Ms A Stefaniak v Parvez Beauty Ltd (T/a Colaz Advanced Aesthetics Clinic): 3303886/2023 and 3308227/2023

EMPLOYMENT TRIBUNALS

Case No 3303886/2023, 3308227/2023

Between

Ms A StefaniakClaimant

Parvez Beauty Ltd (T/a Colaz Advanced Aesthetics Clinic)Respondent

Before

Judge Bartlett

Mr Ohringer for claimant

Ms Barlay for respondent

Date 17 April 2025

JUDGMENT

[1]The claimant’s claim in respect of Holiday Pay succeeds. The Judgement has been made by consent following the concession in the ET3 and confirmed in the Case Management Hearing on 12 February 2024 by the respondent to this effect.

[2]The respondent is ordered to pay the claimant the amount of £603 in respect of the Holiday Pay part of her claim. Approved by Judge Bartlett

REASONS

[1]The Claimant, Agnieszka Stefaniak, was employed by the Respondent, Parvez Beauty Ltd, from 24 August 2022 until she was dismissed on 13 November 2022. The Claimant claims unauthorised deductions from her wages in respect of her first two weeks’ pay, which were “withheld” by the Respondent, and pay for her final day of employment on 6 November 2022. She also complains that she was dismissed in breach of contract because she was not given any notice.

[2]The Respondent brings an employer’s contract claim to recover sums it says are repayable by the Claimant under the terms of a training agreement.

[3]Both claims were heard together, having a common factual background.

[4]At the commencement of the hearing, the Tribunal refused the Respondent’s application to postpone the hearing under Rule 32 of the Employment Tribunal Procedure Rules 2024. The application was made on the morning of the hearing. The Claimant did not agree to the postponement. The postponement was not necessitated by act or omission of the Claimant or Tribunal. There were no exceptional circumstances: the Respondent failed to provide adequate medical evidence that its witness, Alaiyka Parvez, was not fit to give evidence. Ms Parvez did give evidence, with adjustments to take account of her pregnancy. Issues before the Tribunal

[5]At the beginning of the hearing, the parties confirmed that the issues were as identified by Employment Judge Bartlett at a Preliminary Hearing on 12 February 2025. These were:(a) It was recorded as agreed that the Respondent held “in hand” £560 representing two weeks’ wages, which it did not return to the Claimant when her employment terminated.

(b) It was recorded as agreed that the Claimant was not paid for 6 November 2022. The Claimant said that she should be paid £80. The Respondent said that she is owed £71.70 because she did not work her full 8-hour shift.

(c) Were these unauthorised deductions? The Respondent said that the Claimant had previously signified her agreement to the deductions in writing, in the form of a training agreement, which she signed on 3 August 2022 (“the Training Agreement”). The Claimant admitted that she signed the agreement but said she was not provided with a copy. There was a dispute as to whether the Training Agreement required the Claimant to repay the Respondent for a training course she completed prior to her employment commencing. In particular, the Claimant said (i) On the face of the Training Agreement, it did not require the Claimant to repay the costs claimed by the Respondent; Case No: 3303886/2023 3308227/2023 (ii) If it did, the Training Agreement was void pursuant to s49(1) National Minimum Wage Act 1998; and (iii) The Training Agreement was unenforceable as an unlawful penalty and restraint of trade.

(d) It was recorded as agreed that the Claimant was dismissed without notice.

(e) There was a dispute about the amount of contractual notice to which the Claimant was entitled. The Claimant relied on her written job offer, which provided for 6 weeks’ notice. The Respondent relied on a written contract of employment, which provided for 1 week’s notice within a 6-month probationary period. The Claimant denied receipt of that contract during her employment.

(f) Whatever the contractual notice, the Respondent said that it was entitled to terminate the Claimant's employment without notice because she had committed gross misconduct.

(g) Was the Respondent entitled to recover the cost of the Claimant’s training from her pursuant to the Training Agreement and if so in what amount?

[6]In fact, the Claimant did not pursue the argument that the Training Agreement was an unlawful penalty.

The Evidence

[7]I heard sworn evidence from the Claimant and from Amina Adam and Alaiyka Parvez for the Respondent and considered documents in the bundle to which the parties referred.

The law

[8]Section 13 Employment Rights Act 1996 provides that(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 Case No: 3303886/2023 3308227/2023 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. …

[9]Section 23 provides that (1) A worker may present a complaint to an employment tribunal (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)) …

[10]Section 24 provides that (1) Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer (a) in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13, …

[11]Section 49(1) National Minimum Wage Act 1998 provides that Any provision in any agreement (whether a worker’s contract or not) is void in so far as it purports— (a)to exclude or limit the operation of any provision of this Act;

[12]At the relevant time, the National Minimum Wage was £9.50 per hour.

[13]A restraint of trade in a contract of employment is unenforceable unless the employer can show that it is no wider than necessary to protect the employer’s legitimate interests. The Claimant could not identify any case law that suggests that an agreement of the nature of the Training Agreement is a restraint of trade. Instead, the Claimant relied by analogy on X-R Touring LLP v Javor

[2024] EWHC 562 (KB)

where a clause requiring the employee to pay his former employer commission earned post-employment was found to be an unlawful restraint of trade.

[14]An employer is entitled to dismiss an employee without notice if the employee commits a repudiatory breach. In most cases, as is identified in the issues above, that repudiatory breach is said to be an act of gross misconduct. Whether an employee has committed gross misconduct is a question of fact for the court, or in this case Tribunal, to determine -Adesokan v Sainsbury’s Supermarkets Ltd

[2017] ICR 590

. Case No: 3303886/2023 3308227/2023 Findings of Fact Training Agreement

Findings of Fact

[15]The Claimant was offered employment with the Respondent by email on 15 July 2022. That email attached a document titled "Agnieszka Job Offer”. The key parts of that document provide that the Claimant would work 28 hours per week and be paid £10 per hour, that she would start after she had successfully completed training and that the notice period would be 6 weeks, with an additional week after each year. The document also referenced a probationary period of 6 months but did not suggest that the notice period was varied during that probationary period. It also said that “we hold back 2 weeks wages which is payable if you leave giving us 6 weeks’ notice”.

[16]The Claimant attended her training on 3, 4 and 5 August 2022. On her first day, she was asked to sign a training agreement. She was not given a copy of what she had signed.

[17]There were two copies of a training agreement contained within the bundle. The terms are similar but they differ in an important respect. Ms Parvez said that all contracts were updated when the Respondent changed providers of HR advice. She thought this might explain the difference. She was not present on the day the Claimant was presented with and signed the document so could not say which version was signed, though asserted that it was possible that she signed both.

[18]The Claimant cannot remember much about the training agreement. She said it was two or three pages long.

[19]It is more likely that the training agreement the Claimant signed is that contained at pages 126-127 of the bundle. This is because the signature page is in the same font as the operative terms. The version at pages 128-130 of the bundle has larger text in a different font but what appears to be an identical signature page to that at page 127, i.e. in the same font shown on page 126. Further, the orientation of pages 126 and 127 give the impression of a hard copy document that has been scanned at a slight angle. The Claimant of course signed a hard copy document. In contrast, pages 128 and 129 are oriented vertically but 130 follows the same pattern as pages 126 and 127.

[20]It is not likely that the Claimant signed both agreements on 3 August 2022. The second agreement appears to be retrospective - referring to training that the Respondent “has paid for” and contains the words “REMINDER (stated in previous consent)”. This would make no sense if the Claimant was being asked to sign the two documents at the same time before her training has commenced.

[21]I therefore find as a fact that the Claimant signed a training agreement in the terms contained at pages 126 and 127.

[22]The key terms of that agreement provide that: Case No: 3303886/2023 3308227/2023(a) The Respondent may from time to time pay for the Claimant to attend training courses;

(b) If the Claimant’s employment ends after the Respondent has incurred that cost, the Claimant will be liable to repay some or all of the fees, expenses and other costs associated with such training courses;

(c) If the Claimant ceases employment within 12 months of completing the training course, 100% of the costs shall be repaid; and

(d) The Claimant shall not be required to repay any training costs if the Respondent terminates employment except where it is entitled to and did terminate employment summarily. Contract

[23]The Claimant gave clear compelling evidence that she was not given a contract of employment. Ms Parvez did not suggest that she herself had given the Claimant a contract but suggested that that she “would have” been given a contract and “would have” been asked to sign it before she started work. The only contract before me was signed by Ms Parvez but not the Claimant. The Respondent did not comply with the Tribunal’s order to send the original document purportedly signed by the Claimant to the Tribunal to consider at the hearing.

[24]I therefore find as a fact that the Claimant was not given the contract of employment contained in the bundle during the time she was employed. The terms of her employment were those contained within the offer letter. Dismissal

[25]The Respondent’s records show that the Claimant clocked in at 11:20:45 on 26 October 2022 and 10:51:54 on 27 October 2022, i.e. she was late by 1 hour 20 minutes and 51 minutes respectively.

[26]At 12:41 on 2 November 2022, the Claimant contacted her manager, Navjot Dhillon, to say that she was unwell, saying “I think I won’t make it today”. Ms Dhillon replied to say that the Claimant should have messaged at 9am and pointed out that this was the second time she had been informed only hours before the Claimant was due to come in that she could not attend work. Ms Dhillon’s message ended “please be mindful of this in the future”.

[27]At 09:56 on 3 November 2022, the Claimant messaged Ms Dhillon to say that she was still unwell. Ms Dhillon replied “this is unacceptable this is the third time you are notifying me if [sic] a sickness post 9am – when I’ve clearly mentioned”.

[28]The Respondent’s records show that the Claimant clocked in at 10:30:31 on 6 November 2022 and clocked out at 17:48:25. Her hours are recorded as 7 hours 17 minutes as opposed to her scheduled 8-hour shift due to commence at 10am.

[29]At 09:30 on 10 November 2022, the Claimant messaged Ms Dhillon to say “I’m not getting any transport. We tried even Uber is cancelling. What should I do? I cannot come. Otherwise at later hour?”. The difficulty was that there was a tube strike that day. Ms Dhillon replied to say that the Claimant had Case No: 3303886/2023 3308227/2023 a client booked at 10am so needed to find a way. She suggested she try Uber or Bolt. There was then a series of messages about options before Ms Dhillon asked if the Claimant could get public transport and arrive by 11:30. The Claimant replied “I’m not coming today. Buses are packed”.

[30]The Claimant attended work on 13 November 2022 when she was handed a letter confirming her dismissal. That letter confirms that the Claimant was dismissed “due to the high levels of underperformance”. It went on to list various issues including punctuality and attendance, poor sales, failing to fill out paperwork and not following instructions regarding cleaning.

[31]Ms Parvez’s Witness Statement confirmed that the reason for the dismissal was the list of problems identified in the dismissal letter. In her oral evidence, it was clear that the recent problems around punctuality and attendance - as well as communication when the Claimant was not able to attend - were forefront in her mind.

[32]The Claimant was prevented from giving the Respondent 6 weeks' notice because the Respondent summarily dismissed her.

Conclusions

[33]The Claimant did not commit gross misconduct. The issues described in the dismissal letter are properly categorised by Ms Parvez as underperformance. The Claimant’s failure to follow a management instruction to notify management promptly when she is sick could be classed as misconduct, but it is not gross misconduct. Equally, the Claimant could have made more effort to get to work on the day of the tube strike but again this is not gross misconduct.

[34]It follows therefore that the Respondent was not entitled to dismiss the Claimant summarily.

[35]Under the terms of the Training Agreement signed by the Claimant, i.e. the document appearing at pages 126 and 127, the Claimant was not required to repay training costs if the Respondent terminated her employment, except where it was entitled to terminate employment summarily. It was not.

[36]It follows therefore that the Respondent was not entitled to rely on the Training Agreement to make deductions from the Claimant’s wages. I do not need to consider whether the Training Agreement was void or unenforceable.

[37]The Claimant did not work her full 8-hour shift on 6 November 2022. She worked 7 hours 17 minutes and was therefore entitled to be paid £71.70. She was not. This was an unlawful deduction.

[38]The Claimant was prevented from giving 6 weeks' notice by the Respondent’s summary termination of her employment. The Respondent was not therefore entitled to retain the two weeks’ pay - £560 - “held back”. This was an unlawful deduction. Case No: 3303886/2023 3308227/2023

[39]The Respondent terminated the Claimant’s employment in breach of the contractual obligation to provide 6 weeks’ notice. The Claimant was entitled to be paid £1680 for her notice period.

[40]For the same reason that the Respondent was not entitled to rely on the Training Agreement to make deductions from the Claimant’s wages, it is not entitled to recover sums from the Claimant under that Training Agreement. Approved By