Miss Z Zhou v Wind financial Information UK Ltd: 6003436/2024

EMPLOYMENT TRIBUNALS
Case No 6003436/2024
Between
Miss Z ZhouClaimantWind financial Information UK LtdRespondent
Before
Employment Judge K LoraineMr Street (instructed by solicitor) for claimantDate 19 February 2025

JUDGMENT

Under the provisions of Rule 69, the Judgment sent to the parties on 21 January 2025 is corrected on 7 February 2025 as set out in bold and underlined type in paragraph 2 below. Wages[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in the periods August to October 2022 and February 2023 to March 2024 comprising underpayments of basic salary (and associated employer pension contributions at 7%).[2]The respondent shall pay the claimant £19,183.57, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance as appropriate. Written Itemised Pay Statements[3]This claim is dismissed upon withdrawal by the Claimant. Non-compliance with ACAS Code[4]The respondent did not unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and no uplift is made to the compensatory award payable to the claimant in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992. JUDGMENT having been sent to the parties on 21 January 2025 and written reasons having been requested in accordance with Rule 60(4)(b) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

[1]The issues were clarified with the parties at the outset of the hearing, and, on a number of occasions throughout the hearing Mr Street further clarified the way the claims were pursued.[2]The Claim for a failure to provide itemised pay statements was withdrawn by the Claimant. Unauthorised deductions from wages[3]This claim was pursued on the basis that the Claimant alleged a contractual right to be paid £5,500 gross basic pay each month from August 2022 onwards together with 7% employer pension contributions on that pay. The issues to be determined were therefore:a. What was the Claimant’s contractual entitlement in respect of basic pay form August 2022 onwards? i. What were the provisions of the Claimant’s contract of employment entered into on 14 March 2022? ii. Was the Claimant’s contract of employment varied by agreement in relation to entitlement to basic pay by her signing her acceptance of the Sales Policy in 2022 and/or in 2023?b. Was the Claimant paid less than that amount on any occasion from August 2022 to April 2024?[4]Although the Claimant had previously indicated that she advanced claims in relation to other types of deductions, Mr Street confirmed that the Claims were limited to those two matters, subject to my decision in relation to the scope of the claim addressed below. Scope of the Claim[5]During closing submissions Mr Street sought to argue that the claim also included a claim in respect of unpaid employer pension contributions during the first two months of the Claimant’s employment (March and April 2022). Ms Zhou objected to this aspect of the claim on the basis that it was not contained in the Claim form and therefore had not been dealt with by the Respondent, although she said the reason for this was that the pension regulations in the UK do not require pension contributions to commence immediately and that is why they were not started until month 3.[6]No application was made to amend the claim to include an additional claim for pension loss in the event I find that it does not form part of the current claim before the Tribunal. Applications to adduce late documents and evidence[7]The Respondent sought to adduce a number of additional documents at the outset of the hearing and during the hearing. These included;a. Copies of the ‘signature page’ in relation to the Sales Policy documents from 2022 and 2023b. Two short videos said to show the signing of the Sales Policy documents by the Claimantc. A screenshot of a messaging app with a typed translation[8]The Claimant did not object to the inclusion of these documents which appeared to be relevant to the issues to be determined and I therefore allowed them to be admitted into evidence.[9]The Claimant sought to adduce a document which was said to be a contract of employment of another employee of the Respondent. The Respondent objected to the inclusion of this document and I refused the application. I gave oral reasons for my refusal, in brief the document was marked as confidential, was unsigned and incomplete and did not appear to me to be relevant to the issues to be determined. I refused the application.[10]The Claimant also sought to adduce a document which was written in Chinese, however I also refused that application on the basis that a translated version of the document had not been provided.[11]The Claimant had indicated an intention to seek to adduce a second witness statement which commented on the additional Chinese document, but did not pursue that application and I did not consider that second statement.

The Law

[12]The right not to suffer an unlawful deduction from wages is set out in the Employment Rights Act 1996. The relevant parts of this are found in s13 which states:[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. (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. 13. For the purposes of claims under s13 and s23 ERA, ‘wages’ are defined by s27 ERA in the following terms: ‘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 …’[14]Whether there has been a deduction for the purposes of s13(3) ERA depends upon whether the sums claimed were properly payable. To establish that wages are properly payable a Claimant must establish a legal entitlement to the payment in question (New Century Cleaning Co Ltd v Church [2000] IRLR 27, CA). Whilst a legal entitlement need not necessarily be contractual, a legal entitlement will be contractual in the vast majority of cases.[15]The claimant relies on an express term of the written contract of employment it is agreed was entered into on 14 March 2022. The Respondent asserts that the terms as to payment were varied by agreement and relies on two ‘sales policy’ documents as to the varied terms.[16]Where a contract restricts the ability of the parties to subsequently vary it, such as by precluding oral variations, the Supreme Court has found this will be effective to render purported variations which do not comply with the conditions ineffective; Rock Advertising Ltd v MWB Business Exchange Centres Ltd 2019 AC 119, SC. Further, in order for a purported variation to be effective in relation to an employee, they must be aware of what they are agreeing to and an employer must sufficiently draw the employees attention to the change that is being proposed to their terms and conditions Cowey v Liberian Operations Ltd 1966 2 Lloyd’s Reports 45. The Evidence and submissions[17]The Employment Tribunal heard from the claimant who gave evidence on her own behalf and was cross examined.[18]The Respondent did not call any witness evidence and had not produced any witness statements.[19]The Employment Tribunal were also provided with a bundle of documentary evidence. References to page numbers are to pages of that bundle unless otherwise stated.[20]In addition to the evidence, the Employment Tribunal heard oral submissions from both parties.

Findings of Fact

[21]A number of matters were not in dispute. It is agreed that the Claimant commenced employment with the Respondent on 14 March 2022 as a sales and account executive and that she was provided with and signed the document at page 19 described as her contract of employment.[22]It is admitted in the Response that the Claimant was informed that she had passed her probation on 4 August 2022.[23]It was further agreed that the Claimant was contractually entitled (from August 2022 onwards) to employer’s pension contributions on her gross basic pay at 7%. The Scope of the Claim[24]On review of the Claim form and particulars of claim, in my view Ms Zhao is correct that the claim currently before the Tribunal does not include any complaint about a failure to pay employer’s pension contributions in respect of March and April 2022.[25]There is no complaint at all about deductions from wages prior to August 2022 and no suggestion of any separate complaint about employer’s pension contributions not being made at all in respect of any period. The claim as contained in the Claim form and Particulars in relation to contributions was in relation to the period August 2022 onwards and was in relation to the amount of contributions paid. This has now been clarified and it is agreed that the claim in relation to pensions contributions from August 2022 onwards, is limited to the contributions that would have been payable on any shortfall to basic pay i.e. it is a contingent claim.[26]On that basis the claim Mr Street sought to advance in relation to pension contributions during the first two months of employment is not before the Tribunal and I therefore have no jurisdiction to consider it. The Contract of Employment[27]The Contract of Employment contained the following material terms: 3. PROBATIONARY PERIOD3.1 The Employee shall be required to undergo a probationary period of six (6) months beginning on the commencement date of this employment (the “Probation Period”) prior to confirmation by the Company of the Employee’s employment at any time during and up to the expiry of the Probation Period, unless terminated earlier pursuant to the terms of this Agreement and the applicable laws.3.2 The Company shall be entitled to, at its absolute discretion:(a) confirm the Employee’s employment with the Company and end the Probation Period of the Employee with immediate effect by notice in writing; or(b) extend the Probation Period required to be undergone by the Employee to such period as the Company thinks fit.3.3 Unless otherwise expressly stated to the contrary, the remaining provisions of this Agreement shall have full effect to the extent applicable and apply in the same manner during the period for which the Employee is undergoing the Probation Period and following confirmation of the Employee’s employment by the Company. 6. REMUNERATION6.1 In return for the employment by the Company of the Employee under the terms and conditions herein, the Company agrees to pay to the Employee a gross monthly salary which includes basic pay and allowance of: (a) £4800 for basic pay during the probation period; and (b) £5500 for basic pay confirmation of the Employee’s employment with the Company.6.2 Notwithstanding anything to the contrary in this Agreement, all compensation payable to the Employee by the Company (under this Agreement or otherwise) is subject to limitation or modification to the extent reasonably deemed necessary by the Company to comply with law, including compensation-related standards implemented by regulatory authorities.6.3 Apart from the remuneration stated in Clause 6.1, the Employee may, from time to time, be eligible to receive additional payments for bonus and other benefits (whether under this Agreement or otherwise). For the avoidance of doubt, the Employee’s eligibility to receive the foregoing payments shall be determined at the sole and absolute discretion of the Company (which may modify, suspend or discontinue such payments at any time whether generally or in relation to the Employee for any reason whatsoever) and on such criteria as the Company may decide from time to time in its sole and absolute discretion, provided always that, the Employee shall not be considered for any such payments while serving out any period of notice, either given or received, or having ceased employment without giving notice.6.4 For the avoidance of doubt, the Company shall not be liable to pay or reimburse to the Employee any salary, costs, charges or expenses incurred by the Employee in carrying out the Employee’s obligations under this Agreement save any such payments expressly stated to be due to the Employee in accordance with the provisions herein. 11. POLICIES AND PROCEDURES 11.1. The Employee agrees that the Employee shall comply, at all times during the term of his employment, with the internal policies, practices and procedures (including any amendments to the same) of the Company in effect from time to time. 11.2. The employee is subject to our policies and grievance procedures, which are both set out in the company’s internal network at home.wind.com.cn. The updates of the policies will b made online. For the avoidance of doubt, these policies and procedures do not form part of your contract of employment. 11.3. The Employee acknowledges that the Company’s policies relating to the use of email and the internet form part of this Agreement. Failure to comply with the terms of such policies will render the Employee liable to disciplinary action (which may include summary dismissal) in accordance with the laws and the Company’s disciplinary procedure from time to time. 23. ENTIRE AGREEMENT 23.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 23.2. This Agreement embodies the entire understanding of the parties and there are no promises, terms, conditions or obligations, oral or written, express or implied, other than those contained herein. This Agreement shall not be modified except by an instrument in writing signed by the duly authorised representatives of the parties. 24. VARIATION 24.1. No variation or agreed termination of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).[28]Taking the contractual terms at face value the position is straightforward; from the point at which the Claimant passed her probation (agreed to be 4 August 2022) she was entitled to gross basic pay of £5,500 per month under clause 6.1.[29]She may have received, in addition to basic salary, other sums under clause 6.2, but these were separate from basic pay and there was no contractual entitlement to anything beyond basic pay.[30]Under clause 11 the company’s policies in relation to email and internet usage were incorporated into the contract, but no other policies formed part of the contract.[31]The effect of clauses 23 and 24 are that no other source (oral, written etc) in existence prior to the singing of the contract had any effect on the terms of the contract and no variation of the contract could be made without a written agreement, signed by both parties. The Sales Policy Documents[32]The Claimant disputes ever seeing the sales policies relied upon by the Respondent. The respondent has produced a translated copy of the sales policies from 2022 and 2023 but has not produced the original documents. The translations are said to have been undertaken by the Respondent’s legal department but no information has been provided as to the identity or qualifications of the interpreter and it is agreed that the translations are not certified. No evidence was called by the Respondent to verify the contents of the documents.[33]On the face of those documents the policies provide that employees salaries will vary, according to an assessment of their performance, from a basic salary of £4,000 per month up to a maximum of £5,500 per month. However, the documents are lengthy, the document said to be the translated version of the 2022 Policy is some 31 pages long [659] and deals with a broad range of issues relating to the Respondent’s global sales business. The policy relates to the training and management of staff, the organisation and distribution of work as well as performance management. While it does deal with pay, it covers the reimbursement of expenses, discretionary bonuses and commission payments in addition to the provisions related to levels of basic pay.[34]The Respondent has produced a signature page in relation to each policy which they say shows the Claimant’s signature and videos which they say show the Claimant signing each document. The Claimant agrees that she is pictured in the videos signing a document, but does not agree that the documents she signed are the same in substance as the translated documents produced by the Respondent. The Claimant accepted that her signature is shown on the ‘signature’ page dated 2023, but disputes that her signature appears on the document dated 2022.[35]The Claimant’s evidence, which was not challenged, was that she was not sent a copy of the documents shown in the videos, either before or after she signed them, and she was not given any time to read them prior to signing, so she does not know what they contained. The documents she was presented with and signed were in Chinese. It was put to the Claimant that the documents were published on the Respondent’s internal website, however the Claimant’s evidence was that she had looked at that website and these policy documents were not there. No screenshots had been disclosed by the Respondent to evidence that the policies were available on the intranet at any particular point in time.[36]Having viewed the videos I accept the Claimant’s evidence that she was not given a copy of the document she was asked to sign and that she was not given any opportunity to read the document before signing it on either occasion; the videos show employees being led to a desk where two copies of a document are already present and being required to quickly sign both copies before leaving so that the next employee can be brought in to sign. In the absence of any screenshots or any witness evidence from the Respondent in support of their case that the policies were available on the intranet, I also accept the Claimant’s evidence that when she looked, the policies were not there.[37]The Respondent has also produced screenshots which they say show the Claimant attended meetings about the sales policy in 2022 and 2023. The Claimant accepts that she attended the meetings, but denies that the details of the sales policy in the translated documents that the Respondent now relies on, in particular in relation to any effect on basic salary, was raised during those meetings. The screenshots simply show that employees attended an online meeting, they provide no information as to the contents of the meeting.[38]The Claimant’s evidence was that she was aware her pay could vary based on commission payments, but these were paid under the heading of ‘allowance’ on her payslip, which also covered other things such as reimbursement of expenses. Her pay would also vary because pay would be deducted if she was absent from work due to illness or attending medical appointments. She was clear and consistent in her evidence that she never knew and was never told that her basic pay had been or would be reduced or that it would be variable based on her performance and she never agreed to this. The Claimant’s performance and complaints about pay[39]The Respondent also produced documents which they say show the Claimant’s performance was objectively poor during her employment [543,545] and that in light of this her salary was adjusted in accordance with the sales policy. When these documents were put to the Claimant she disputed that she had been shown them during her employment and did not agree that her performance had been poor. The Claimant said that she had not been made aware there was a sales target that would affect her basic pay and that no one had told her that she was failing to meet sales targets, or not visiting enough clients, until a few days before she was dismissed on 8 February 2024.[40]The Respondent was not able to point to any document in the bundle which showed the Claimant being notified of any issue with her performance or being notified that her pay would be reduced because of performance prior to the discussions leading to the Claimant’s dismissal around 8 February 2024 February 2024.[41]It was put to the Claimant in cross examination that she had not raised complaints about her pay during the course of her employment, in response the Claimant said she had raised issues with her manager Han Dan as shown in a screenshot on page 43 of the bundle. The Respondent subsequently provided a further screenshot said to be of a longer extract of that conversation, with a typed translation attached. However, the translation provided by the Respondent was disputed by the Claimant. In the absence of a certified translation it is not possible for me to resolve the dispute in relation to this document. I therefore attach little weight to both versions of this document to the extent that it is not agreed. I note that it is agreed that the Claimant raised an informal query about her pay being lower than expected in March 2023 and did not raise any further complaints after that date until after she had been dismissed.[42]The Claimant’s evidence was that there were often delays in her payslips being provided and that she had not received some of them until after her employment ended. Discussion and Conclusions[43]I found the evidence of the Claimant credible and reliable. She was, at times robustly, challenged and gave clear and consistent evidence that she had never been made aware of any change to her contract which would either reduce her basic pay, or tie her entitlement to basic pay to her performance. She was equally clear and consistent that prior to her dismissal, she had never been made aware of any actual dissatisfaction with her performance or notified of any reductions to her pay being made for that reason. Her evidence on that point was supported by the lack of any record of performance concerns being raised wither her between August 2022 and January 2024.[44]I find that the 2022 Sales Policy was not incorporated into the Claimant’s contract of employment when this was signed by the parties on 14 March 2022. This is because, on the Respondent’s own case, the document was not presented to the Claimant until May 2022. I also note that under clause 11 of the contract the Sales Policy would not have had contractual effect, even if it had been in existence as at that date.[45]I find that on balance of probabilities, it is likely that the videos do show the Claimant signing a version of the sales policies, because this is consistent with the Claimant having recently attended meetings about the policies and she has not suggested that it was any other document that she signed (indeed the Claimant fairly accepted she does not in fact know whether the document she signed was a copy of the sales policy or not), but it is clear from the video that there was no real opportunity for the Claimant to read the contents of the document before singing it on either occasion. No evidence has been provided as to contents of the personnel meetings relating to the policy and on balance I accept the Claimant’s evidence that she was not made aware that the policy purported to have the effect of reducing her basic salary entitlement by any means prior to signing the document on either occasion.[46]In relation to the terms of the Sales Policy documents that the Claimant signed, I attach little weight to the contents of the translated sales policy documents in the bundle, in the absence of a certified translation and of any evidence being called to substantiate that the document signed by the Claimant had the same contents as the translated document. No evidence was available to the Tribunal as to the contents of the documents signed by the Claimant.[47]I note that the purported variation to the Claimant’s contract would have been very onerous and entirely against the Claimant’s interests. It was in essence a substantial reduction in her salary entitlement with nothing additional being offered by the Respondent. It would have been incumbent upon the Respondent to clearly draw the Claimant’s attention to the fact that it was proposing to vary her contract of employment to reduce her entitlement to basic pay.[48]I also note that the Sales Policy documents do not state, on their face, that they are a variation of contract (or any other words to that effect) and they were not signed by or on behalf of the Respondent. On the contrary they are purported to be ‘policy’ documents.[49]I therefore find that the terms as to basic salary contained in the translated copies of the Sales Policy documents of 2022 and 2023 in the bundle were not agreed by the Claimant and were not effective to vary the Claimant’s contractual entitlement to basic pay.[50]As the Sales Policy documents are not policies relating to email or internet use, I also find they could not, as policy documents, be regarded as incorporated into the Claimant’s contract of employment as this would conflict with the clear and unambiguous language of clause 11.[51]In light of those findings the Claimant’s entitlement to basic pay was, from August 2022 onwards, gross pay of £5,500 per month. Quantum[52]The parties agreed that the payslips provided in the bundle reflect payment in effect 2 months in arrears i.e. a payslip relating to April, paid at the end of April, will in fact be payment for work done in March etc.[53]The parties further agree that the contents of the payslips in the bundle is correct in showing the basic pay received by the Claimant. It is further agreed that this is shown on the payslips as ‘monthly pay’.[54]Ms Zhao sought to argue that sums paid to the Claimant shown on the payslips as ‘allowance’ ought to be brought into consideration when considering whether the Claimant’s basic pay was less than £5,500 on any given occasion, on the basis that there were occasions where due to payments under this heading, the Claimant actually received more than £5,500 gross pay in a month.[55]Mr Street’s position was that the allowance payments were separate to basic pay, as set out in the contract of employment and could not be off-set against basic pay.[56]I accept Mr Street’s submission on this point, the contract clearly envisages additional sums being paid by way of commission and expenses, for example, which would naturally vary month to month. Indeed, Miss Zhao accepted this and referred to it when explaining why payment was made two months in arrears (as this was necessary to allow commission to be calculated). This is in my view clearly a separate aspect of the Claimant’s pay and having been declared and awarded to the Claimant each month, gave rise at that point to a separate entitlement to be paid. It cannot be brought to bear in relation to any shortfall of basic pay.[57]The Claimant relies on the table at page CC of the bundle in relation to the amount by which her basic pay fell short of £5,500 between August 2022 and April 2024. However, in light of the agreed position that the payslips actually relate to the previous month’s pay, the first payslip relating to the period the Claimant was entitled to £5,500 monthly pay is the September 2022 payslip (month 9 in the table).[58]On that basis I find that the Claimant’s gross basic pay was less than £5,500 between August and October 2022 and between February 2023 and March 2024 as set out in the payslips related to those months in the bundle (the payslip relating to the subsequent month is the relevant document). I also note that the table is wrong in relation to the total gross basic pay paid in October 2023, as this was actually £4,500 as shown by the payslip at page 123. Subject to those corrections, I accept that the table at page CC accurately reflects the monthly shortfalls.[59]The Claimant is also entitled to 7% employer contributions on the shortfall.[60]The losses in each month are therefore as follows:
gross basic payshortfall7% pension contributions
2022 Sept£4,500.00£1,000.00£70.00
Oct£5,000.00£500.00£35.00
Nov£5,000.00£500.00£35.00
Dec£5,500.00£0.00£0.00
2023 Jan£5,500.00£0.00£0.00
Feb£5,500.00£0.00£0.00
Mar£4,500.00£1,000.00£70.00
Apr£4,500.00£1,000.00£70.00
May£4,500.00£1,000.00£70.00
Jun£4,500.00£1,000.00£70.00
Jul£4,500.00£1,000.00£70.00
Aug£4,500.00£1,000.00£70.00
Sept£4,500.00£1,000.00£70.00
Oct£4,500.00£1,000.00£70.00
Nov£4,000.00£1,500.00£105.00
Dec£4,000.00£1,500.00£105.00
2024 Jan£4,000.00£1,500.00£105.00
Feb£4,000.00£1,500.00£105.00
Mar£4,000.00£1,500.00£105.00
Apr£1,142.86£428.57 £17,928.57 £1,255.00 £19,183.57£30.00
[61]I calculate the gross sum due is therefore £19,183.57. I apologise to the parties for the slight error in the final gross sum communicated to them on the day of the hearing and set out in the Judgment, which appears to have been typographical. A corrected judgment will be sent to the parties together with these Reasons. Non compliance with the ACAS code[62]Mr Street did not pursue this element of the Claim in submissions. The Claimant did not make a formal grievance during the course of her employment and therefore I find there was no failure to comply with the code and consequently make no uplift to the award of compensation. EMPLOYMENT TRIBUNALS Claimant: Miss Z Zhou Respondent: Wind financial Information UK Ltd Decision on reconsideration Rules 68-71 of The Employment Tribunals Rules of Procedure 2024 The application for reconsideration is refused as there is no reasonable likelihood of my underlying judgment being varied or revoked. I am satisfied that a hearing is not necessary for me to determine this application.

Findings of Fact

[1]I have carefully considered the Respondent’s application, dated 7 March 2025, for reconsideration of the Tribunal's corrected judgment dated 19 February 2025, with written reasons sent to the parties on 21 February 2025.[2]The Respondent raises several matters in seeking reconsideration, including alleged factual inaccuracies, misapplication of the law, failure to consider certain evidence, and impact of the judgment. I have reviewed each of these contentions considering my hearing notes and the evidence to which I was directed at the hearing or in submissions.

The law

[3]Rules 68-71 of The Employment Tribunals Rules of Procedure 2024 provide the legal framework for reconsideration of Employment Tribunal judgments.[4]Rule 68 states that the Tribunal may reconsider any judgment where it is necessary in the interests of justice to do so, either on its own initiative or on application by a party. The original decision may then be confirmed, varied or revoked.[5]Under Rule 69, except during a hearing, an application for reconsideration must be made in writing within 14 days of the later of the written record of the judgment or any separate written reasons being sent to the parties. The application must explain why reconsideration is necessary.[6]Rule 70 requires the Tribunal to consider any reconsideration application. If there is no reasonable prospect of varying or revoking the original decision, including where a similar prior application was refused, the application must be refused and the parties informed.[7]Otherwise under Rule 70, the Tribunal must notify the parties, seek their views on whether a hearing is needed, and reconsider the decision at a hearing unless unjustified. Without a hearing, the parties can make further written representations.[8]Where the Tribunal proposes reconsidering a decision on its own initiative, it must notify the parties of the reasons and then follow the same process as under Rule 70.[9]In summary, the Rules permit reconsideration of judgments either on application within 14 days showing it is in the interests of justice, or by the Tribunal's own initiative. The Tribunal must consider applications, allow party views on a hearing, and hold a hearing unless unjustified, reconsidering the original decision which may then be confirmed, varied or revoked.[10]This process ensures reconsideration occurs only where properly justified, balancing finality with flexibility to revisit decisions when essential in the interests of justice. The stringent test of necessity must be met, which the Tribunal must carefully assess.[11]The interests of justice tests continue to follow the principles established in cases like Ladd v Marshall and Outasight, requiring the applicant to show any fresh evidence is relevant and credible, and would likely change the result.[12]As cases like Flint confirm, there is discretion to admit fresh evidence where the Ladd v Marshall test is not fully met, if there are mitigating circumstances relating to the failure to obtain the evidence originally.[13]However, the strong public interest in litigation finality, as emphasised in Ebury Partners, means parties cannot reopen matters they had a fair chance to argue originally. Failing to make arguments does not generally justify reconsideration.

Findings

[14]Upon thorough re-examination, I do not consider there to be any material errors or deficiencies in the Tribunal's judgment which would warrant reconsideration in the interests of justice. The judgment accurately reflects the factual evidence before me, the legal principles argued, and the reasoning underlying my decision upholding the claim.[15]The Respondent raises what it characterises as ‘legal and factual errors’ in its application. However, any discrepancies highlighted represent differing interpretations of the evidence rather than objective errors. The Tribunal was entitled to form its own views on the factual evidence and witness credibility based on the material presented at the hearing. That the Respondent continues to take a contrary perspective on the facts does not necessitate reconsideration or vary the Tribunal's findings.[16]For example, Respondent disputes the Tribunal's findings regarding the Claimant not being made aware of, or agreeing to, any amendment to her contractual entitlement to pay. However, the Tribunal was entitled to form its own view on these matters based on the evidence presented at the hearing. The Respondent’s contrary opinion does not demonstrate any factual inaccuracy by the Tribunal.[17]I am fully satisfied that the relevant legal principles on contractual interpretation, implication of contractual terms, breach of contract and unauthorised deductions from wages were properly understood and applied by the Tribunal. No misdirection of the law has been demonstrated that would justify revisiting the judgment. The authorities cited in the application were not cited during the Tribunal hearing and do not support the assertion of any error of law.[18]The Respondent argues the Tribunal misapplied the law regarding implied terms. However at the hearing, the Respondent did not in fact rely on an implied term, but rather on there having been an express variation of the contract, which I found had not been effective. The Tribunal was entitled to form that conclusion based on its factual findings regarding the terms of the Claimant’s contract of employment (including the ‘entire agreement’ clause and the clause prohibiting any variation that was not in writing and signed by both parties) and the circumstances in which the Claimant signed the Sales Policies.[19]The Respondent alleges a serious procedural irregularity because I found I could attach little weight to the English translation of the Sales Policy document relied upon by the Respondent. However I was entitled to place such weight as I saw fit upon that document in circumstances where the Respondent called no evidence to substantiate its’ case, had not disclosed the original document and the contents of the document were not agreed. In any event, my finding that there had been no variation of the Claimant’s contractual entitlement to pay was not dependent upon the specific contents of the Sales Policy documents but rather based on the fact that variation by such means was precluded by the terms of the contract of employment as explained in the Reasons.[20]Careful review further indicates the judgment addressed all the pertinent evidence in the case comprehensively. No significant matters were overlooked that could realistically have altered the Tribunal's conclusions, which were reached after deliberation drawing on the full evidence and submissions.[21]I do not accept the Respondent’s submission that the Tribunal failed to consider the Sales Policy documents or their effect. The Tribunal explicitly considered this issue in depth but found there had not been an effective variation of the Claimant’s contract of employment. This finding was reasonably open to the Tribunal on the material before it.[22]While alternative findings may have been available, I am fully content the Tribunal acted within its proper discretion to assess the facts and apply the relevant law in reaching the determinations it did, for reasons explained in detail. The judgment reflects a fair and thorough evaluation of the parties' competing positions.[23]While I note the Respondent’s concerns in relation to potential wider implications of the judgment, this is not pertinent to the Tribunal’s consideration (either of the initial claim or of this application).[24]In conclusion, having reviewed the reconsideration application, I do not consider the high threshold of demonstrating reconsideration is necessary in the interests of justice under Rules 68-71 has been met. The Respondent’s disagreements with the Tribunal's factual findings and interpretation of the evidence do not satisfy the stringent test for revisiting the judgment. The application for reconsideration of the judgment dated 19 February 2024 is therefore refused.