Mr GT MacLeod v MacAuley Trading Ltd: 4100709/2019
JUDGMENT
The judgment of the Employment Tribunal is that:(1) The claim of unfair dismissal is dismissed.(2) The claim of breach of contract is dismissed.(3) The claim of unauthorised deduction from wages contrary to Section 13 of the Employment Rights Act 1996 (the ERA) is well founded.REASONS
[1]The claimant presented a claim on 11 January 2019, claiming unfair dismissal; breach of contract in respect of failure to pay notice; unauthorised deduction of wages under section 23 of the Employment Rights Act 1976 (the ERA); and failure to pay holiday pay which had accrued but not been paid upon the termination of employment.[2]The claimant appeared in person, and the respondents were represented by Mr Morton, Counsel.[3]There was a preliminary issue as to the identity of the respondents. It is accepted by the claimant and the respondents are correctly identified as detailed in the ET3, as MacAuley Trading Limited.[4]It emerged from discussions at the commencement of the hearing that there is no agreement as to the claimant’s pre-dismissal earnings. It is accepted that the claimant work shifts, and therefore had a variable work pattern. The claimant had approached the calculation of his pre-dismissal earnings by averaging out his hours of work and pay over the duration of his employment. This approach is not accepted by the respondents. As the Tribunal understands their position, they contend that the claimant’s pay should be determined on the basis of ascertaining the date of termination of his employment and considering his average earnings for a period of 12 weeks prior to that. The date of termination of employment is not agreed.[5]It was not clear to the Tribunal that the parties had produced all of the relevant pay information, and the issues which might arise in attempting to determine the claimant’s pre-dismissal earnings had not been focused prior to this hearing. These difficulties were compounded in that the claimant only received the joint bundle of documents, which include information about pay, on the morning of the hearing, and did not have adequate time to consider the information relating to pay in full before the commencement of the hearing.[6]This lack of focus also applied to the claimant’s claim for holiday pay. How the claimant’s holiday entitlement will be calculated is contingent his rate of pay and his hours of work. The claimant requires to set out the basis on which it is said holiday pay is due, and how much he claims by way of holiday pay, and how that is calculated.[7]Given these difficulties and taking into account the length of the time the case was listed for, and the evidence which the Tribunal will have to hear, it was agreed that this case would be split into a hearing on Merits with a separate hearing on Remedy, in the event the claim succeeds.[8]As part of is consideration of the Merits hearing the Tribunal will consider whether as a matter of principle there should be any reduction to compensation for unfair dismissal on the grounds either of the principles to be derived from the case of Polkey v AE Dayton Services Ltd (19 87) ICR 142, or contributory conduct, however the assessment of the amount of any compensation will be deferred until the Remedy Hearing.[9]The Tribunal will determine whether or not the claimant’s claims for breach of contract, and unauthorised deduction of wages are well founded as part of the Merits Hearing, but any remedy to be awarded in respect of those claims will be considered as part of the Remedy Hearing.[10]Alongside the Remedy Hearing the Tribunal will assign a hearing to consider the holiday pay claim. This will allow the claimant the opportunity of specifying this claim as set out above, and the respondents of responding to it.[11]In the event the holiday pay claim is to proceed the claimant should provide that specification 14 days after the date of this judgement, and the respondents have 14 days thereafter to reply indicating what aspects of the claim if any are agreed, and what is not agreed, and why it is not agreed.[12]In relation to the unfair dismissal claim the first issue for the Tribunal is to determine whether or not the claimant was dismissed, the respondent’s position being that the claimant resigned.[13]In the event the Tribunal is satisfied the claimant was dismissed the respondents thereafter contended that there was a fair reason for dismissal, which was the claimant’s misconduct. The issue for the tribunal is therefore whether the respondents have established a potentially fair reason for dismissal in terms of section 98 of the ERA, and thereafter whether dismissal was fair or unfair in terms of section 98(4) of the ERA.[14]The claimant gave evidence on his own behalf, and for the respondent’s evidence was given by Mr Callan MacAuley, and Mrs Karen MacAuley, directors of the respondent business, and Mr Beaton a patron of the Lochboisdale hotel and neighbour of the claimant.[15]The parties produced a joint bundle of documents. There was an issue in relation to the inclusion of some of the documents in the bundle, in particular witness statements obtained by the respondents which were not going to be spoken to by witnesses at the hearing, and which the claimant saw for the first time the morning of the hearing. This was resolved by the statements being withdrawn from the bundle. 1 6. The claimant also objected to the inclusion of his contract of employment and the company hanbok, which were in the bundle. The Tribunal was satisfied that these documents were relevant and should be allowed. The claimant confirmed that he was in a position to proceed with the hearing and did not require an adjournment of the hearing on the basis of these documents being introduced.[17]Any issues arising from the inclusion of information about the claimant’s pay in the bundle, which the claimant did not have an adequate opportunity to consider, was dealt with by the separation of merits and remedy. Findings in fact[18]The respondents are a company who operate the Lochboisdale Hotel in South Uist. The respondents employ around 1 0 members of staff, depending on the season, on a full time and casual basis.[19]Mr and Mrs MacAulay are directors of the business and are also involved in the day to day running of the business; they have operated the hotel for the past 15 years. The business is seasonal, summer being the busy period where more staff are required. In the winter season staff are sometimes laid off.[20]The claimant, whose date of birth is 1/7/1964 was employed by the respondents as bar assistant, working a variable shift pattern. The claimant and Mr Mrs McAuley were friends. The claimant had previously worked in another hotel but lost his job there; he thereafter approached the respondents and was offered the job of bar assistant, commencing on 8 May 2016. 21 . The claimant signed a contract of employment, which is produced at page 33 and 34 of the bundle. The contract states: 7 confirm that I have read and understood the contents of the Employee Handbook. ‘I confirm that I have read and understand the final section of the Employee Handbook entitled ‘Summary of our rights to deduct’ and agree to this section, along with all other sections in the staff handbook (except where expressly stated) form part of my contract of employment. '[22]The respondents also have an Employee Handbook (page 35 to 69 of the bundle). The Handbook is not issued to individual members of staff, but staff are shown a copy of the Handbook when they commence their employment, and a copy of the handbook is retained in the respondent’s offices where it is accessible to staff. The Handbook provides: ‘Summary of our rights to deduct’ Whilst we understand that accidents to happen, we expect that you should take all reasonable care with the hotel, guests/customers, or any of our parties properties. Therefore, if we suffer any loss or damage to any property or stock or equipment which is due to your failure to follow our rules and procedures, or deliberate vandalism, or unreasonable carelessness or neglect, then we will deduct the costs of repair or replacement for any item from any salary/wage, holiday pay, sickness payment or any monies owed to you by the Hotel. ‘If we suffer any loss, fine costs due to your actions and failure to follow our rules, procedures or legal requirements, or your carelessness or neglect, then we will deduct the cost of the loss or fine from any money owed to you by the Hotel. ’[23]The Handbook also contains a disciplinary procedure.[24]Mrs McAuley was involved in drafting the Handbook, which she revised from a template provided to her by employment law advisers.[25]Initially when the claimant commenced his employment with the respondent there were no issues with his performance, however as time went on issues began to arise as far as the respondents were concerned with the claimant’s performance as a result of his misuse of alcohol. The claimant was late for his shift from time to time, which the respondents attributed to his misuse of alcohol. On occasions the respondents had to telephone the claimant to get him to come into work. Mr and Mrs MacAulay received complaints from other members of staff that the claimant was not always available to serve in the bar when he should have been, and they received complaints from customers about not being served by the claimant.[26]The bar at the Lochboisdale Hotel is licenced until 1am. The respondent’s instructions are that the bar is closed at 11pm, unless there is a sufficient number of customers to justify it remaining open. Mr and Mrs MacAulay formed the impression that the claimant remained later in the bar than he should have on some occasions, and that he was drinking there. On one occasion in September 2018 the claimant kept the bar open until 1am and left a note to confirm he had done so on his timesheet; however, no issue was taken by the respondents with the claimant at the time.[27]Mr and Mrs MacAulay spoke to the claimant on at least some occasions during the course of his employment, about misuse of alcohol. Such conversations however were always approached on the basis that the claimant and Mr and Mrs MacAulay were friends, and there was never a formal discussion in terms of the respondent’s disciplinary or capability procedures about the performance issues.[28]The claimant stopped drinking for a while, but during the period from June until September 2018, he was again drinking, and the respondent’s impression that the claimant’s performance at work during that period was overall unsatisfactory, in particular his reliability in his failing to turn up for work on time, and the failing to be available in the bar to serve customers.[29]By mid-September 2018, Mr and Mrs MacAulay were becoming increasingly concerned about the claimant’s drinking. On 17 September, Mr MacAulay sent the claimant a message via Facebook asking the claimant to come into the hotel to have a chat (page 92) . The claimant picked up the message late, and sent a reply asking if he could come in the following day (18 September) when he was working a shift, which Mrs MacAulay agreed to.[30]The claimant attended early for a shift on 1 8 September and had a meeting with Mr and Mrs MacAulay. At this meeting there was a discussion about the claimant’s misuse of alcohol. Mrs McAuley raised some performance issues with the claimant saying that he had come in to work drunk and that he had been drinking behind the bar, and she said to the claimant that she could not trust him. The claimant did not challenge the performance issues raised. He acknowledged that he was drinking too much at home and he spoke about being depressed. There was a discussion about how the claimant could deal with this issue. In the course of this discussion the claimant indicated that he felt the best way to deal with his issues with alcohol was to leave South Uist and be closer to his family on the mainland. The claimant had for a considerable period during his employment, spoken about leaving South Uist, and moving away and travelling. He had also spoken about selling his house in South Uist in order to fund his travelling. It was not an uncommon topic of conversation between the claimant and Mr and Mrs MacAulay. In the course of the discussion Mrs McAuley asked the claimant what he wanted to do. The claimant responded that he intended to leave South Uist and that he would work at the hotel until the end of the month.[31]At the conclusion of the meeting, the claimant worked his shift on 18th September. He checked his rota and found he was rota’d to work up until 30 September. The claimant did work his shifts, other than a shift on 25 September, which he did attend.[32]The claimant left South Uist on the 6th of October, and travelled to the mainland, to visit his daughter. It was not the claimant’s intention to leave the island permanently at that time however he stayed with his brother on the mainland to look for work, which he found, and he continues to live in on the mainland. The claimant put his house in South Uist on the market for sale in November 2018, and it was sold in April 2019.[33]The respondents have a system on their till which identifies a member of staff responsible for taking the customers’ bill, and ‘closing down’ at the end of the evening.[34]At some point prior to 26 September, the respondents discovered that there was an outstanding bill of £1 1 1 .50, for which the claimant was responsible on their till system, which had not been paid. Mrs MacAulay telephoned the claimant about this, but he did not respond. She sent the claimant a Facebook message on 26 September asking, ‘can you come down and sort the invoices out tonight please?’. The claimant did not respond to that.[35]In their final wage slip, the respondents made a deduction of the amount of £1 1 1 .50, which was the amount of the unpaid bill.[36]After the claimant’s employment to an end, he made an application for Universal Credit. The claimant telephoned the Lochboisdale Hotel, and spoke to Mr MacAulay, and asked him what he should say to the Benefits Agency in relation to his employment coming to an end. Mr MacAulay told the claimant that he should say that as summer season was coming to an end, there was no work available. He did so in an effort to assist the claimant.[37]At some point after the end of September, Mr and Mrs McAuley were told by some patrons of the hotel that the claimant had on occasion distributed drink without charging for it, and had taken alcohol away from the hotel without paying for it.[38]In November 2018, the claimant contacted the Citizens Advice Bureau, who then sent letter of grievance to Mr and Mrs MacAulay (page 93) on his behalf. The grievance complained that the claimant was entitled to a redundancy payment, holiday pay, and contained a complaint about a deduction from wages of £1 1 1 .50.[39]Mrs MacAulay was upset when she received this letter. She responded to the letter of grievance via Facebook, stating that she was not in the office until the end of November, but that she would pass his letter onto the respondent’s employment law specialists, along with the dates of the claimant’s verbal warnings plus details of the mistakes which he made which cost the respondents revenue, and witness statements pertaining to the claimant taking alcohol while working and being drunk behind the bar. Note on Evidence[40]There was a material conflict between the evidence of the claimant, and Mr and Mrs MacAulay, as to what was said at the meeting of 18 September 201 8. 41 . The Tribunal heard from the claimant, Mr and Mrs McAuley, and Mr Beaton. Dealing firstly with Mr Beaton, the Tribunal had no difficulty in accepting his evidence. He spoke primarily to the fact that the claimant intended to sell his house in South Uist, and in fact sold his house; neither of these points were contentious.[42]Mr Beaton also gave evidence to the effect that the claimant regularly said he intended to leave the island, and to travel. This point was not contentious. Thirdly, he gave evidence to the effect that he had spoken to the claimant, around the time he worked his last shift at the hotel, and the claimant told him he was going to leave at the end of the month, and it was Mr Beaton’s impression the claimant was quite happy about this. The Tribunal had no reason not to accept Mr Beaton’s evidence on this point.[43]Mr Beaton also gave evidence to the effect that he saw the claimant on occasion drinking while working behind the bar. He said that this was generally towards the end of his shift, when the claimant would have one or two drinks which he paid for himself. Mr Beaton did not identify particular times and dates when he saw this happen. Meeting on 19 September[44]There was a material conflict between the evidence of the claimant, and Mr and Mrs MacAulay, as to what was said at the meeting of 1 8 September 201 8. The crux of what the Tribunal has to decide is whether as alleged by the claimant, Mrs MacAulay said to him she could give him until the end of the month (to work) or whether the claimant indicated that he intended to leave South Uist and that he would work for at the hotel until the end of September.[45]It was the claimant’s evidence that he received a Facebook message from Mrs MacAulay on 17 September, asking him to come into the bar for a meeting, and he arranged to go in early the following day, and he met with the MacAulay’s prior to the commencement of his shift. It was the claimant’s evidence that at the start of the meeting, Mrs MacAulay spoke to him in an aggressive tone, and made allegations that he had been drinking while at work and that on more than one occasion he was drunk at work. He said that she finished her statement by saying 'how can / employ you if I can’t trust you?’ The claimant evidence was that he was very taken aback by the tone and content of what she said, and in response to this he asked her what his employment status was. The claimant said that Mrs MacAulay replied that she could give him to the end of the month. The claimant said that the discussion then moved on to discuss ‘life’ issues. He talked about his issues with alcohol, he acknowledged that he had an issue with alcohol and was drinking too much at home, and he spoke about the fact that he thought he may be depressed. The claimant said that during the course of the meeting, he said he would work his notice, and he checked the rota, to find out what dates he was rota’d to work.[46]Mr and Mrs MacAulay gave a different version of what occurred at that meeting.[47]It was Mr MacAulay’s evidence that Mrs MacAulay sent a message via Facebook to the claimant asking him to come in for a meeting because they were concerned about his drinking. His evidence was that the meeting on 1 8 September was an informal discussion, and that he and Mrs MacAulay were concerned about the claimant’s drinking becoming more serious. Mr MacAulay said the claimant was getting himself in a bad way and they didn’t want to see him ‘going down’. The conversation which they had was one which they had had with the claimant many times before, about his intention to move to the mainland and leave South Uist. Mr MacAulay said the discussion was about the claimant’s excessive drinking; the claimant accepted this. The claimant said his approach to controlling his drinking was to move to be closer to his daughter in Glasgow. He accepted he had issues with alcohol, and said it was his intention to move out of South Uist in order to get control of this. Mr MacAulay's evidence was that at the meeting on 18 September, the claimant said he was going to move away from South Uist. He said that the claimant 'indicated he was leaving at the end of September’ and that Mr MacAuley said that was fine. Mr MacAulay said that the claimant then left the public bar area, went into the lounge and made a comment to the barman, Angus McIntyre, that he had come to an agreement with Mr and Mrs MacAulay.[48]Mrs MacAulay’s evidence was that she had asked the claimant to attend a meeting of 18 September because of the invoice for £1 1 1 .50 which had not been closed off. She said that she asked him to come down and look at the invoice and to sort it out. The claimant had stopped answering her calls. She said she telephoned him from a different telephone number, and he answered, and she asked him to come down earlier to the shift, and he said he would.[49]Mrs MacAulay said that when the claimant came in, they started talking about the claimant’s situation, the issues he was experiencing, how he would move on in his life and how he was depressed. She accepted that she raised concerns about his drinking and his being drunk at work, and she asked the claimant how she could trust him. She denied using an aggressive tone or saying she could not continue to employ the claimant if she could not trust him, although she accepted saying she could not trust him. She said that she asked the claimant what he wanted to do. Her evidence was that this question was in the context of his life. The claimant said that was going to leave the island by the end of September; he said the only way to sort himself out was to leave the island completely. The claimant said he would work until the end of September and then go and do something with his life. Mrs MacAulay said the last time she saw the claimant was on 1 8 September.[50]Mrs MacAuley also said at the meeting on 18 September there was a discussion about the outstanding invoice of £1 1 1 .50. She said this was raised during the course of the meeting, and the claimant said that was fine and to take it out of his wages. 51 . The Tribunal did not find this an easy conflict to resolve but on the balance of probabilities, the tribunal concluded that in the course of the meeting, at which the claimant’s difficulties with alcohol were discussed, the claimant indicated that he intended to leave South Uist in an attempt to deal with this, and that he would work at the hotel until the end of September .[52]There were a number of elements which the Tribunal took into account in reaching its conclusion as to what occurred at the meeting.[53]The tribunal attached some weight to the fact that it did not find Mrs MacAulay’s evidence as to the reasons why she asked the claimant to attend the meeting reliable. Mrs MacAuley evidence was to a degree inconsistent on this point, in that she suggested that the meeting discussed the respondents concerns about the claimant’s drinking, but she also said that she asked the claimant to attend the meeting to discuss the outstanding invoice. Her evidence that the invoice was the reason for the meeting was also inconsistent with Mr MacAulay’s evidence; his evidence was that the meeting because of their concerns about the claimant’s drinking. The Tribunal formed the impression that Mrs MacAuley had become confused between the Facebook messages she had sent about the meeting on the 18 September and the contact she had made about the unpaid invoice.[54]Nor did the Tribunal find Mrs MacAulay’s evidence that the unpaid invoice was discussed, and the claimant agreed to the amount being deducted from his wages to be reliable. The Facebook message from Mrs MacAulay on 26 September to the claimant asking him to come in to discuss issues about an invoice was inconsistent with the notion that the claimant had already dealt with this at the meeting on 1 8 September and agreed to the deduction of his wages.[55]That however was insufficient based upon which the Tribunal could reject her and Mr MacAulay’s evidence as to what occurred on 18 September in its entirety. The Tribunal did not form the impression overall that either Mr or Mrs Macauley were attempting to mislead it as to what was said at the meeting. The overall thrust of their evidence was that at the meeting there was a discussion about the claimant’s personal issues, and how he was going to resolve them, which resulted in him stating he was going to leave the island and leave his job at the hotel by the end of September.[56]There were inconsistencies in Mr and Mrs MacAulay’s evidence as to what was said at the meeting on 1 8 September and the tribunal also attached some weight to these. For example, Mr Macauley said he could not recall Mrs MacAuley stating that she could not trust the claimant. Mrs MacAuley accepted that she had said this, albeit she did not accept that she said she could not employ him because she could not trust him. Mr MacAuley’s evidence was that the focus of the claimant ‘leaving’, was leaving South llist, as opposed to the respondent’s employment, albeit he did say the claimant indicated he would leave by the end of September. Mrs Macauley’s evidence was that the claimant said he intended to leave South Used and would work until the end of September. The weight which the Tribunal attached to these inconsistencies was to extend diminished, in that the fact that there were inconsistencies in the evidence of Mr and Mrs Macauley as the to detail of the meeting tended to suggest that both witnesses were attempting to provide the Tribunal with their truthful recollections of what had been said, and the Tribunal did not form the impression that their evidence was rehearsed.[57]In reaching its conclusion, albeit it is not a decisive factor on its own, the Tribunal attached some weight to the fact that it considered to some degree it lacked plausibility that the claimant, after having been told that he was dismissed, would then would have engaged in a discussion about what were very personal issues.[58]The Tribunal also had regard to the fact that the claimant contacted Mr MacAulay after his employment came to an end and asked him what he should tell the benefits office about why his employment came to an end. It appeared to the Tribunal that it was unlikely that the claimant would have made this approach had he been told by the respondents that he was dismissed, as he would then have known the reason why his employment came to an end. The claimant’s said that if had he been dismissed this could have occasioned a delay in him receiving benefits, however in the Tribunal’s view this did not adequately explain why the claimant would take the step of contacted his previous employer to effectively check what should be said to the benefits office about how his employment came to an end. Had he been dismissed it appeared to the Tribunal more likely that he would simply have advised the benefits office that was the case.[59]Mr MacAu lay’s evidence as to the reason he suggested the claimant give the Benefits Office does not necessarily do him credit, in that he suggested a reason which was not discussed or in issue at the time the claimant’s employment came to an end. However, for the purposes of this Tribunal, his explanation that he was trying to assist he claimant was credible, in circumstances where the respondents considered the claimant had in fact resigned from his employment, which may have caused an issue with benefits.[60]In addition, when the claimant first intimated his grievance to the respondents, that grievance was on the basis that he was entitled to a redundancy payment. At that stage, the claimant had consulted with the CAB, and he said it was suggested would be the best course to adopt. Again, however it appeared to the Tribunal that it lacked plausibility that had the claimant been told by Mrs MacAu lay that he had to the end of the month to work in the circumstances he described at the meeting of 18 September, that a letter was subsequently written on his behalf claiming a redundancy payment, but not complaining that he had been dismissed. The claimant impressed the Tribunal as a very competent and able individual which rendered it unlikely, in the Tribunal’s view, that that he had been dismissed this would have omitted this from the letter of grievance.[61]The Tribunal took into account Mrs MacAulay reply to the claimant’s grievance, which the claimant submitted was inconsistent with him having resigned from his employment. It was Mrs MacAulay’s evidence, which the tribunal accepted, that she was upset when she received this letter of grievance. The Tribunal did not consider that too much could be read into the fact that she did not state in response that the claimant had resigned. In reaching that conclusion, it takes into account the letter of grievance makes a specific monetary claim, Mrs MacAulay’s response is to a considerable degree directed towards what she considered to be the cost and loss of revenue, occasioned by the claimant’s mistakes. Mrs MacAulay’s reply also reflects some of the matters which she said came to the respondent’s attention after the claimant’s employment had come to an end, in particular the claimant taking alcohol out of the bar.[62]The Tribunal also took into account that the respondents have an Employee Handbook referred to in the claimant’s contract of employment which made reference to it. The Handbook contained the disciplinary procedure. The Tribunal accepted Mrs MacAulay’s evidence as to how the Handbook was drafted, and she that she had a hand in preparing the Handbook The respondents therefore have a disciplinary process, and it appeared to the Tribunal, that had it been the respondents intention to discipline or dismiss the claimant on the 18th September, they would have utilised that disciplinary process, as opposed to simply having an informal discussion. The fact that they did not do so, lent support to the notion that it was not their intention to dismiss the claimant, and that they did not do so.[63]The Tribunal also considered Mr Morton’s submission to the effect that the claimant did in fact move away from South Uist on 6th October. The claimant’s position in relation to this was that he did not intend to stay away from the island in October when he left for Glasgow and he only intended to have a break, but matters evolved, and he remained living in Glasgow. The Tribunal did not consider too much weight could be attached to the fact the claimant left the island, as his doing so was ultimately consistent with him being dismissed as he said, or his saying that he intended to go, as the respondents contend.[64]On balance, while it was not an easy task, taking into account all these elements and giving consideration to them, the Tribunal was not satisfied that during the course of the discussion on 18 September the claimant was told that he had until the end of the month to work, but rather concluded that the claimant told Mr and Mrs MacAulay that he intended to leave South Uist and that he would continue to work at the hotel until the end of the month. Submissions Claimants Submissions[65]The claimant submitted that this was not process which he had entered into lightly. He submitted that at the meeting of 18 September led to his dismissal. He questioned the respondent’s recollection of the dates, and the reason for the meeting, and he also questioned their recollection of what was said at the meeting. The claimant took no issue with the fact that he often spoke about leaving South Uist and travelling, but he submitted did not put time or date upon his departure. The claimant accepted that he sold his house, but submitted this was irrelevant, as it was not put on the market until November 2018.[66]The claimant did not accept that there should be a deduction in compensation on the basis of Polkey or contribution. He accepted that he had some alcohol problems but submitted this did not affect his ability to his work did not accept this conduct was blameworthy. Respondents Submissions[67]Mr Morton identified the issues and submitted that the respondents witness evidence should be accepted and the Tribunal should find that there was no dismissal. The event was a dismissal, there was a fair reason for that, which was the claimant’s misconduct the tribunal should reduce compensation both in terms of Polkey, and an account of the claimant’s contributory conduct[68]Mr Morton submitted that there could be no claim for breach of contract, as even if on the claimant’s case he had been dismissed with notice.[69]Mr Morton submitted that the unlawful deduction from wages claim should not be upheld and directed the Tribunal to the provisions of the claimant’s contract, and Handbook which have been produced.[70]In terms of section 94 of the Employment Rights Act 1996 (ERA), an employee has the right not to be unfairly dismissed by his employers.[71]In terms of section 95 (1) of the ERA, an employee is dismissed by his employer if the contract under which he is employed is terminated by the employer whether with or without notice.[72]The first issue in this case, which is potentially determinative, is whether or not there was a dismissal. It is for the claimant to establish that he has been dismissed. For the reasons given above in the Note on Evidence, the Tribunal was not satisfied that the respondents told the claimant that he could work until the end of the month during the course of the meeting on 18 September.[73]The Tribunal was satisfied on balance, that in the course of that meeting, the claimant told the respondents that he intended to leave South Uist, and that he would work for them until the end of the month.[74]The Tribunal considered whether this statement on the part of the claimant gave rise to a resignation on the part of the claimant, and in doing so, considered the circumstances, and how a reasonable employer would have understood this statement in those circumstances. The Tribunal was satisfied, applying that objective tests, that the claimant indicating that he intended to leave South Uist and that he would work until the end of the month, can be reasonably construed as an intimation of his resignation from his employment with notice, and that in terms of that notice his employment came to an end on the 30 th of September 2019.[75]The effect of that conclusion is that the Tribunal did not conclude that there was a dismissal for the purposes of section 95 of the ERA, and the unfair dismissal claim is dismissed. Breach of contract claim[76]In the circumstances, the Tribunal was satisfied that the claimant tendered his resignation from his employment, with notice, the claim for breach of contract in reference to notice pay is dismissed. Section 13 of the ERA claim[77]Section 1 3 of the ERA provides as follows:(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 that deduction.(2) In this section ‘irrelevant 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 employee 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 employee has notified to the worker in writing on such an occasion.[78]The relevant terms in the claimant’s contract of employment, and the Employee Handbook are set out in the findings of fact.[79]The claimant initially suggested that he had not signed the contract, however he accepted in evidence that he may have, and the Tribunal was satisfied that he had. It appeared to the Tribunal highly improbable that the respondents would have forged the claimant’s signature, and indeed that issue was not put to the respondent’s witnesses by the claimant during cross examination.[80]The claimant had therefore signed a contract of employment, which draws attention to the contents of the employee handbook, and in particular, part of that employee handbook which dealt with the respondent’s right to deduct wages. The claimant accepted that he may have seen the contract, but his evidence was that he had not seen the Employee Handbook. 81 . The Tribunal was satisfied however that the claimant had been advised of the existence of a contract term authorising the respondents to make a deduction, and therefore the requirements of section 13 (1) (b) of the ERA were satisfied and there was a contractual provision authorising deduction from wages.[82]The Tribunal then went on to consider whether the deduction made was in fact justified.[83]The invoice which gave rise to the deduction was not produced. There was some evidence about the till system in the bar, and the Tribunal accepted that the claimant’s name was attached to this particular tab on the respondent’s system. However, there was no evidence of the particular day on which invoice was left outstanding, or who else was at work on that day, or how exactly the invoice came to be left outstanding.[84]In order for the respondents to make deduction in terms of the contractual provision in the claimant’s contract of employment, they have to establish that the deduction made was because of the claimant’s fault or negligence, and the Tribunal was not persuaded there was sufficient evidence to allow it to conclude that the invoice remained unpaid as a result of the claimant’s fault or negligence. The tribunal and therefore found that the claimant’s claim under section 23 of the ERA is well founded. Further procedure[85]It should not be necessary to fix a remedy hearing in relation to the section 23 claim, given the clear evidence before the Tribunal as to the amount of the deduction.[86]In the event, if a remedy hearing is necessary however to determine that issue, then it will be fixed, but the parties will require to explain why it is considered necessary.[87]There is an outstanding issue in relation to holiday pay, and if this claim is to proceed the claimant should produce the information indicated above within 14 days. The respondents should respond within 14 days thereafter. If the holiday pay claim remains outstanding, then a hearing will be fixed to deal with that.