Mrs I-Z Simon v Portsonachan Wilderness Lodges Ltd: 4100470/2026
JUDGMENT
[1]The Tribunal grants a declaration that the respondent made unlawful deductions from the wages of the claimant under section 13 of the Employment Rights Act 1996 by not paying her for annual leave due under the Working Time Regulations 1998, not paying wages for work carried out in the week commencing 3 February 2025, not refunding pension contributions deducted from her wages and not distributing tips.[2]The claimant is awarded the following sums:(i) £428.30 for pay for annual leave,(ii) £428.30 for not making payment for the week commencing 3 February 2025,(iii) £95 in relation to pension deductions not refunded, and(iv) £200 in relation to tips, such that the total sum payable by the respondent to the claimant is ONE THOUSAND ONE HUNDRED AND FIFTY ONE POUNDS SIXTY PENCE (1,151.60).[3]The sums are awarded net of statutory deductions. To the extent that there are sums due for income tax or otherwise in respect of the amounts awarded above, they are the responsibility of the respondent.REASONS
[1]This was a Final Hearing into the claims made by the claimant set out below. The claimant is a party litigant. The respondent was represented by Ms Braber who is the PA to one of the Directors of the respondent. Neither had experience of an Employment Tribunal hearing.[2]Case management orders were made on 9 April 2026.[3]Before the hearing of evidence started I explained about how it would proceed, that I would not look at any document unless raised in the evidence, that the evidence was for liability and remedy, that cross examination covered any fact that was disputed and if not addressed in correspondence I would be likely to accept the point as proved, or any matter that the witness was aware of and the other party wished to raise, about my questions and regarding reexamination.[4]I noted that the respondent had tendered two statements purporting to be statements of truth. I explained that as these statements could not be cross examined I may give them little if any weight, but they could be tendered. Ms Braber confirmed that she did not intend to call any oral evidence, and explained that the persons concerned were not available to do so because of a business commitment.Claims
[5]The claimant makes a claim under section 13 of the Employment Rights Act 1996 (“the Act”) for unauthorised deductions from wages. The respondent had attempted to pursue an employer’s contract claim, but that had been rejected by the Vice President. In light of the nature of the decision to do so I proceeded on the basis that the claimant did not pursue a breach of contract claim herself.[6]The claimant’s claim and Schedule of Loss sought to include an amount for what she described as compensation. Matters related to that were addressed in part in the said statements. I explained to the claimant that the compensation claim could not be pursued as one of unauthorised deductions from wages in the Employment Tribunal.Issues
[7]I raised with the parties at the start of the hearing the issues before me as being:(i) Did the respondent make unauthorised deductions from the wages of the claimant under section 13 of the Employment Rights Act 1996 in relation to (a) wages for work carried out (b) holiday pay (c) cash tips and (d) a refund of pension contributions.(ii) If so, to what remedy is the claimant entitled?[8]From parties’ correspondence I noted that the issue of holiday pay had effectively been agreed at £428.30. The claimant and Ms Braber confirmed that, and that it had not been paid. The claimant did not pursue one aspect of the claim for wages being for her last day of employment. It was also agreed that there had been pension contributions taken, and that the claimant had opted out, but the respondent’s position was that the sum had been repaid to her in cash.Evidence
[9]There was no file or Bundle of Documents, but the parties had sent a series of emails with attachments, some of which was spoken to. Not all of it was relevant to the issues before me.[10]Evidence was given by the claimant only. I asked questions of the claimant to elicit facts under RuIe 41.[11]The claimant wished to call an additional witness Mr Tony Hynes, and there was a short adjournment to arrange that. When the hearing resumed he was not present, and after waiting for a brief time to allow the claimant to send another message the hearing resumed without his evidence.[12]The respondent did not call any oral evidence, as noted above.[13]The claimant had on 14 June 2026 tendered audio recordings, which for the reasons I address below I did not listen to.Facts
[14]I considered all the evidence properly led before me. I found the following facts, which I consider material to the issues that are to be determined, to have been established: Parties[15]The claimant is Mrs Iona-Zoita Simon.[16]The respondent is Portsonachan Wilderness Lodges Ltd.[17]The claimant was employed by the respondent as a receptionist at the hotel operated by the respondent from 3 February 2025.[18]No written particulars of employment were provided to the claimant.[19]She worked 5 days per week. Her pay was £480.30 net per week.[20]The claimant was informed by one of the directors of the respondent, Mrs Judith Parker, that the pay for the first week would be paid to her on termination of employment. The respondent has not paid the claimant for the work she carried out in the week commencing 3 February 2025.[21]The claimant’s employment ended on or around 10 December 2025. The claimant accrued annual leave for five days, being one week, which was not paid to her by the respondent.[22]In the first payslips the respondent deducted £19 per week for pension contributions. The claimant informed the respondent that she opted out of pension. The respondent has not refunded to the claimant the pension contributions due to her of £95.[23]When the claimant started work cash tips from customers were administered by the Head Chef. The claimant received cash payments in March and April 2025 of £25 and £40 respectively for her share of tips in the previous months. In April 2025 the Head Chef left. The claimant did not receive any payment for tips thereafter. Tips received from customers were placed in a jar in the manager’s office. They were not distributed amongst the workers. They were utilised by the respondent to make payments. When the claimant raised the issue with Mrs Parker she replied in writing on 17 December 2025 “Not my problem, I don’t have anything to do with tips and I will tell HMRC that no staff received tips as they are taxable.” Submissions for claimant[24]The claimant argued, in very brief summary, that her evidence should be accepted as sufficient. Respondent’s submission[25]Ms Barber for the respondent argued in very brief summary that the claimant had not proved that she had not been paid for the sums she sought. She asked me to read the two statements tendered. She explained that she could only go on the basis of what she had been told.Law
[26]If unauthorised deductions from wages are made under section 13 of the Act a claim can be pursued to the Tribunal under section 23. Wages are defined in section 27 to include “any sums payable to the worker in connection with his employment…..” The entitlement to holiday pay arises from the Working Time Regulations 1998 which have provisions in Regulation 14 for accrued annual leave at the date of termination, and Regulation 16 in relation to the calculation of what is due.[27]Tips are addressed by the Employment (Allocation of Tips) Act 2023 (“the 2023 Act”), for which there is a statutory Code of Practice. Duties fall on the employer to manage tips in accordance with the Act. The central provision relevant for present purposes is section 2, which inserts a new sub-section into the Act, as follows: “27D How tips etc must be dealt with(1) An employer must ensure that the total amount of the qualifying tips, gratuities and service charges paid at, or otherwise attributable to, a place of business of the employer is allocated fairly between workers of the employer at that place of business.(2) Where a worker is allocated an amount of employer-received tips in accordance with subsection (1), that amount is payable to the worker by the employer.(3) In determining what would be a fair allocation of qualifying tips, gratuities and service charges under this section or section 27E (nonpublic places of business), regard must be had to the relevant provisions of any code of practice issued under this Part.(4) See also sections 27E (non-public places of business) and 27F (independent troncs)…..”[28]The 2023 Act also introduced a new section 27J to the Act which requires the employer to maintain written records.[29]The relevant Code of Practice includes the following in relation to fairness in distribution of tips: “Factors to consider 21. Allocating and distributing tips fairly does not necessarily require employers to allocate the same proportion of tips to all workers. There may be legitimate reasons why employers choose to allocate different workers different proportions of tips. However, employers should ensure they give due consideration to all of the workers involved in providing service to customers, including agency workers. 22. Employers should use a clear and objective set of factors to determine the allocation and distribution of tips. The choice of factors should be fair and reasonable given the circumstances and the nature of the individual business. 23. Listed below are some of the factors which may be considered by employers, though this list is illustrative rather than exhaustive:a. Type of role / work for example distribution between front of house and backroom workersb. Basic pay (and how workers are engaged)c. Hours worked during period when tips are receivedd. Individual and/or team performancee. Seniority / level of responsibilityf. Length of time served with the employerg. Customer intention.”[30]The sums due for wages when held to have been subject to an unauthorised deduction are what sums were properly payable to the worker.Discussion
[31]The claimant was I consider a credible and reliable witness. She explained her position clearly and had documents to support it in some respects. I accepted her evidence. The argument for the respondent was that her claim had not been proved, but in my view it was.[32]So far as the date of commencement was concerned her evidence was that that was on Monday 3 February 2025. The respondent argued that it was 8 February 2025, but the claimant pointed to messages exchanged with Mrs Parker, one of the directors, about arriving on 2 February 2025 consistent with starting work the following day. That that is a Monday is also more likely to be correct in my view, given that she worked for five days per week.[33]The respondent appears to me in breach of its obligation to provide written particulars of employment, none being tendered before me. Had there been such a statement, required by section 1 of the Act, it would (or should) have stated the date of commencement. The duty to issue that, on the first day of employment, falls on the employer, and its absence is a factor I considered that did not support the respondent’s position. They did not tender oral evidence, which is a further factor.[34]I accept the claimant’s evidence that her employment started on 3 February 2025. There was no dispute but that the weekly net pay was £480.30.[35]Pay for annual leave was agreed at 5 days and at that same figure. It has not been paid, and is due. It is an unauthorised deduction from wages.[36]The respondent’s position was that the claimant had been refunded for the pension contributions in cash, but there was no oral evidence tendered. The statements from the two persons who tendered them did not address the detail of when the payment had allegedly been made, and no written receipt or similar from the claimant was provided. I would normally expect that to have been obtained by an employer making payment for such a sum in such circumstances. The absence of any form of written receipt or similar such as an email about it was I considered significant, and supported the claimant’s own evidence. I preferred the evidence of the claimant, given on oath and subject to cross examination, to the said statements. There was no dispute over the amount. It is an unauthorised deduction from wages.[37]The claimant sought a payment for cash tips but accepted she could not quantify that. Her evidence of what she had been paid was rather vague, at about £25 in March 2025 and about £40 or £45 in April 2025, for the work in February and March 2025 respectively. The amounts and dates were not always consistently given. But I accepted that sums of that amount had been paid initially, and none thereafter.[38]The 2023 Act sets out requirements on employers in relation to tips, by introducing new provisions into the Act, and is supported by a Code of Practice. The respondent on the evidence before me simply breached those provisions. No written records were provided. No details were given about tips, or how they were to be distributed. There was a message from Mrs Parker to the effect that she had nothing to do with tips. That is not however what the Act requires.[39]The evidence from the claimant, which I have accepted, was that the respondent used the sums for its own purposes from April 2025 onwards. In my view in light of the terms of the Act as amended by the 2023 Act and the definition of wages found in section 27 of the Act tips are wages. Not to pay tips which ought to have been distributed amongst workers is therefore an unauthorised deduction from wages.[40]I have decided that it is appropriate to make an award for the period from April to November 2025 inclusive, and use the lower of the amounts of £25 as the minimum sum which the respondent ought to have distributed to the claimant. It is likely to have been materially higher, and it is within judicial knowledge that the volume of customers in the summer season will be materially higher than out of season, but I do not consider that I have a sufficient evidential base to make any further award. The award I make is however I consider sufficiently based. The period covered by the award is of 8 months, and at the minimum figure of £25 per month the total is £200.[41]I did not consider it necessary or appropriate to listen to audio recordings sent by the claimant. They did not assist in the determination of the issues before me. Much of the contents of the two written statements referred to were also not relevant to the issues before me. So far as they were, although they can be admitted under Rule 41 they have I consider no material weight given the inability to test them as noted above, but I have considered them.[42]The sums are awarded net of statutory deductions. That is the basis on which the evidence was presented. To the extent that there are sums due for income tax or otherwise such sums are the responsibility of the respondent and payable by them in addition to the sums awarded.Conclusion
[43]I make the findings in favour of the claimant to the extent set out above.[44]I did consider whether to issue a penalty under the terms of section 12A of the Employment Tribunals Act 1996 for the breaches of provisions of the Act, but have decided on balance, just, not to do so. The documenting of employment, and managing the issues that arose, appears to have been at best inadequate, and the respondent may wish to consider what its duties are and how to fulfil them, either by researching matters or obtaining advice.