Employment Judge DavidsonIn person for claimantDate 15 September 2025
JUDGMENT
Under the provisions of Rule 69, the Judgment dated 15 September 2025 is corrected by inserting the case number 6002790/2024 as set out in bold above. Unfair Dismissal[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]The respondent shall pay the claimant a basic award of £2,572.00. Wages[3]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in October 2023, November 2023, December 2023 and January 2024.[4]The amount of the deduction in the months October 2023 to January 2024 for failure to pay the contractual pay rise is £250 gross per month.[5]The amount of the additional deduction in December 2023 was £601.76. The amount of the additional deduction in January 2024 was £792.38. Case No: 6002790/2024 2[6]The respondent shall pay the claimant £2,394.14, which is the gross sum of the totals deducted. The claimant is responsible for the payment of any tax or National Insurance. Notice Pay[7]The complaint of breach of contract in relation to notice pay is well-founded.[8]The respondent shall pay the claimant £3,241.75 as damages for breach of contract. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay.
REASONS
[1]The notice of hearing for this hearing had been sent to the parties on 10 April 2025 after the original listing in March 2025 had to be vacated due to lack of judicial resources. The notice of hearing had been sent to the respondent’s previous representative who had failed to share the details of the hearing with her colleagues or the respondent. This came to light towards the end of August 2025. The respondent made applications to postpone due to unavailability of witnesses on the hearing dates. These applications were refused. No application was made at the start of the
hearing.
[2]The respondent’s representative informed the tribunal that the respondent’s witnesses would only be available to attend on the second day of the hearing.[3]At the start of the hearing, the claimant applied to amend his claim to include a claim for failure to provide written reasons for dismissal. For the reasons explained at the hearing, the application was refused.[4]The hearing proceeded with the claimant giving evidence and being cross- examined. The hearing was then adjourned until the second day when the respondent’s witnesses attended and gave evidence.[5]During the cross examination of Philip Dowds by the claimant, Philip Dowds attempted to ask the claimant questions and reminded him that he was ‘under oath’. I explained to Philip Dowds that the claimant had answered questions during his cross examination the previous day and that this part of the hearing required him to answer questions put by the claimant and that it was not for him to ask questions. Philip Dowds commented that this was an unfair process and left the hearing. After discussion with the respondent’s representative, Philip Dowds returned to the hearing to resume his evidence and the hearing continued. The Issues The issues the Tribunal will decide are set out below. Case No: 6002790/2024 3
The Issues
[6]Unfair dismissal6.1 Did the respondent do the following things:6.1.1 fail to pay the wages properly due to him;6.1.2 fail to engage with him in relation to pay issues?6.2 Did that breach the express term relating to pay?6.3 Did that breach the implied term of trust and confidence?6.4 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.6.5 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.6.6 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.6.7 If the claimant was dismissed, what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract?6.8 Was it a potentially fair reason?6.9 Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimant?6.10 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.[7]Notice pay7.1 What was the claimant’s notice period?7.2 Was the claimant paid for that notice period?[8]Failure to pay pension contributions8.1 Were the contributions paid in full and when?8.2 Was there any delay in the payments?8.3 Is so, was the employee notified?[9]Unauthorised deductions Case No: 6002790/2024 49.1 Were the wages paid to the claimant in October 2023, November 2023, December 2023, January 2024 and February 2024 less than the wages he should have been paid?9.2 Was any deduction required or authorised by statute?9.3 Was any deduction required or authorised by a written term of the contract?9.4 Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made?9.5 Did the claimant agree in writing to the deduction before it was made?9.6 How much is the claimant owed?
Evidence
[10]The tribunal heard live evidence from the claimant on his own behalf and from Jamie Menzies (Operations Manager and the claimant’s line manager), Philip Dowds (Director), Peter Dowds (Technical Manager) and Lesley Anne Nelson (Customer Services Manager) on behalf of the respondent. The claimant and the respondent’s witnesses (other than Peter Dowds) were cross-examined.[11]The tribunal had a bundle prepared by the claimant running to 198 pages and a bundle prepared by the respondent running to 106 pages.
Findings of fact
[12]The tribunal found the following facts on the balance of probabilities.[13]The respondent operates a business providing technology solutions on building and renovation projects. The claimant commenced employment with the respondent on 6 January 2020 as Technical Project Manager.[14]His contract of employment entitled him to 30 days holiday in each holiday year (inclusive of bank holidays) running from 1 April to 31 March. This equates to 2.5 days per month.[15]After the claimant had been employed for a few months, he was promoted from Technology Systems Engineer to Site Supervisor with a £5,000 pay rise.[16]On 6 October 2021, the claimant met with Philip Dowds to discuss his career path. Philip Dowds set out a five-year career plan with an immediate £3,000 pay increase. He offered the claimant training and an increase in salary each year of £3,000 ‘based on above conditions’. The conditions referred to appear to be ‘In respect of the ongoing career path the promotion will be dependent upon appropriate undertaking of responsibility and associated performance level’, even though those words appear to refer to promotion rather than pay. The claimant accepts that those conditions also apply to pay.[17]In the following October 2022, the claimant received his £3,000 pay increase without any appraisal or discussion taking place. It just appeared Case No: 6002790/2024 5 in his payslip.[18]In September 2023, the claimant requested three weeks’ annual leave. He did not have sufficient leave entitlement to cover the whole period and requested unpaid leave to cover the rest of the period. Mr Dowds told the tribunal that he had approved this in September but ‘under false pretences’. It appears that the claimant was not told that the holiday had been approved because he followed his request up with his line manager, Jamie Menzies. Jamie Menzies confirmed to the tribunal that he had approved the holiday.[19]After some chasing, Jamie Menzies agreed to meet to discuss the holiday request. They met in the local Pret a Manger on 5 October 2023 and were joined by Philip Dowds. No notes of this meeting were taken and there is a conflict of evidence between the claimant and the respondent’s witnesses about what happened.[20]Both Jamie Menzies and Philip Dowds claimed that they had called the meeting in order to discuss performance concerns with the claimant. However, they both accepted, on being shown the email thread, that the claimant had asked for the meeting to discuss his holiday request.[21]The claimant’s account is that he was congratulated on a good job and was offered the time off he had requested as paid leave. He was also told that he would receive the next annual pay rise of £3,000.[22]The respondent’s witnesses say that the claimant asked if he was being dismissed and they went on to explain their concerns about his performance.[23]Philip Dowds told the tribunal that Jamie Menzies wanted to dismiss the claimant at this time but he persuaded Jamie Menzies to give the claimant another chance. This is not mentioned by Jamie Menzies in his witness statement.[24]Subsequent to this meeting, the claimant followed up with his account of what happened in an email dated 29 January 2024. At the time, Jamie Menzies did not challenge the claimant’s account of the meeting.[25]The respondent did not follow up from the 5 October 2023 meeting with any communications which support their account of the meeting. On the basis of the claimant’s email of 29 January 2024, which was not challenged by the respondent at the time, I prefer the evidence of the claimant relating to the meeting at Pret a Manger.[26]The claimant raised queries about his payments with Lesley Anne Nelson on the following dates:26.12 November 2023 regarding absence of pay rise in October pay26.24 December 2023 regarding absence of pay rise in October and November pay26.3 follow up email on 14 December 2023. Case No: 6002790/2024 6[27]Lesley Anne Nelson replied on 14 December 2023 promising to check with payroll and to sort any issues out before Christmas.[28]Deductions were made to the claimant’s December pay equivalent to six days’ pay on 22 December 2023 (the date the December salary was paid). The respondent appears to have assumed that the claimant would be absent for the rest of the month on holiday. However, Philip Dowds, in his evidence said that he treated the claimant as no longer wanting to work for the respondent because of his unauthorised absence after 22 December 2023. The respondent’s pleaded position in its Notice of Appearance is that the claimant dismissed himself by his conduct in not attending for work after 29 December 2023.[29]Philip Dowds told the tribunal that he had attempted to call the claimant during January 2024 but was unable to reach him. He therefore believed that the claimant had left his employment. The claimant showed the tribunal his phone records showing no missed calls from Philip Dowds and other records showing calls received from other people, including Jamie Menzies, to counter Philip Dowds explanation that the claimant’s phone was switched off. Philip Dowds did not provide his own phone records to show that he had attempted to contact the claimant.[30]There is evidence to show that the claimant was in contact with Peter Dowds in January 2024, confirming that he would be back at work on 15 January 2024 and with Jamie Menzies discussing where he should attend for work on 15 January 2024. There are also exchanges of message relating to work matters with Gary Byrne on 25 January 2024.[31]The claimant completed timesheets in January 2024 and received pay for that month, subject to deductions.[32]The claimant continued to raise queries to Lesley Anne Nelson about his pay as follows:32.1 on 3 January 2024 about the deduction of £600 in December 2023 and the lack of pay rise;32.2 on 15 January 2024, following up.[33]The claimant then escalated his concern to his manager, Jamie Menzies on 26 January 2024 querying not being paid for January 2024 and the deduction of £600 from the December payslip. On 26 January 2024, Jamie Menzies apologised and promised to look into it.[34]On 29 January 2024, the claimant sent a follow up email regarding no pay for January 2024 and missing money from December 2023. In that email, the claimant referenced the meeting on 5 October 2023 including details of positive feedback regarding his performance, approval of his holiday as a ‘gift’ and assurance of his pay rise from October 2023. He asked for an explanation for the missing payments. Later that day, he received an apology from Lesley Anne Nelson explaining that there was a delay to January payments which had been rectified that day. Case No: 6002790/2024 7[35]On 29 January 2024, the claimant followed up with Lesley Anne Nelson and Jamie Menzies, chasing for payment and for an explanation. In reply, on that date, Jamie Menzies agreed they should meet to discuss but could not find a time that week but promised to book a meeting for the following week. In response, the claimant wrote to Jamie Menzies complaining that he had been promised a meeting two weeks earlier and that he had not received any explanation since October for missing pay rises. He then said that he was ‘putting his work on hold for now’ repeating his request to meet.[36]The claimant followed up with an email to Philip Dowds on 2 February 2024 asking for a meeting to discuss the current situation. He followed up with another email on 6 February 2024 addressed to Philip Dowds and Jamie Menzies and again on 8 February 2024. He did not receive any replies to these emails.[37]On 9 February 2024, the claimant wrote to Lesley Anne Nelson regarding the discrepancy between the amount of net pay on his payslip and the amount received into his bank account. Lesley Anne Nelson did not reply.[38]On 11 March 2024, the claimant wrote to the respondent pointing out he had not received any work allocation in February 2024 and no reply to his various emails. He concluded that he had been dismissed by the respondent, alleging that the dismissal was unfair.[39]He commenced ACAS early conciliation on 17 March 2024 and submitted his claim to the tribunal on 23 May 2024.[40]The claimant secured new employment in March 2024.[41]The respondent accepts that, due to cashflow difficulties, it fell behind with pension contribution payments for all staff, including the claimant. A repayment schedule was agreed with the workers pension trust to catch up with all payments by 16 January 2025. The pension administrator confirmed in correspondence to the respondent that the claimant’s contributions were up to date by 9 April 2025.
Law
[42]The relevant law is as follows: Constructive dismissal[43]An employee is regarded as dismissed where the employee terminates the contract of employment in circumstances in which he is entitled to terminate it by reason of the employer’s conduct.[44]There must be a breach of contract by the employer which is sufficiently serious to justify the employee leaving, or it must be the last in a series of incidents which justify his leaving (last straw doctrine). The employee must leave in response to the breach and not for some other unconnected Case No: 6002790/2024 8 reason and the employee must not delay too long otherwise he may be deemed to have waived the breach and affirmed the contract.[45]The implied terms of mutual trust and confidence was established by the House of Lords in Malik v BCCI [1998] AC 20, which provided that the employer shall not ‘without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.[46]This is an objective test (London Borough of Waltham Forest v Omilaju [2005] IRLR 35). Unlawful deduction from wages[47]Section 13 of the Employment Rights Act 1996 provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made or the worker has previously signified in writing his agreement or consent to the making of the deduction.[48]Other than in the first year of employment, the whole of an employee’s annual holiday entitlement becomes available to be taken by the employee at the start of each leave year. Credibility issues[49]Where there is a direct conflict of evidence between the claimant and the respondent’s witnesses, I prefer the evidence of the claimant for the following reasons:49.1 both Jamie Menzies and Philip Dowds said that they called the meeting on 5 October 2023 but this was shown by the email evidence not to be the case;49.2 Philip Dowds claimed to have tried to contact the claimant during January 2024 (during a period where he had previously authorised the claimant to take holiday) but this is disproved by the claimant’s phone records and Philip Dowds has not submitted his own phone records to support his position;49.3 Philip Dowds stated that Jamie Menzies wanted to dismiss the claimant due to his performance but this is not referred to in Jamie Menzies’ witness statement nor in any contemporaneous documentation;49.4 the respondent’s bundle contains extracts from email chains without showing all the related correspondence;49.5 the respondent’s witnesses were unable to explain their failure to respond to the claimant’s requests for information about his pay, presumably if the reasons now relied on by the respondent for deductions from pay were valid at the time, these would have been communicated to the claimant;49.6 the respondent maintains a position that the claimant brought his employment to an end on 22 December 2023 (or 29 December 2023) by failing to attend for work but this is inconsistent with the Case No: 6002790/2024 9 evidence before the tribunal that holiday had been authorised and there was continued interaction between the claimant and the respondent throughout January 2024. Determination of the issues Constructive dismissal[50]I find that the claimant’s employment ended on 11 March 2024. Neither party had done anything to bring the employment contract to an end before that date. On 11 March 2024, the claimant informed the respondent that he concluded that he had been dismissed.[51]I find that the respondent constructively dismissed the claimant. The respondent breached the express term of paying salary on time without deductions, including pension contributions. Despite the claimant making numerous requests for an explanation regarding the deductions from his pay, none were forthcoming.[52]The failure to pay wages on the due payment date constitutes a fundamental breach of an express term of the contract.[53]If I am wrong about there being a breach of the express terms of the contract, the respondent was in breach of the implied term of trust and confidence in failing to engage with the claimant in relation to his pay. He raised issues about the failure to give him the pay rise and in relation to other deductions on numerous occasions. The only replies he received were apologies for delays and promises to look into matters but no substantive reply was ever received. I find that this was a fundamental breach entitling the claimant to treat the contract as being at an end.[54]Although the claimant found new work shortly after leaving the respondent’s employment, I accept his evidence that he had not intended to leave the respondent and only looked for new work when he could see that he was not being by the respondent in the way that he was entitled to expect from his employer.[55]I find that the claimant made it clear that he considered the respondent to be in breach of contract by not paying the salary he considered he was entitled to. I find that he did not affirm the contract. He specifically told the respondent that he was not prepared to carry out work while the pay issues were outstanding, in order to make sure he was not seen to be accepting the breach.[56]I find that the respondent does not have a fair reason for the dismissal. The dismissal is therefore unfair.[57]The claimant is entitled to notice pay as he was dismissed without notice. Unlawful deductions from wages – pay rise[58]I find that the claimant had an entitlement to a pay rise each October of Case No: 6002790/2024 10 £3,000 arising from his discussion in October 2021. He would lose this entitlement if he did not comply with the conditions attached to the promise. Although no particular conditions were specified in respect of pay rises, there were conditions specified for the claimant to receive the ongoing promotions he had also been promised.[59]The claimant accepts that these conditions attach also to the pay rises. The respondent argues that his performance did not meet the necessary standard and therefore lost the entitlement to the pay rise. The claimant disputes this and contends that the evidence relied on by the respondent to show that there were problems with the project are nothing more than standard snagging issues which arise with every project.[60]I find that the problems with the projects were not, at the time, considered to be serious breaches by the claimant. The electrical safety issue relied on by Jamie Menzies in his evidence was never checked by him personally and he relied entirely on what he was told by the claimant. The claimant disputes the conclusions reached by Jamie Menzies from what he had been told by the claimant.[61]I find that, if the problems were as serious as is being suggested, the claimant’s manager (Jamie Menzies) or the director (Philip Dowds) would have arranged to discuss these issues with him, to ask him for his account of events and to reach findings about the shortcomings. If the upshot was to be that the claimant did not qualify for his promised pay rise, this should have been explained to him, if not in advance of not receiving it, certainly when he queried it. The failure to respond in early November 2023 suggests that performance concerns were not the real reason for the failure to pay. Even if the respondent did not get round to giving the claimant this explanation for not awarding the pay rise in November 2023 when it was first queried, this explanation was never given to the claimant.[62]I find that the criticisms of the claimant’s performance have been made after the event in order to challenge his entitlement to the pay rise. There is no evidence of any communications indicating that he was at risk of losing the pay rise or that he had failed to qualify for it. The amount of the pay rise is £250 per month gross. Unlawful deductions from wages – holiday pay[63]I find that the claimant’s annual holiday entitlement was 30 days to include bank holidays, with an extra day on his birthday. In the holiday year until 22 December 2023, when he started that period of holiday, he had taken 23 days holiday. He then took further holiday, exhausting the remainder of his entitlement. He had requested the additional days as unpaid leave but was told he could take these as paid leave.[64]There is a distinction between the holiday calculation which is made during the course of an employee’s employment and the final reckoning of holiday entitlement at the end of the employment. In December 2023, the claimant still had holiday entitlement to use up and should have been paid in full for that month. If his employment then terminated before the end of the Case No: 6002790/2024 11 holiday year and he had taken more holiday than he was entitled to as at the termination date, the respondent would be entitled to reclaim the value of overpaid holiday entitlement. The respondent, however, is not entitled to withhold holiday taken within the annual entitlement simply because it had not yet accrued. By making the deduction in December 2023 from the claimant’s pay in respect of ‘overtaken holiday’, the respondent acted in breach of contract at the time. The amount of the deduction was £601.76. Unlawful deductions from wages – January 2024[65]The amount shown on the January 2024 payslip does not match the amount received by the claimant in his bank account. The respondent has not provided an explanation for this discrepancy which comes to £792.38. Unlawful deductions from wages – February/March 2024[66]I make no award in respect of February and March 2024 as the claimant did not provide the respondent with work and is therefore not entitled to be paid. Unlawful deductions from wages – pension contributions[67]I find that the respondent failed to make the pension contributions it was required to make as part of the claimant’s contractual entitlement. Pension payments were not paid after October 2023. However, I am satisfied with the evidence of the pension provider that this situation was ultimately rectified. I find that the communication with the claimant in respect of this matter was inadequate. Approved by: