Mr S Walker v Polygon Public House Ltd (company number 11092248): 6001568/2025

EMPLOYMENT TRIBUNALS

Case No 6001568/2025

Between

Mr S WalkerClaimant

Polygon Public House Ltd (company number 11092248)Respondent

Before

Employment Judge Wright

In person for claimant

Date 2 June 2025

JUDGMENT

It is the Judgment of the Tribunal that the claimant’s claim of unauthorised deductions from wages under Part II of the Employment Rights Act 1996 (ERA) is well founded, it therefore succeeds. It is declared the sum of £527 gross was unlawfully deducted and the respondent is Ordered to pay the same to the claimant.

REASONS

[1]The claimant presented a claim 16/1/2025, after a period of Acas early conciliation between 10/1/2025 and 15/1/2025. He was employed by the respondent as a Assistant General Manager between 7/10/2024 and 24/11/2024 when he resigned without giving notice.

[2]The claimant has ticked the following boxes in part 8.1 of the claimant form: holiday pay; arrears of pay; and other payments. In box 9.2 of the claim form, the claimant has set out the compensation he is seeking: Compensation:"Short Pay (as reported): £354.64 Missing Service Charge (from 27/10/24 to 24/11/24): £1,334.40 Landlord Fees (late rent, including additional fee): £70 Damages (including stress and confidence impact): £200 Total Claimable Amount: £1,959.04 Amount requested: £1959.04"

[3]The claimant had uploaded 23 documents which he sent during the hearing. Some could not be opened as they required a login. The claimant also referred to an 8-page PDF which he had sent. He then forwarded a 7-page document which appeared to be AI generated (the claimant said he had used AI, but that he had asked a lawyer friend to check the document). In the main, this document appeared to be advice for conducting the hearing (for example it stated how many copies of the bundle should be provided) and it suggested questions the claimant may be asked in crossexamination, with answers and questions he may wish to put. This document did not assist the Tribunal.

[4]As the documents were not in a format which could easily be accessed or referred to in the hearing, the claimant was asked to explain the claims he had articulated and quantified in his claim form.

[5]The claim for ‘short pay’ represents the hourly rate of £11.44 multiplied by 31 hours worked = £354.64.

[6]Ms Savry agreed these were the hours worked and the rate of pay. It was her case that as the claimant left without giving notice, the respondent was entitled to withhold this sum. Her rationale was that the respondent had incurred costs in having to cover the claimant’s shifts at short notice. Ms Savry relies upon advice from her payroll provider.

[7]In the ET3 response form, in box 7 Employer’s Contract Claim the respondent had ticked box 7.2 which states: ‘if you wish to make an Employer’s Contract Claim in response to the claimant’s claim, please tick this box and complete question 7.3’. There were no details provided in box 7.3 which is a free text box.

[8]Notwithstanding the claimant had not made a contract claim (his claim was for statutory payments due under the Employment Rights Act 1996 for unauthorised deduction from wages); there was no particulars of this claim provided by the respondent.

[9]The ‘Missing Service Charge (from 27/10/24 to 24/11/24): £1,334.40’ was explored. It transpires this is 12.5% which is added to customers’ bills and is distributed by the respondent through a tronc system. The percentage distributed depends upon the role of the employee. The claimant agreed during this hearing the correct multiplier was 31 hours. Ms Savry agreed that this represented an hourly rate of £5.56 multiplied by 31 hours = £172.36.

[10]Ms Savry submitted that this element formed part of a separate agreement and that the respondent was entitled to withhold it.

[11]In respect of ‘Landlord Fees’ the claimant contended this represented two late payment fees of £35. He had no evidence of this however.

[12]It was explained to the claimant that the Tribunal has no jurisdiction over damages related to stress or the impact upon his confidence.

[13]The claimant’s contract of employment signed by him on the 23/10/2024 provides:

[14]The contract also purports to allow for deductions from pay.

[15]There is also a Service Charge Policy also signed by the claimant on the 23/10/2024. That documents states that the service charge is a discretionary sum based upon seniority and management discretion. It states the service charge may vary week to week based upon how busy the respondent is and how much service charge is received. Factors which may result in a deduction or forfeiture of the service charge include: ‘not adhering to notice period which is a 3 week prior to the rota being issued’. It is not clear what this means.

[16]There was no evidence from the respondent in respect of the loss it says it suffered.

The Law

[17]The Tribunal referred to sections 13 and 27 of the Employment Rights Act 1996 (ERA): 13 Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

(8) In relation to deductions from amounts of qualifying tips, gratuities and service charges allocated to workers under Part 2B, subsection (1) applies as if— (a) in paragraph (a), the words “or a relevant provision of the worker’s contract” were omitted, and (b) paragraph (b) were omitted.

[27]Meaning of “wages” etc.(1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, (b) statutory sick pay under Part XI of the Social Security Contributions and Benefits Act 1992, (c) statutory maternity pay under Part XII of that Act, (ca) statutory paternity pay under Part 12ZA of that Act, (cb) statutory adoption pay under Part 12ZB of that Act, (cc) statutory shared parental pay under Part 12ZC of that Act, (cd) statutory parental bereavement pay under Part 12ZD of that Act, (ce) any amount of qualifying tips, gratuities and service charges allocated to the worker under Part 2B of this Act, (d) a guarantee payment (under section 28 of this Act), (e) any payment for time off under Part VI of this Act or section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 (payment for time off for carrying out trade union duties etc.), (f) remuneration on suspension on medical grounds under section 64 of this Act and remuneration on suspension on maternity grounds under section 68 of this Act, (fa) remuneration on ending the supply of an agency worker on maternity grounds under section 68C of this Act. (g) any sum payable in pursuance of an order for reinstatement or reengagement under section 113 of this Act, (h) any sum payable in pursuance of an order for the continuation of a contract of employment under section 130 of this Act or section 164 of the Trade Union and Labour Relations (Consolidation) Act 1992, and (j) remuneration under a protective award under section 189 of that Act, but excluding any payments within subsection (2).

(2) Those payments are— (a) any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of section 13 to any deduction made from the worker’s wages in respect of any such advance), (b) any payment in respect of expenses incurred by the worker in carrying out his employment, (c) any payment by way of a pension, allowance or gratuity in connection with the worker’s retirement or as compensation for loss of office, (d) any payment referable to the worker’s redundancy, and (e) any payment to the worker otherwise than in his capacity as a worker.

(3) Where any payment in the nature of a non-contractual bonus is (for any reason) made to a worker by his employer, the amount of the payment shall for the purposes of this Part— (a) be treated as wages of the worker, and (b)be treated as payable to him as such on the day on which the payment is made.

(4) In this Part “gross amount”, in relation to any wages payable to a worker, means the total amount of those wages before deductions of whatever nature.

(5) For the purposes of this Part any monetary value attaching to any payment or benefit in kind furnished to a worker by his employer shall not be treated as wages of the worker except in the case of any voucher, stamp or similar document which is— (a) of a fixed value expressed in monetary terms, and (b) capable of being exchanged (whether on its own or together with other vouchers, stamps or documents, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things). 18. Deductions from wages may be void under common law even if an employee has agreed to them in writing and they are ostensibly authorised by statute. The respondent may make deductions: as authorised by statute (for example, income tax and national insurance contributions); by a contractual provision (for example holiday taken in excess of entitlement upon termination); or by the worker’s written consent or agreement (an example is a loan from the employer to the employee). Even where a deduction is lawful under the ERA, there is a common law rule that any fine or deduction should be a genuine pre-estimate of the loss suffered by the respondent as a result of the employee’s breach and that anything in excess of this is a penalty, which is void at common law (Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (1915 AC 79 HL). This is referred to as an unenforceable penalty clause. Conclusions 19. The claimant’s hourly rate of pay was £17.00 per hour. That is not withstanding that £5.56 of that hourly rate purports to be be a discretionary service charge bonus. 20. The national minimum wage at the relevant time for the claimant’s age was £11.44. 21. Using the Service Charge Policy is respect of the respondent’s ‘discretion’ is an unenforceable penalty clause. There is no genuine pre-estimate of the respondent’s losses if the claimant resigned without notice. In all industries and in particular the hospitality industry, the fact staff may leave or walk out without notice is something which a respondent is expected to be allowed for. 22. The claimant is therefore entitled to £17.00 x 31 hours = £527 gross. This represents the ‘short pay’ and ‘missing service charge’. As the claimant is no longer in the respondent’s employ, he is to account to HMRC. 23. The claimant did not evidence any loss in respect of Landlord Fees. 24. The Tribunal does not have jurisdiction to award damages for stress and confidence impact. 25. Finally, the claimant did not advance or evidence his holiday pay claim. Approved by: Employment Judge Wright 2/6/2025 Sent to Parties. 13 June 2025 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/