Miss J Wills v Eleven Plus Exams Tuition Ltd: 3311337/2023
EMPLOYMENT TRIBUNALS
Case No 3311337/2023
Between
Miss J WillsClaimantEleven Plus Exams Tuition LtdRespondent
Before
: Employment Judge Hyams, sitting aloneIn person for claimantDate 28 February 2025
JUDGMENT
[1]The respondent owes the claimant four weeks’ notice pay, in the sum of £2,071.32 gross, and unpaid salary of £129.40, i.e. a total of £2,200.72, from which national insurance contributions and income tax will be deductible under the the Income Tax (Pay As You Earn) Regulations 2003.[2]The claim for a week’s pay because of the failure to give the claimant a reference does not succeed and is dismissed.
REASONS
[1]The claimant was employed by the respondent as a Reasoning Teacher and Online Content Creator as from 10 April 2022. Originally, she claimed disability discrimination in addition to unpaid wages and damages for breach of contract. The claims were in time and there was a valid early conciliation certificate in existence. The claim of disability discrimination was, however, withdrawn and dismissed on its withdrawal by Employment Judge (“EJ”) M Warren after a preliminary hearing which he conducted on 15 April 2024. EJ M Warren then listed a 3-hour hearing to take place on 7 October 2024 to determine the claims for unpaid wages and damages for breach of contract. I conducted that hearing.[2]The record of the hearing of 15 April 2024 was at pages C117-C120 of the bundle compiled by the respondent for the hearing of 7 October 2024. Any reference below to a page is, unless otherwise stated, to a page of that bundle.
The issues
[3]The issues in the claims for unpaid wages and damages for breach of contract were helpfully stated by EJ M Warren in paragraph 7 on page C118, as follows. “In discussion with the parties I identify the issues as follows:- 7.1. Miss Wills says that she gave eight weeks’ notice in accordance with her contract on 22 June 2023 which was to expire on 17 August 2023. She says that the Respondent unilaterally and in breach of contract reduced the notice period to four weeks and paid her to 20 July 2023. The Respondent says that this was by agreement. 7.2. Miss Wills says that in her final pay she was short by a day’s pay amounting to £103.85. Ms Lakhani told me that she had not had the opportunity to check this and confirm that if there has been an error, the shortfall will be reimbursed. 7.3. Miss Wills claims a week’s pay at the applicable rate in her new employment, £620 because, she says, her new employment was delayed by a week because the Respondent failed to provide a reference, (contrary to assurances Ms Lakhani had given previously). Ms Lakhani says that whilst initially assurances had been given about the provision of references, subsequently an investigation had revealed dishonesty by Ms Wills and that the provision of a reference would not therefore have been useful for her, (Ms Wills). I explained to Miss Wills that there is no legal obligation to provide a reference and I doubted that there was any legal basis for this aspect of her case, although at Case Management Preliminary Hearing I am not empowered to do anything about it.” What happened at and after the hearing of 7 October 2024[4]There was insufficient time to complete the hearing of 7 October 2024, and I therefore adjourned it to 11 December 2024 with a view to completing the hearing of the evidence and hearing submissions. That too was insufficient in that there was not enough time to hear submissions. I therefore on 11 December 2024 gave directions for the exchange of written submissions and an opportunity to respond to the other party’s submissions. The date for the exchange of written submissions was agreed with the parties and was 22 January 2025. The date for a written response to the other party’s submissions was agreed to be 12 February 2025.[5]After both of the hearings of 7 October 2024 and 11 December 2024, I wrote a detailed record of the hearing and caused it to be sent to the parties, so that they knew precisely what I thought they needed to consider and address in their evidence and submissions. Both parties sent me written submissions by 22 January 2025. Only the respondent sent submissions in response. I took into account all of those submissions in arriving at the conclusions stated in these reasons. The evidence which I heard[6]I heard oral evidence from the claimant and on behalf of the respondent from Ms Lakhani on 7 October 2024 and from Mr Niruban Rajendram on 11 December 2024.[7]There were before me, in addition to the documents in the bundle prepared for the hearing of 7 October 2024, documents in further bundles prepared by both parties without the involvement of the other. I refer below to all of the documents before me which I found to be of particular importance. I do not refer below to every document or all aspects of the evidence before me. Nor do I refer to every contention advanced to me by way of argument or submissions. I refer only to those documents and submissions which were of particular importance.[8]I now set out my findings of fact. They all relate to what happened at the end of the claimant’s employment. The facts
Introduction
[9]The claimant’s witness statement was at B50. So far as relevant, in regard to the termination of her employment, this was said in it. “I handed in my letter of resignation on the 22nd of June 2023 and gave my last working day as the 17th of August 2023 (8 weeks’ notice as per my contract). On the 7th of July 2023 the respondent offered to shorten my notice period to 4 weeks instead of the 8 weeks I had given. I declined this offer verbally and asked for all the information to be put into an email so that I could respond in writing. There were messages over Slack (the messaging app used by the company) in the days to follow discussing the situation so that I could better understand what would be in the email. I again stated on the 11th of July 2023 that I wanted to work up until my last day, in response it was implied that if I refused to accept a shorting of my notice period, I would instead lose my job. I received the email at 00:16 on the 12th of July 2023 stating that I had agreed to shorten my notice and that I was not required to return to work at all. It also stated that I would be paid up to the 20th of July 2023. Since I only read the email that morning, I asked if I was still to go into work on that day to finish up the last few tasks I was busy with and collect the personal belongings I had left at the office. I was told not to come in at all and that they would arrange when I could collect my personal belongings. Due to the above reasons, I am owed £2250.”[10]That passage showed that the starting point evidentially was the claimant’s resignation. The documentary evidence was of particular importance here and I therefore now refer to the relevant documents, for the most part in chronological order. The claimant’s resignation email[11]The claimant resigned via the email of 22 June 2023 at D124, and after stating that she was giving notice of her resignation and the reasons for that resignation (into which it is not necessary to go here except to say that the claimant had stated a grievance in respect of the conduct of her line manager), the claimant said that her notice period as stated in her contract of employment was 8 weeks and that as a result her “final day of work” would be “on 17/08/2023”.[12]On the same day, in the document at E179, the claimant wrote this: “I first asked for the grievance to be dropped on Tuesday the 13th of June via Slack. You told me I could not do that as you ‘have already escalated this to a formal complaints process [and] have to comply with [your] duties as an employer.’ You ‘think its best if we now follow through with the complaint as [you] do not want a repeat incident later on causing [me] distress as well as disruption to the operation of the reasoning department.’ In the meeting on Tuesday (20/06/2023) I again stated that I would like the grievance to be dropped as there is no solution and instead, I would change my behaviour. Again, you informed me that I was not allowed to drop the grievance as it ‘undermines my complaint’ and comes across as ‘malicious’. I would like you to discontinue the grievance.”[13]Shortly afterwards, on the same day, Ms Lakhani on behalf of the respondent sent the email at E180, confirming that the grievance was “now treated as withdrawn and that no further action [would] be taken in relation to it”.[14]However, at 20:23 on the same day, Ms Lakhani sent the email at E182 in which she said that the respondent had decided for the reasons given in that email that “it would not be right for [the respondent] to leave this matter unconcluded”, and therefore that the respondent was going to determine the grievance.[15]On 28 June 2023, the claimant asked in the email at E183 whether Ms Lakhani had “had the chance to confirm” the claimant’s “last working day and any holiday entitlement available to [her]”.[16]On 30 June 2023, in the email at E185, which was sent at 16:54, Ms Lakhani said this to the claimant. “Having considered all the evidence you have raised and having interviewed your colleagues, the outcome of the grievance you raised will result in the termination of your employment. You have said you do not wish to participate in the grievance process and therefore I have not issued the findings to you and given your resignation this may no longer be necessary. A termination by me would supersede your notice of resignation and bring forward your termination date. I will look to proceed with this option in the absence of a compromise with you.”[17]In her witness statement, Ms Lakhani said this (at B54). “15. By 6 July I had come to a decision that it was probably best to let the Claimant go sooner either by serving her with a termination notice or reaching an agreement with her to bring forward her resignation date with a view to her not having to come into work further beyond a few days to handover any work if required. I spoke to Mr Tsang to make sure there was no critical work the Claimant was in the middle of doing and he confirmed that no handover was required. Therefore on the following day, Friday, 7 July 2023, I proposed a compromise to the Claimant that her notice period be reduced to 4 weeks, thus ending on 20 July, and that if this was acceptable to her given her mental state indicating she was not happy to be at work, then I would allow her the final week of work as paid gardening leave. I thought that perhaps that she provided 8-weeks’ notice only because that is what she felt she had to give, however, the 8-week notice requirement was only applicable during the delivery of course lessons when the Claimant was teaching. The contract only provides for 4-weeks’ notice when the courses have finished. At the time of her resignation, the course had been completed and the students were several weeks into sitting for their mock exams which would continue for the summer. The one week of paid leave was offered as a gesture to allow the Claimant time to apply for new jobs. 16. The Claimant seemed content with my proposal and agreed to the terms and asked me to work out her holiday entitlement. I said I would confirm in writing on the following Tuesday which was the next business working day since on Saturday all staff are off-site.”[18]There were no “messages over Slack” between the claimant and Ms Lakhani after 7 July 2023 which gave any indication about what had been discussed by them on that day.[19]The messages between them on that day and on 11 July 2023 were at F234- F238. I saw that at the top of F234 there was a message from the claimant to Ms Lakhani which the claimant had sent at 14:30 on 6 July 2023. It was in the following terms. “Hi. I'm not sure if you've seen my email? Since it has only been half a year, I know I have acquired about half the amount of leave entitled to me in the year. Based on that I should have about 7 days of holiday left. I would like to take it at the end of my employment. My last official day of employment is the 17th of August, however my last working day will be Tuesday the 8th of August. Would you please be able to confirm my last working day.”[20]Ms Lakhani responded on the next day (7 July 2023) at 11:49 (at F234): “Sorry, I must have missed your message. I will check your holidays.” She then wrote at 12:07 (also on F234): “Also with regard to your mental well-being I would not require you to give 8 weeks but 4 weeks since we have completed the tuition since end of May. 8 weeks is only required during the main term time when we are teaching”.[21]On the next page (F235), there was a further exchange, all of which took place on 11 July 2023. In it, the claimant said that she did not want to be considered for another role with the respondent. Ms Lakhani then said that she had been told by “Jenny” that the claimant had “asked her on slack of she needed further staff” and that she, Ms Lakhani, would be “happy to consider” the claimant “at a later date” if the claimant had not by then found other work and wanted to keep her options open. The claimant responded at 17:25: “I asked Jenny before we spoke last week. You informed that that [sic] if I hadn’t resigned I would be fired anyway. I do not want to work for the company anymore. Thank you for the offer.”[22]At 17:40, after a further exchange during which the claimant said that she had “genuinely loved this job and ... wanted to stay [in it] and travel however long it was to get [to work]”, Ms Lakhani wrote this (at page F236): “I believe its probably best you now move on as soon as possible and I wish you the best in finding alternative job. You can provide my name as a reference.”[23]The claimant replied a minute later: “Thank you. So, is my last day the 20th of July? And how much holiday do I have left?”[24]Six minutes later, Ms Lakhani replied (and this was the final message on page F236): “I will confirm in an email, but yes that would be your last day.”[25]In the next message, at the top of page F237, the claimant replied: “Okay thank you.”[26]Ms Lakhani then responded: “The July pay will be as per usual in early August.” The claimant’s response to that was simply this: “I understand”.[27]The exchange which followed was also all material. It was the whole of the rest of the exchange, so it was at pages F237-F238, and was this. “[Ms Lakhani] 17:52 I feel that considering you are feeling isolated you do not need to attend work for the remainder of the period and you will still be paid up to that date. 17:54 I feel it is better your time is freed up so you can focus on finding a new job. 17:54 I will confirm this in an email later today [Claimant] 17:54 Will it count as holiday days or will it be gardening leave? [Ms Lakhani] 17:55 I do not know that yet but either way it’s a bonus to you as I could require you to work but am not [Claimant] 17:57 Its not a bonus because if I am not getting paid and being forced to take holiday when I have made it clear that I want to work up until the last day and get paid the rest of my holiday on top of that. I am still being professional while at work and I am just doing everything that I am told. I am not affecting the atmosphere up here and I don’t even talk to anyone. [Ms Lakhani] 18:07 I think you have to consider the implications if I decided to proceed and formalise the outcome of the grievance. If you interpret everything I do was a negative it makes it impossible for me to reach an amicable arrangement. 18:09 My final decision will be confirmed later after I have discussed with Ilesh. 18:11 Please note that an employer can ask employees to utilise their holiday during the notice period 18:12 Please see me on your way out and confirm your decision. You agreed on the 20th last week, but I did not have to give you this choice, I could just have terminated.”[28]The detailed grounds of resistance to the claim were at A24-A32. In paragraphs 8 and 9 on page A27, this was said, after reference was made to part of the above sequence of Slack messages. “8. Subsequently, Ms. Lakhani had a further conversation with the Claimant prior to her leaving work that day (11th July) where the same was discussed. The Claimant seemed initially to have changed her mind and objected to loosing notice pay for a further 4 weeks but readily conceded when she was reminded that if she did want to work the full 8 weeks she would have to carry out the work she had earlier agreed to do which had been assigned by Ms Lakhani. 9. The agreed termination date and paid-leave for the last week, was then confirmed in writing by Ms Lakhani on the evening of 12th July 2023.”[29]The “confirm[ation] in writing” to which paragraph 9 in that extract referred was in fact sent early in the morning of 12 July 2023, and had been intended by Ms Lakhani (she told me, and I accepted) to be sent in the evening of 11 July 2023. The email was at pages E186-E187. So far as material, this was said in it. ‘I refer to your resignation letter dated 22nd June 2023 giving 8 week’s notice of termination. It was agreed between us last week, following my offer to waive the requirement for you to give 8-weeks notice (which is only required during the taught syllabus) that your notice would expire on 20th July so as to provide 4-weeks’ notice. My offer to waive the notice was proposed to alleviate your mental condition which you had indicated in your resignation letters was being negatively affected by the grievance process. It has been brought to my attention that you have asked Jenny whether she needs additional staff. Your message to Jenny which you subsequently deleted on Slack states: “Hey. I was just wondering if you are looking for another person in the English department? I was told by Nita that there was only one place and she doesn’t want to hire anyone else. It’s why I wasn’t allowed to move to English.” The reason you could not move to the English department is that you declined the offer on two separate occasions. An offer to another candidate was made only after you declined. I sent an email on 7th June confirming this to avoid any misunderstanding and you later advised me that you had changed your mind on that very day, but did not inform me as you thought it was too late. If you had informed me around that time, the Company would have been in a position to offer the role to you. The move to the English department would have addressed all your grievances and was in my opinion the best outcome we could have achieved for you. In view of your raising the issue with Jenny, I assumed you may have still been keen to join the English department, given that your resignation letter stated that “since I am unable to transfer to another department, I feel I have no choice but to resign” . Therefore, in a further effort to try and retain you in employment, I requested you to confirm if you still wished to be considered for any further role within the English department or the Company if any position came up. The reason I asked is because there is a possibility of a vacancy arising due the Company deciding only last week to expand its Year 5 tuition course to Friday evenings. We are also considering the same for Year 4. We therefore foresee additional need for staff to ensure sufficient cover for these extra lessons. I am surprised (and disappointed) that you declined interest as I was seeking to assist you in retaining you in your employment especially as you indicated you only resigned because there was no other opportunity. As mentioned, your contribution has been valued and recognised, since you were given a pay rise and the role in the English department is the one you had originally applied for and are more suited to. As you have confirmed you no longer wish to work for the Company, we will not require you to attend for work for the remainder of your notice period. Hopefully, this gesture will enable you to utilise the free time to focus on job applications and interviews. Final Pay and P45 You will receive your normal pay up to the 20th July along with your P45. Having looked at your attendance record there are no holidays due to you. This is because you exceeded your allowance last year and the excess holidays are then deductible from this year’s allowance. I have given the details below.’[30]The claimant did not reply to that that email immediately. She sent an email in response on 25 July 2023, which was at page E188, in which she said this. ‘Thank you for your email of 12th July 2023. I do not accept your offer of paying me my normal pay until 20th July less 2.5 days deducted because I “did not qualify for company sick pay”. I am entitled to be paid my full 8 week notice period. I gave you 8 weeks’ notice, as required by my contract (point 19.1). I did not agree to accept a 4 week notice period. Any shortening of a contractual notice period can only be done with the agreement of both parties. It will constitute a breach of contract and non-payment of wages, if you only pay me until 20th July (as per your email dated 12th July) and fail to pay me the final 4 weeks’ pay that I am owed. You state that you intend to deduct 2.5 days salary from my final pay as I “did not qualify for company sick pay during the first 12 months of employment”. This has never been raised previously. To suggest that an error was made in January, February, and March, and that I received an overpayment of wages, appears to be punitive. I accepted my salary (including contractual sick pay) in good faith and believed that it had been paid correctly. I do not believe that you are entitled to deduct this money from my final salary and that to do so would constitute an unlawful deduction of wages. Please find attached a copy of my resignation letter giving 8 weeks’ notice and a copy of an exchange of messages clarifying that I do not accept a 4 week notice period as evidence. I expect to receive my full salary by the 10th of August (covering the period 1st – 31st July) and half of my salary by the 10th of September (covering the period 1st – 17th August). I’d also like to know when the personal items I left in the office will be returned to me, and if they cannot, why and what has happened to them? I would be grateful if you could respond to this email within 14 working days.’[31]Ms Lakhani’s response was at pages E188-E189. It was dated 16 August 2023. It was in these terms. “Dear Jamie, I refer to your email of 25th July. I proposed the termination date of 20th July on the basis of you having gardening leave from July 12th to July 20th, allowing you to focus on job applications. The specifics were clearly communicated to you and agreed upon. Your disagreement appears to be an afterthought since if you did not agree, then you would have responded immediately and not taken the gardening leave. You had offered to come in to collect your belongings on the 12th July which you would not have done if you were seeking to work your full work notice. Instead, you contacted me after the gardening leave expired. Since no gardening leave was granted beyond 20th July, your nonattendance for work would have been unauthorised. The grievance process had come to an end and you were informed that the outcome was not in your favour and would lead to a dismissal. I proposed not to formalise that dismissal, based on the above and given your resignation. The Slack message is irrelevant (and incomplete) because it was sent prior to my email. If you disputed the contents of my email you should have responded immediately but you chose not to. You have stated that you did not want to have any further participation in the grievance or be notified of anything other than your last date hence I have not sent you any communication relating to your grievance. By taking the gardening leave you have ratified the arrangement we agreed on.”[32]Ms Lakhani’s witness statement said nothing about what was discussed by her and the claimant at the end of the day on 11 July 2023, as described in paragraph 8 of the grounds of resistance, which I have set out in paragraph 28 above.[33]As a result of the above factors, as I said to the parties on 7 October 2024, the key question in relation to the claimant’s claim stated in paragraph 7.1 set out in paragraph 3 above was whether or not the claimant and Ms Lakhani, acting on behalf of the respondent, at any time agreed that the claimant’s employment would end on 20 July 2023 so that she would not receive pay for the period after then.[34]Ms Lakhani pointed to what she had said in a Slack message to a colleague on 7 July 2023 of which there was a copy at page F247 as showing that she had reached an agreement with the claimant to that effect on that day. It was in these terms. “15:21 I’ve had a chat with Jamie saying that outcome of grievance is to terminate on 4 wks notice or she can reduce her notice to 20th July with 7 days paid leave . She’s agreed and more decisive that she doesn’t want to work. I said I would confirm in writing probably by Tuesday since she’s not in until then.”[35]As I indicated on 7 October 2024, that message was evidence that at least Ms Lakhani thought that she had reached agreement with the claimant on 7 July 2023 that the claimant’s employment would be terminating by agreement on 20 July 2023, rather than by Ms Lakhani serving notice on 7 July 2023, which would (given the terms of clause 19.1 of the claimant’s contract of employment, at page G268) have taken effect on 4 August 2023. The benefit to the claimant in agreeing to that shortened period of employment was going to be that the claimant would not have to inform a future employer that she had been dismissed by the respondent as stated in the email of 30 June 2023 at E185 which I have set out in paragraph 16 above.[36]However, Ms Lakhani did not say in that email of 30 June 2023 what the grievance outcome would have been. There was in the email of 15 June 2023 at page E172 from Ms Lakhani to the claimant an indication of the reasons why the claimant’s contract of employment would have been terminated, but it was merely that the claimant had said that she could no longer work with her line manager and that there was no other job to which the claimant could be transferred. That was said in the following, second, paragraph of the email. “Your email is incorrect in terms of Alistair working with you. He has not declined to work with you and has never done so. It is you who has raised the grievance and indicated you cannot work with him so it is a matter for you to decide whether you will maintain this position and see if you can work with him by implementing some guidelines to help with communications. If you are not able to change your position, then the outcome of the grievance will be a termination of your employment given there are no other jobs and you have declined the role in the English Department. Alistair fulfils a key role in the business which you are not able to fulfil and therefore we will have no option but to terminate your employment if you do not wish to carry out your employment duties.”[37]The claimant’s oral explanation to me for not replying to the email of 12 July 2023 at pages E186-E187 of which I have set out the relevant passage in paragraph 29 above until 25 July 2023 (when she sent her email at page E188, which I have set out in paragraph 30 above) was that she wanted to get legal advice before doing so.[38]When giving oral evidence, the claimant said that she had understood that Ms Lakhani had proposed gardening leave for the period from 21 July 2023 to 17 August 2023. Ms Lakhani said to me that that was a new allegation of the claimant, but the claimant pointed out that it was made in the ET1, at page A9, where the claimant said this. “2 weeks after I had submitted my notice, I was informed that I could have only given 4 weeks notice and they wanted to reduce my remaining 6 weeks to 2 weeks. I declined as I didn’t have another job waiting for me yet but I would agree to take gardening leave. They then replied saying if I refused they would finalise the grievance which would certainly result in my contract being terminated. I was then told at midnight not to return to work. After I had collected my personal belongings I received my final payslip on 11/08/23 stating my last working day was 20/07/23 with deductions made for sick pay I was entitled to and excess holiday from the previous holiday year (which I asked to be unpaid at the time)”. The reference[39]At no time after Ms Lakhani sent her Slack message of 11 July 2023 set out in paragraph 22 above to the claimant did the respondent volunteer the information that it was not going to provide a reference for the claimant. The respondent’s position in regard to the reference was stated in paragraphs 13 and 14 of the grounds of resistance, on page A28, which were in the following terms. “13. Upon the Claimant’s resignation, Ms. Lakhani initially agreed to supply a reference, as at that juncture, there was no reason for refusing a reference. However, circumstances had changed by the time Ms Lakhani was approached by an employment agency for a reference. Notably, the Claimant’s grievance had been concluded and was found to have been maliciously motivated and of a vexatious nature. Furthermore, she had also falsely alleged breach of contract by the Respondent and unpaid holiday entitlement (the latter has not claimed in the ET1) in the full knowledge that this was not true. Consequently, Ms. Lakhani felt unable to help the Claimant in providing a reference and informed the Claimant that she could no longer provide a reference. This should have prompted the Claimant to seek an alternative employer as a referee. 14. A minimal reference confirming the start and end date and job title did not suffice for the employment agency as the role the Claimant had applied for required her to work with vulnerable children, young people and their families. In light of the outcome of the grievance, Ms Lakhani felt unable to provide a reference that would have helped her attain the role if she answered the questions honestly. As such, the nonprovision of a reference would not have damaged her prospects in any way.”[40]I was willing to read what was said in the Slack message set out in paragraph 22 above as a statement of willingness to provide a positive reference, but at the time the statement was made, the claimant had not said in relation to what kind of employment she might seek a reference. A factual reference of the sort to which the first sentence of paragraph 14 of the grounds of resistance referred might have sufficed for some employments.[41]The respondent put before me a supplementary bundle for the hearing of 11 December 2024, which had in total (including its index) 26 pages. I refer to it below as “RB”. On 18 August 2023, the claimant wrote this (“RB24”) to Ms Lakhani by email. “Hi You informed me that you would provide me with a reference. I know that you have been contacted regarding this. I would appreciate it if you could fill in the form as soon as possible as it ispreventing me from starting my new job.”[42]Three days later, in the email of 21 August 2023 on the same page, Ms Lakhani wrote this. “Dear Jamie, Please get a reference from another former employer as I am not able to provide one since you have alleged breach of contract and unlawful deduction of wages.” WhatsApp and text messages which were not before me on 7 October 2024 but were before me on 11 December 2024[43]The respondent compiled the bundle for the hearing of 7 October 2024 and some documents which the claimant had asked to be in the bundle were not there. Those documents were put before me by the claimant in preparation for the hearing of 11 December 2024, and they were WhatApp chat messages between her and Mr Collins. The respondent did not challenge the authenticity of the messages, and there was no reason to doubt their authenticity. They were in a 39-page bundle called “Claimant’s Appendix for Adjourned Hearing 11 December 2024” to which I refer below as “the Appendix”. On 7 July 2023 there was a discussion between the claimant and Mr Collins in which the claimant said that it was “not fair to just say I must give 4 weeks” (that was on page 5 of the Appendix), and (on the same page) that she had “asked multiple times for clarification and have planned around 2 months as stated”. Mr Collins suggested in the message sent at 12:15 on page 6 of the Appendix that she wrote this: “I appreciate the offer to shorten my notice period. However, the contract signed by you and me states I need to give 8 weeks’ notice (as my role involves teaching responsibilities). You’ve accepted this resignation, and I would prefer to follow the contract and the dates stated in my letter. Your concern for my mental well-being is appreciated, but I have planned around leaving the company on the (end of contract date), and changes to that would cause me distress, not lessen it.”[44]The claimant had then replied on the same page: “Should I just go talk to her in person?” and Mr Collins had replied: “Maybe but always get a paper trail after the discussion” “So say you’ll send an email summarising what you’ve discussed (list what you’ve discussed and the agreed upon results) Then send her that email”.[45]On the next page, Mr Collins said this: “I’d say the ideal is whatever notice you agree to is to have your holiday paid after the 4 weeks or during the 8”[46]The claimant responded “Yes I agree” after which Mr Collins said:46.1 “Also confirm if it’s garden leave”46.2 “Basically what matters is when they pay you up to”46.3 “Not when you’re needed in the offic3” (sic).[47]On page 8 of the Appendix there was a message from Mr Collins sent at 12:55 on 7 July 2023 stating that his mother (who was “not a lawyer or anything”) was recommending “getting it in writing: 1. When your last paid date is (including holiday) 2. When is your last day in the office 3. Confirmation if you do leave in 2 weeks that the remainder of your notice is gardening leave”[48]He then wrote: “She’s suggesting asking her to draft up the email while you’re in the meeting and to send it while you’re there as well.”[49]On page 9 of the Appendix there was a text message exchange between the claimant and Ms Lakhani, in the following form, the first and the third messages being from Ms Lakhani (sent at 00:35 and 08:48 on 12 July 2023 respectively) and the one between them being from the claimant (sent at 07:33 on the day). “I confirm you should not attend work for the remaining notice period and have emailed you. Sorry for the late email I needed to check all the leave dates.” “Do I come in today just to fetch my stuff or work for the day and just not come in again?” “No you don’t need to come. Your stuff can be collected in another day.” The reasons for seeking a day’s pay and the respondent’s evidence in response to the claim for a day’s pay[50]The claimant’s case that she was owed a day’s pay was stated in the following paragraph of her witness statement at B50: “As stated previously, I was informed that I would be paid up until the 20th of July 2023. The normal working week was Tuesday to Saturday; therefore, I should have been paid for 14 days in July (According to the email I received on the 12th of July 2023.) However, I was only paid for 13 days. Therefore, I am owed £103.85.”[51]There was a detailed response to that claim in paragraphs 38-42 of Ms Lakhani’s witness statement at B59-B60. The claimant did not cross-examine Ms Lakhani on that passage in her witness statement, and it did not occur to me on 7 October 2024 that she might need to do so. I informed the parties in my record of that hearing that if the claimant disagreed with what was said in those paragraphs of Ms Lakhani’s witness statement then she should be prepared to cross-examine Ms Lakhani on them when the hearing was resumed. I also said that if the claimant disagreed with Ms Lakhani’s analysis in paragraphs 38-42 of her witness statement then she would need to tell me why she did so on 11 December 2024 and to point out any documentary evidence which supported her position in that regard. In fact, the date for the resumption of the hearing on 11 December 2024 was agreed to suit the respondent, and the claimant said that she would probably not be able to attend in person but would be represented by Mr Collins, so that he would be speaking for her.[52]There was at pages 11-13 of the Appendix a series of WhatsApp messages between the claimant and Mr Collins from 8 July 2023, showing that she was at work but not doing what she normally did: “just kinda observing someone who’s doing what I normally do”, she said. That was the day for which the respondent was now refusing to pay the claimant.[53]Mr Rajendram’s evidence related to the question whether the claimant had been required to work on 8 July 2023. He referred in paragraphs 9-12 of his witness statement on page B67 to a conversation which he had in person with Ms Lakhani about “whether the Claimant was needed during the summer mocks season and whether I had any opinion on letting the Claimant go sooner than her original notice period which was expiring on 17 August.” He then said this. “13. My conversation with Ms Lakhani took place on the 6th July which was a Thursday. Then the following day, Friday 7th July Ms Lakhani informed me that the Claimant had agreed to an earlier termination date of 20th July and that she would most likely only attend for work for one or two more days. She asked me whether the Claimant was required the next day, since I schedule all staff duties when creating the Saturday timetable. I replied that she was not required and Ms Lakhani asked me to inform the Claimant did not need to attend for work if she did not wish.14. The Claimant was typically quite vocal with me if she had any misunderstandings or concerns, and she would voice her dissatisfaction with any decisions she did not agree with. However, she expressed no objections to the proposals made by Ms Lakhani and was content not to attend work on the 8th of July when I spoke with her, even though she had the option to do so if she wished.15. I confirm that the Claimant did not attend work on Saturday 8th July according to the staff timetable that I prepared for that day.16. The following Tuesday, I arranged for the re-assignment of any routine tasks the Claimant was handling. Since it was her last day of work at the office, she had the entire day to approach me if she had any reservations about the earlier termination date.17. The next day, Ms. Lakhani informed me that she had spoken with the Claimant and confirmed that she would no longer be attending work. The grievance outcome could have led to termination by the company if the Claimant had not agreed to an earlier termination, a possibility the Claimant was aware of due to her unwillingness to work with Mr. Tsang. Therefore, it was not surprising to me that the Claimant agreed to the earlier termination, especially since she had given 8 weeks' notice only because she believed it was the minimum required.18. Since the termination date was mutually agreed, the Claimant has no grounds to seek further notice pay. Furthermore, she had failed to report for work from the 12th July to 17th August in any case.”[54]Ignoring the fact that that passage contained argument as well as assertions of fact (including an assertion to the effect that if the claimant had disagreed with what she had been told by Ms Lakhani about the termination date of 20 July 2023 then she would have raised it with Mr Rajendram), I noted in particular that the claimant was not told by Mr Rajendram that if she did not attend work on Saturday 8 July 2023, she would not be paid for the day. In addition, I noted that Mr Rajendram was told by Ms Lakhani only to say to the claimant that she “did not need to attend for work if she did not wish”.[55]At pages G262-G263 there was this passage in the claimant’s contract of employment under the heading “Hours of Work”. “4.1 Your normal working week will be 5 days per week. Your working week will be variable depending on the needs of the business and you must be flexible. However, your typical week would be Tuesday to Saturday or out of term time it will be Monday to Friday. Weekday hours are normally 9.30am to 6.00pm (with 1 hour for lunch) AND Weekend hours are 8.00am to 6.30pm (with half an hour for lunch). There will be changes to your normal hours during courses and mock exams. As a salaried employee you should expect to work outside of the normal hours to ensure completion of your work when required. 4.2 During certain times in the year, your normal working hours and days will change when you will be expected to work on some Sundays and/or bank holidays or on some weekday evenings. You will normally receive time off in lieu for any such extra days worked. 4.3 The Company reserves the right to alter working hours to meet the needs of the business from time to time.”[56]At RB16-17 there was an exchange between the claimant and Mr Rajendram of 7 July 2023 in which, after the claimant asked at 4:53pm “When am I likely to get things in writing?”, at 5.25pm Mr Rajendram wrote: “glad it’s all agreed now, Fridays are busy days so likely next week. You’re not needed at work tomorrow though.”[57]So, he did not answer the claimant’s question, and merely said that the claimant was “not needed at work” on the next day, which was of course Saturday 8 July 2023.[58]On RB21, at 17:03, Ms Lakhani wrote to Ms Jenny Leonard: “As per earlier conversation, Jamie [i.e. the claimant] has agreed to earlier termination so anticipate she will only be in for 1 more day probably so hopefully the atmosphere will be more positive for the new staff, Ainhoa.” Some relevant legal principles and a discussion The claim for damages for failure to give a reference[59]A claim for damages for breach of contract can be made to an employment tribunal only under article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, SI 1994/1623 (“the 1994 Order”). The claim must so far as relevant be “(a) a claim for damages for breach of a contract of employment or any other contract connected with employment; [or] (b) a claim for a sum due under such a contract.” It must also “[arise or be] outstanding on the termination of the employee’s employment”.[60]The claim for the week’s pay lost as a result of the failure to give a reference for the claimant could succeed here only if there was(1) a contract under which the respondent agreed to give the claimant a reference,(2) that was either the claimant’s contract of employment or a “contract connected with employment”, and(3) the claim either arose or was outstanding on the termination of the claimant’s employment with the respondent.[61]Before there can be a contract under the law of England and Wales, there must be some consideration (i.e. something of financial value) given for the promise which it is claimed became a contractual promise. Here, the assurance that a reference would be given was (see paragraph 22 above) given on 11 July 2023. That assurance could have become contractual only by giving rise to a separate, usually called a collateral, contract: collateral, that is, to the contract of employment. It would then have become a contract “connected with employment” for the purposes of article 3 of the 1994 Order. The consideration, if it were given, for that assumed collateral contract would probably have to be (or at least could be) found in an agreement of the claimant to shorten her notice period (i.e. assuming that such an agreement came into existence). There was nothing else of value that I could see moving from the claimant to the respondent in the circumstances.[62]However, an agreement to give a reference without agreeing to do so by a particular date must, as I understand the matter, be regarded as one to do so within a reasonable period of time. If that is correct then there might here have been a breach of contract only after a reasonable period of time after 11 July 2023. If that is correct then, if the claimant’s contract of employment ended on 20 July 2023, there was probably no breach of contract at that time. If, however, the contract ended on 17 August 2023, then there probably was such a breach at that time. However, if the contract ended on 17 August 2023, then, as far I could see, the claimant did not give any consideration for the promise of the respondent to give a reference. The claim for a day’s pay[63]When an employee is paid a salary, the employer is at least normally obliged to pay the employee whether or not the employee actually works in accordance with his or her contractual obligations, for example by attending work when required to do so. Special considerations apply where the employee takes part in industrial action, but in normal circumstances, the right to pay accrues under section 2 of the Apportionment Act 1870, and it does so every day at the daily rate of 1/365 times the annual salary. The most clear authority for that proposition that I could find was that of the Supreme Court in Hartley v King Edward VI College [2017] UKSC 39, [2017] ICR 774. This issue did not occur to me until I was considering the parties’ submissions, and therefore I did not give them an opportunity to address me on it. I return to this issue in(1) the final sentence of paragraph 74 below and(2) paragraph 75 below. The claim to four weeks’ notice pay[64]The only way in which the respondent could avoid liability to pay the claimant for the final (or second) four-week period of notice here, given that the respondent did not give a counter-notice and thereby dismiss the claimant, was on the basis that there was a binding agreement between the claimant and the respondent that the claimant’s contract of employment would terminate on 20 July 2023. It seemed clear to me that the burden of proving that there was such an agreement lay on the respondent here.[65]Ms Lakhani started her witness statement at B51 with the words: “I am a coowner of Eleven Plus Exams Tuition Ltd with my husband Mr Ilesh Kotecha, who is the Sole Director”. As a result, Ms Lakhani had a direct financial interest in avoiding paying the claimant her full notice pay.[66]That of course did not mean that Ms Lakhani was not telling the truth about what she believed had happened, but there was a risk that she saw something which had not happened, namely that the claimant had agreed to shorten her notice period. However, on the facts, it was in my view clear that the claimant would have agreed to such a shortening of her notice period only if there was a good reason as far as she was concerned to do so. The only possibly good reason for that to occur here was, as I say in paragraph 35 above, that if the claimant had not agreed to such a shortening, then the respondent, via Ms Lakhani, would have given notice to terminate early.[67]The claimant was well aware that it had been suggested by Ms Lakhani that the respondent might dismiss the claimant: that was clear from for example the exchange which I set out in paragraph 21 above. That exchange was dated 11 July 2023 and referred to what was said the previous week, so it was not immediately clear when the suggestion that the claimant might have been “fired” as she put it in the message set out in paragraph 21 above, was made. It was likely that it was on 7 July 2023 (which was a Friday; 11 July 2023 was a Tuesday). However, the passage of the claimant’s witness statement which I have set out in paragraph 9 above showed that the claimant understood on 11 July 2023 that it was implied that “if [she] refused to accept a shorting of [her] notice period, [then she] would instead lose [her] job”. That did not mean, though, that I had to accept that the claimant had agreed to a “shorting” of her notice period.[68]On the day before, i.e. 6 July 2023, at 14:30, so before the claimant had had her WhatsApp message exchange with Mr Collins which I have set out in paragraph 47 above, the claimant sent to Ms Lakhani the slack message which I have set out in paragraph 19 above. In it, the claimant asked for confirmation of her last working day, which on her understanding was going to be “Tuesday the 8th of August”, and said that her “last official day of employment” was going to be “the 17th of August”.[69]The exchange set out in paragraph 27 above pointed both ways: at 18:07 Ms Lakhani referred to it being “impossible ... to reach an amicable arrangement” if the claimant interpreted everything which Ms Lakhani did in a negative way. Ms Lakhani then said that her “final decision” would be “confirmed later” after she had “discussed with Ilesh”. That suggested rather strongly that there was no agreement at that time. As for what the respondent could decide, it appeared to me at this point to be whether to give notice, which could in the circumstances, as I understood them, lawfully have taken effect no sooner than 8 August 2023.[70]In addition, at the bottom of F237, as set out in paragraph 27 above, Ms Lakhani said this (at 18:07 on, I repeat, 11 July 2023): “I think you have to consider the implications if I decided to proceed and formalise the outcome of the grievance.”[71]That too pointed firmly away from there being an agreement in existence at that time, i.e. 18:07 on 11 July 2023. Similarly, the final statement made by Ms Lakhani on F238, which I have set out in paragraph 27 above, which was “Please see me on your way out and confirm your decision. You agreed on the 20th last week, but I did not have to give you this choice, I could just have terminated”, suggested that there was on 11 July 2023 no agreement on the part of the claimant to a shortening of her notice period.[72]The purported agreement of the claimant was stated by Ms Lakhani in her email sent early on 12 July 2023 which I have set out in paragraph 29 above in the following terms: “It was agreed between us last week, following my offer to waive the requirement for you to give 8-weeks notice (which is only required during the taught syllabus) that your notice would expire on 20th July so as to provide 4-weeks’ notice. My offer to waive the notice was proposed to alleviate your mental condition which you had indicated in your resignation letters was being negatively affected by the grievance process.”[73]That was inconsistent with the reality: it bore no resemblance to(1) what was being discussed in slack messages of 6 and 7 July 2023 which I have set out in paragraphs 19 and 20 above, or(2) the exchange of messages of 11 July 2023 to which I refer in paragraphs 69-71 above. That might well have been puzzling to the claimant in the circumstances. However, she did not immediately respond and say something to the effect that of course she had not agreed that her notice would expire on 20th July. She replied only after the supposedly-shortened notice period had expired, when she sent her detailed email of 25 July 2023 which I have set out in paragraph 30 above. I have in paragraph 37 above recorded her reason for delaying her response. When arriving at my reserved judgment, I considered that reason carefully. I concluded that the claimant’s desire to obtain legal advice before responding was at least understandable but I also concluded that the claimant was very careful not to agree to the early termination of her notice period and that Ms Lakhani’s assertion of such an agreement was as a result ample justification for seeking legal advice before responding. In any event, I concluded that the absence of a response by the claimant before 25 July 2023 did not show that the claimant had in fact agreed to shorten her notice period from 8 weeks to 4 weeks. My conclusions The claim for 4 weeks’ pay[74]Given all of the factors to which I refer above, the respondent failed to satisfy me on the balance of probabilities on the evidence before me that the claimant had agreed with Ms Lakhani acting on behalf of the respondent to shorten her (the claimant’s) notice period. That meant that the claimant’s claim for unpaid wages in the form of four weeks’ pay succeeded. That was for £27,000 / 365 x 28 = £2,071.32 before deductions. It will be noted that that was not what the claimant was claiming, which was a calendar month’s pay, i.e. £27,000 / 12, which is £2,250. The fact that the claim was wrongly made for £2,250 did not occur to me until arriving at my reserved judgment. A similar issue arose in relation to the claim for a day’s pay, to which I now turn, but rather than delay yet again the determination of these claims, I concluded that it was best to resolve them in the way that I thought right and leave it to the parties to ask me, under rule 69 of the Employment Tribunal Procedure Rules 2024, to reconsider my judgment if they took serious issue with it. If either of them does do that, then they should state in detail why they say I have in their view erred. I will then consider the application for reconsideration in accordance with rule 70 of those rules. The claim for a day’s pay[75]At no time was it said to the claimant that if she was not required to attend work on 8 July 2023 then she would not be paid as a result. She was paid an annual salary, and clause 4 of her contract of employment, which I have set out in paragraph 55 above, gave no indication that payment was linked to the hours actually worked, even though the clause did rather favour the respondent. Assuming that the claimant did in fact receive the message which I have set out in paragraph 56 above (and noting that if she did receive it and attended work on 8 July 2023, then that attendance was likely to have been with a view to arguing that she should not lose pay as a result of not being required to attend), I saw that the message did not say that the claimant would lose pay as a result of not being needed at work on the following day. It was true that clause 6.4.2 of her contract of employment, at G263, referred to the respondent being entitled to deduct from salary “A day’s ... pay for each day ... of unauthorised absence”, but even that power was not applicable if the absence was because of “leave for which prior permission ha[d] been granted”. In any event, clause 6.4.2 did not apply, as the claimant did not fail to attend work on a day when she was required to work.[76]In those circumstances, I concluded that the claim for an unlawful deduction from wages succeeded in respect of the refusal to pay the claimant on the basis that she did not attend work on 8 July 2023. In fact, I accepted her evidence that she did attend work on that day, but whether or not she did was irrelevant in the circumstances as I have found them to be. She was entitled to be paid her salary until the termination of her notice period. She was not paid per day of work, despite what was said in clause 6.4.2 of her contract of employment. Nowhere in clause 6 (headed “Remuneration, Expenses and Deductions”), or elsewhere in the claimant’s contract of employment at G262-G270, was the amount of a day’s pay stated. In any event, I concluded that the claimant was entitled to be paid her salary in full to 20 July 2023. She was therefore entitled to payment for 20 days of July 2023. That was £27,000 / 365 x 20, which was £1,479.45. She had been paid £1,350.05 (I saw from page D130). Accordingly, she was underpaid in her final salary on the erroneous basis that she was not entitled to be paid because she was not required to work on 8 July 2023 by £1,479.45 minus £1,350.05, which was £129.40 before deductions. The claim in respect of a failure to give a reference[77]Given my conclusion stated in the first sentence of paragraph 74 above and what I say in paragraph 62 above, there was in my judgment no consideration for any agreement of the respondent to give a reference. There was no more than a nonbinding, i.e. non-contractual, promise in that regard. The claim for a week’s pay as a result of the failure to give a reference therefore did not succeed. Approved by