Claimant resigned he had one reason for doing so and one reason only and that was his long-term plan to go onto the bank system when his wife returned from maternity leave. The Claimant was aggrieved about the overpayment and the difficulty of the negotiations and the stress the overpayment was causing him but none of this was the reason for the resignation. It does not make sense that it was especially as he acknowledged that when on the bank he would still have to repay the money.[71]On 27 July 2022 the Claimant was not paid. Payroll informed the Claimant this was because he had resigned and a large amount was left owing.[72]On 26 October 2022 the Respondent sent the Claimant an invoice for £16,954.17. Now that they were not recovering the sums via PAYE they deducted the tax and Ni from the amount.
Legal Principles
[73]Chitty on Contracts says a useful summary of the principles of commercial contractual construction (interpretation) can be found in the judgment of Popplewell J in Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Ltd (The “Ocean Neptune”)264 in the following terms: The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; …[74]Chitty observes that if one party made a mistake in his offer and the other knew what the offer was meant to be but purported to “snap up” the apparent offer, the result may be that there is a contract on the terms the first party intended. This was the result reached in Ulster Bank Ltd v Lambe in which the claimant had made an offer to settle a claim for €155,000 when they meant £155,000 and the defendant knew this. Weatherup J treated the offer as one for £155,000 “mistakenly expressed in euros” and enforced the settlement accordingly.[75]Section 95(1)(c) of the Employment Rights Act 1996 (‘the ERA’) provides that there is a dismissal where the employee terminates the contract in circumstances such that she is entitled to terminate it without notice by reason of the employer’s conduct. This is known as a ‘constructive dismissal’.[76]An employee is entitled to terminate without notice (treat herself as constructively dismissed) when the employer has committed a repudiatory breach of contract, Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, namely: ‘a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract’.[77]Here the Claimant relies on the contended term as to salary and the implied term existing in all employment contracts ‘the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’, see Malik v BCCC SA [1998] AC 20, 34H-35D (Lord Nicholls).[78]A breach of this implied term is inevitably a repudiation of the contract, see Browne-Wilkinson P in Woods v WM Car Services (Peterborough) Ltd [1982] ICR 666, 672A. The test of whether there is a breach of it is objective, and not dependent on the employee’s subjective view.[79]We also have regard to the principle that a course of conduct can amount to a breach of the implied term: individual actions may not in themselves be sufficient but taken together may have the cumulative effect of such a breach. The last incident relied on does not need to be serious (a breach in and of itself), see Lewis v Motorworld [1986] ICR 157, but it must contribute, however slightly, to the breach of the implied term, Omilaju v Waltham Forest LBC [2005] ICR 481. This is an objective test: even if the employee finds it hurtful, if the last act is entirely innocuous it is insufficient.[80]If there is a repudiatory breach the employee must show that she resigned in response to the breach or, at least in part, in response to the breach: Nottinghamshire County Council v Meikle [2004] IRLR 703 CA.[81]After any repudiatory breach the employee has a choice, either to affirm the contract and continue to work or to accept the breach and resign and treat herself as dismissed. Delay in resigning after the breach is not, of itself, affirmation but, in an employment context, it may be evidence of an implied affirmation. This is because, by working and receiving a salary, the employee can be said to be doing acts consistent with further performance of the contract and therefore affirmation of it, see WE Cox Toner Ltd v Crook 1981 ICR 823 EAT. If the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farnworth Finance Facilities Ltd. v. Attryde [1970] 1 W.L.R. 1053.[82]If I find there was a constructive dismissal, the Respondent concedes it would be unfair contrary to s98 of the ERA. Unlawful Deduction of Wages[83]Section 13 of the Employment Rights Act 1996 provides: (1) an employer shall not make a deduction from wages of (a) worker employed by him unless a deduction is required or authorised to be made by virtue of a statutory position or relevant provision of the works contract or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. (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.[84]It has been established that ‘properly payable’ is a contractual test.[85]While I did not take it into account in my oral reasoning, I note also the provisions of section 14(1)(a) of the same Act, which provides: Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of (a) an overpayment of wages … Submissions[86]Both representatives gave polished, useful and intelligent submissions and assisted me with my sometimes testing questions. This judgment has been improved by counsel’s assistance in their submissions. I do not repeat them here. But I do deal with the main arguments when I come to my analysis.[87]I was grateful for the bundles of authorities provided to me, which in the main stated or referred to the main principles. I have only two brief points to make from them in addition.[88]Miss Sheerin referred to the Weathersfield case which restates that the reason for the resignation is a finding of fact for me to make. The reasons do not need to be given in the letter of resignation, though I note that the contents of the letter of resignation may be relevant to the employee’s reasons.[89]Miss Sheerin cited Quilter (although did not cite the high court authority in the other direction Cockram), both cases concerned whether, at common law, the giving of contractual notice amounts to an affirmation. This is not relevant for me because section 95 of the Employment Rights Act 1996 allows an employee to give notice but also claim constructive dismissal. Application of Facts and Law to Issues Unlawful Deduction of Wages Claim[90]In order to determine what was ‘properly payable’ to the Claimant in any month, I must determine what pay he was contractually entitled to.[91]This requires me to decide the proper construction of the contract. 91.1. The Respondent argues that the contract should be construed that the Claimant was entitled to a Band 3 salary plus Higher Cost Area Supplement at 40% of the band 3 full time equivalent to reflect his part time hours. 91.2. The Claimant argues that the wording of the ‘actual salary’ line in clause 1 of the contract is what the Respondent agreed to pay him for working 15 hours a week.[92]The difficulty in this case is that 92.1. First, if ‘actual salary’ in clause 1 means actual salary to be received by the Claimant rather than ‘actual salary full time equivalent’ then the Respondent had offered the Claimant the same actual salary for 2 days’ work as it had offered him for full time work in the earlier offer on p64. That is because the actual salary quoted in the Claimant’s part time contract is the same as the actual salary quoted in the full time contract given to him. If I had asked either party at the time of contracting whether they intended that, I am satisfied that neither would have said yes. 92.2. Second, if actual salary in the part-time contract means actual salary to be paid then the contract itself is internally inconsistent because the amount falls into the range of the ‘basic salary full time equivalent’ section above.[93]Miss Sheerin says this second point is not problem because I should read ‘pro rata’ in the ‘basic salary’ section as meaning that this line too had already been pro rata’d down to 40%. On its own that might make sense but it does not make sense when reading the contract subject to the Agenda for Change as I must do by reason of clause 2.1. Agenda for Change sets the band 3 range based on 37.5 hrs a week – the full time range. The ‘Band 3’ quoted in the basic salary line must come from somewhere and I accept that it comes from the Agenda for Change pay rates as Mrs Niner explained and as suggested by the clause 1 statement that the ‘salary scheme’ is the Agenda for Change scheme.[94]I have found that the pay band 3 range quoted in ‘basic salary full time equivalent section’ is the full time rate for pay band 3 in Agenda for Change. Thus I cannot resolve the difference between the two lines in the way suggested by Miss Sheerin because then the contract would be in conflict with the Agenda for Change bands to which it is expressly subject by clause 2.1.[95]In my judgment, to make business sense of the contract and to ensure that it is internally consistent, the ‘actual salary’ line must be construed to mean the ‘actual salary full time equivalent’. It would not be otiose or redundant to read it in this way because the basic full time equivalent section above gives only the range rather than pinpointing a figure in that range. The actual salary line pinpoints the step (or point) on that range on which the Claimant will start. And that information is useful additional information. The recipient who works 15 hours simply multiplies it by 40% to know what he will receive. This interpretation would mean the contract was internally consistent and consistent with Agenda for Change to which it is subject.[96]In my judgment this is also the interpretation a reasonable person would reach who had access to all the material and who read the contract ‘as a whole’. That is because a reasonable person would not conclude, knowing about the Agenda for Change bands, that either party intended that the Claimant would be paid the same for 15 hours as colleagues working in the same job for 37.5 hours.[97]To put it another way, this is the correct interpretation because the Agenda for Change bands trump anything that is said in clause 1 which contradicts them. That is because Clause 2.1 states that the contract is ‘subject’ to Agenda for Change. Agenda for Change sets out agreed rates of pay for every job in the NHS and LAS. Thus the actual salary line must be read subject to Agenda for Change and, if so, it can only mean the full time equivalent actual salary.[98]It would not help the Claimant to say (as has been his mantra of ignorance in this hearing) that he did not look at Agenda for Change or at its pay bands. Agenda for Change was referred to in his contract along with its website address and he had every opportunity to look. Indeed the Claimant did not look at the actual salary line at all.[99]Finally, I deal with Miss Sheerin’s ‘performance’ argument below, suffice to say that I do not accept that if we were to look at how the Respondent performed the contract that this supports her contended-for construction. That is because the payslips show the Respondent was paying for fulltime work that it thought the Claimant was doing, not part-time work.[100]In conclusion I interpret the ‘actual salary’ line in the contract to mean actual full time equivalent salary.[101]I go on therefore to deal with the alleged deductions. Reduction of salary to part time[102]When the Respondent paid the Claimant according to the 15 hours he worked a week from the pay date at the end December 2021, they were paying him in accordance with the contract. He was receiving what was properly payable and no unlawful deduction of wages was therefore made. This claim therefore fails. Deductions of £150 x 3[103]When the Respondent deducted £150 gross from his monthly pay in April, May and June, I accept that this was to recover part of a genuine overpayment of wages. The Claimant had been paid from February 2020 to November 2021 at the full time rate rather than 40% of the full time rate. He was only contractually entitled to be paid at the 40% of the full time rate and therefore had received a very large overpayment.[104]I then look at the provisions of section 13 to check whether this was a deduction which could be lawfully made.[105]Under section 13(1)(a) – was the deduction authorised to be made by a relevant provision of the worker’s contract?[106]First, a deduction is allowed for by Clause 4 which provides that after notification in writing, appropriate amendments will be made to recover any overpaid sum. Amendments in this clause must mean ‘amendments to pay’.[107]Clause 14.1 comes in two parts – it allows for the deduction of money ‘owed’ ‘as the result of any overpayment’ including ‘an overpayment of wages … made by mistake’.[108]While I did not refer to it in my oral reasoning, section 14 of the Employment Rights Act 1996, simply excludes a deduction to recover an overpayment from being an unlawful deduction and that is the end of the argument. But because I did not appreciate this when giving my oral judgment I dealt with Miss Sheerin’s intelligent arguments in turn.[109]First she argues that for the deduction to be lawful it must be ‘owed’ and the Claimant spent the money paid by mistake in good faith and he does not therefore ‘owe’ it to the Respondent under the rules of recovery of unjust enrichment.[110]I am afraid that I do not accept that argument. 110.1. First, the Claimant has not shown in his evidence that he spent all the money. All he has said is that he budgeted according to income. He has shown no statements as to his savings. During this period his wife was also working 4 days a week or receiving maternity pay. He has not established on the evidence that he spent all of the overpayment. 110.2. Second, I’m afraid that I am not satisfied on balance that the Claimant did act in good faith. Miss Sheerin suggests the Respondent ‘performed’ the ‘actual salary’ line of the contract by paying him at the full time rate. But that is not correct. The pay information sent to the Claimant on his payslip each month he was paid showed the Respondent was not performing her contended-for construction. The payslip information stated he was working full-time not part-time. He was being paid for working 37.5 hours a week not for 15 hours a week and this was obvious from his payslips. The Claimant protestation that he did not realise he was being overpaid with this in mind has appeared to me at best wilful blindness, and in fact I have found that he more than likely did know he was being overpaid. As Miss Whiteley submitted pay and hours are the basic matters we all look at in employment. I would have had to find the Claimant had been naïve in the extreme for him to have accepted this money in good faith. I do not consider that he was. I have found he likely knew he was being overpaid: a simple glance at the clear parts of his payroll would have shown him that (that he was being paid for full-time hours when he knew he was working part-time hours); knowledge of the kind of money he earned as a bus driver on 2 days a week would have alerted him to the fact he was earning gross around £1100 gross more on a basic month than he expected – that is an enormous difference, a noticeable difference; plus he had the likely budgeting discussions with his wife. He has not satisfied me on balance that he acted in good faith in spending this money.[111]Second, Miss Sheerin argues that the deductions were not ‘appropriate amendments’ because they had not been agreed with the Claimant and cause him ‘financial strain’ at a time his wife was on maternity leave and receiving maternity pay.[112]First, this interpretation disregards the far wider authorisation given in clause 14.1 ‘any amount’ from ‘any payment or final payment of wages’. It seems to me to make sense of clause 4 and clause 14.1 as a whole then ‘appropriate amendments’ ‘to recover’ any overpaid sum must be limited to the size of the overpayment.[113]Even if I am wrong about this interpretation of ‘appropriate’, I do not agree with the Claimant that these deductions were inappropriate. The Claimant had offered £150 a month albeit included in an offer of overall settlement. But from this the Respondent could have reasonably concluded that it was an ‘appropriate’ amendment because it was one he offered to pay. Further, as Mr Dawson points out, the deduction was gross and nearer to £100 net that the Claimant has later requested. Further, there was no need to further agree it with the Claimant: clauses 4 and 14 of the contract were the agreement.[114]For all of these reasons, even if section 13 applied and not section 14, I conclude the contract authorised the deduction and I find that it was not unlawful. Deduction of all of Final Wages[115]Again, this deduction is excluded from the provisions of section 13 of the Act by section 14. But that is something I did not deal with in my oral reasons, which found that the deduction of the whole of the final wage was authorised by the contract? I consider it was authorised by clauses 14.1 and 14.3. Here the contract allowed the deduction of ‘any amount’ and this was the Respondent’s last chance, without taking action, to recover what was still only a modest sum from the whole debt. The contract authorised a deduction of the whole of the last wages. I do not regard it to be inappropriate given the Claimant had chosen to leave and that he had stated he still wanted to pay off half of the overpayment. Issue 4 Fundamental Breach[116]I will look at each contended-for breach individually and then cumulatively. Issue 4a altering or reducing income.[117]For the reasons set out above this was not a breach of contract. The Respondent reverted to paying the Claimant the contractual pay after mistakenly paying him more than he was entitled to. They then made deductions to his pay that were contractually authorised. Issue 4b placing under financial constraint ‘contrary to the terms agreed by the Claimant’[118]This is another version of issue 4a. I have found that the reduction meant the Claimant was paid his contractual salary. If that placed him under financial constraint it was not a breach of contract to do so.[119]As for whether it was a breach of the implied term. The Claimant had offered £150 for 2 years and only 3 months of deductions were made. In any event £150 gross was near to £100 net that the Claimant was ultimately prepared to accept. Therefore given his offer and the modesty of the amount I do not consider that this action was likely to seriously damage trust and confidence. In any event the Respondent had reasonable and proper cause for it because the Claimant had been paid 60% more than he was entitled to receive for 1 year and 10 months and it was both reasonable and proper to recover these sums. All the more so given this was public money.[120]A new agreement did not need to be reached for deductions to be made as I have set out above the contract was the agreement. Issue 4c alleged unlawful deductions[121]I have found that the deductions were not unlawful they were authorised under the contract. Issue 4d failure to agree a reasonable or fair deduction for repaying sums.[122]It is correct that there was no further agreement on the amount of the deductions. The contract was the agreement in relation to them and therefore no such agreement was expressly required.[123]In relation to whether the Respondent was in breach of the implied term on this point. The Respondent did seek to find a method of repayment that did not place the Claimant under undue strain. In the negotiation the Claimant had offered £150 and the Respondent did not deduct more than this except after his resignation. It is important to note the Respondent had reduced this from £250.[124]While there was an internal discussion within the Respondent about agreeing £100 per month, this was not agreed with the Claimant. Further £150 gross was nearer to £100 net.[125]I consider the deduction to be objectively reasonable and fair because it was affordable with a struggle, and, given the background that the Claimant had been unjustly enriched to the tune of around £16K net, it was perfectly fair. It was not therefore likely to destroy trust and confidence.[126]In any event, the Respondent had reasonable and proper cause for going ahead without another agreement. That is because the contract was the express agreement for deductions.[127]I take into account too that stress the Claimant was under was caused by two things: the Respondent mistake in paying him and his wilful blindness or lack of good faith in accepting the overpayment for so long. Issue 4e Failure to discuss or follow through the proposal made by them for the Claimant to work additional hours.[128]This question had been raised by the Respondent. The issue was still being discussed with Claimant when he resigned. The proposal was only made in May 2022 and the Claimant only asked one question about it. Mrs Niner was pursuing it internally. The Claimant could have just offered additional hours (Mrs Niner says they were always available.) The Claimant’s last approach had been to seek to agree hours in the context of a final settlement. The Respondent was not obliged contractually or according to trust and confidence to meet this demand.[129]In any event, in my judgment, the delay in reaching any plan about extra hours was not so extensive as to be unreasonable or undermining of trust and confidence. The Claimant resigned before it could be resolved. Issue 4f failing to consider the Claimant’s circumstances having spent money in good faith and now having to adjust to 50% pay with a new born baby and wife on maternity pay[130]I have dealt with the premise of this issue above. There is insufficient evidence before me that the Claimant had spent all the money. All he has said is that he budgeted according to income. It does not follow from this that he spent all of his income. Nor has he persuaded me that, if he had spent all the money, he had done so in good faith, as I have already explained.[131]Further my findings of fact show the Respondent did consider the Claimant’s position – Mr Ivory expressed the need to do so; the Respondent’s director was going to the executive to see if part of the overpayment could be waived; it reduced its original suggestion of a deduction of £250 per month; it was the Respondent who suggested working off some of the debt by working extra hours. All of these steps showed they were considering the Claimant’s position, while balancing the need to recoup public funds paid to the Claimant incorrectly. This behaviour in my judgment was not likely to seriously damage trust and confidence. Cumulatively[132]I have decided that there were no separate breaches of the contract or the implied term.[133]Do any of the issues, taken together suggest a breach of the implied term. I judge not. While the process of discussion could have been quicker, the Respondent was not obliged to agree with the Claimant’s proposals for final settlement. It could have simply ignored the Claimant and relied on the contractual provisions but it did not do so. It understood there was a negotiation to be had and this was happening. The Claimant criticises the Respondent’s approach, which was to prioritise, he says, recoupment. That may well be correct but they did have in mind his situation and took it into account in the ways I have identified above. This is plainly shown by the reduction in the deductions and the attention paid to the problem by senior managers. Mr Ivory and Ms Qureshi dealt with the matter appropriately. Sensitivity is not the test here. I do not consider the Respondent’s conduct as a whole was likely, objectively to destroy or damage the relationship of trust and confidence.[134]Even if it were, I have identified the good reason the Respondent had for its conduct: the need to see to recoup public money paid by mistake.[135]Thus, there was no fundamental breach of contract and the unfair dismissal claim fails. Issue 2 Was the resignation, at least in part, in response to the alleged breaches?[136]In any event, I am absolutely clear that the Claimant did not resign in response to any of the matters set out in issue 4. He resigned, as he had always planned to do, when his wife went back from maternity leave so that he worked on the bank. He had been advised long before this issue that to work on the bank would require his resignation from employment. He had good reasons for doing so: to work flexibly and offer child care.[137]This was the reason he gave in his resignation letter, which supports my conclusion even if it does not demand it. And while he had indicated earlier that the failure to agree a settlement by reducing the tax and NI would force him to consider getting alternative employment, that failure however has not been identified as a breach.[138]For that reason also the unfair constructive dismissal claim would have failed in any event. Affirmation[139]If I am wrong and the reduction in salary was a breach of contract. I would have found that, by working for January 2022-July 2022, knowing that his wages had been reduced from the end December 2021, the Claimant had affirmed that breach. By coming into work and performing the contract with no protest, knowing that he would be paid only 40% of what he had previously been paid, was plainly unambiguous conduct calling for performance of the contract and affirming any breach.[140]The Claimant says he had not read his contract and that is why he did not protest. That doesn’t help him. He had a copy of the contract in his inbox. He did not look for it. Breach of contract (notice pay)[141]The Claimant resigned and gave contractual notice on 22 June 2022. The effective date of termination was 22 July 2022. He was not paid his final pay. I have already decided that this was a lawful deduction of wages and contractually authorised. He was not therefore entitled to this notice pay.