Miss E Taylor v Freightport Logistics Ltd: 6007062/2024 Miss E Taylor v Freightport Logistics Ltd: 6007062/2024
EMPLOYMENT TRIBUNALS
Case No 6007062/2024
Between
Miss E TaylorClaimantFreightport Logistics LtdRespondent
Before
Employment Judge McGoughIn person for claimantDate 11 June 2025
JUDGMENT
[1]The Claimant’s complaint of unauthorised deductions from wages succeeds in part. Respondent made an unauthorised deduction from the Claimant’s wages in the period 1 May to 9 May 2024 (inclusive).[2]The Respondent shall pay the Claimant £704.19, which is the gross sum deducted. The Claimant is responsible for the payment of any tax or National Insurance.
REASONS
The Claimant was employed by the Respondent, a freight and logistics business, as a Team Leader. She is pursuing a claim for unauthorised deductions as follows:1.1£753.83 (gross) as her pay in respect of the period she worked between 1 and 9 May 2024;1.2 statutory sick pay (SSP) in the total sum of £186.80 for the period she was absent from work between 9 May and 24 May 2024;1.3 the Claimant was paid £39.71 (net) for the period 1 – 24 May 2024 and she acknowledges in her schedule of loss that any award should be reduced by this amount. The Respondent’s position is that:2.1 it was authorised to make deductions from the Claimant's pay for the period she worked from 1 to 9 May 2024 because the Claimant had caused the Respondent to suffer a loss due to her carelessness or negligence; and2.2 the SSP was not properly payable to the Claimant because she had not complied with the Respondent’s reporting procedure during her absence. The Respondent relies on the Claimant’s contract of employment and the Respondent’s handbook. Early conciliation started on 10 June 2024 and ended on 19 July 2024. The claim form was presented on 29 July 2024. THE HEARING The Claimant represented herself and the Respondent was represented by Miss Young, a Legal Advocate. The Respondent had prepared a 178 page bundle of documents for the hearing (Bundle). This was not agreed between the parties and the Claimant prepared a supplemental bundle of 37 pages (Supplemental Bundle). At the start of the hearing, the Claimant confirmed that she was claiming only the unpaid wages set out in her schedule of loss at pages 35 and 36 of the Bundle and that she was not claiming any other payments or loss. The Tribunal heard evidence from the Claimant and one witness from the Respondent, Miss Kerry Murray. Miss Murray was the Respondent’s Joint Managing Director and the Claimant’s line manager. The Claimant had prepared a witness statement for herself and the Respondent had prepared a witness statement for Miss Murray. The Tribunal heard submissions from Miss Young and the Claimant. ISSUES The issues to be determined by the Tribunal were agreed at the start of the hearing as follows:
ISSUES
[9.1]Were the wages paid to the Claimant for the period 1 – 31 May 2024 less than the wages she should have been paid?[9.2]If so, was any deduction required or authorised by a written term of the contract?[9.3]Did the claimant have a copy of the contract or written notice of the relevant contract term before the deduction was made?[9.4]If not authorised by a written term of the contract given to the Claimant before the deduction was made, did the Claimant agree in writing to the deduction before it was made?[9.5]If applicable, in terms of remedy:[9.5.1]How much is the Claimant owed?[9.5.2]Have the parties complied with the ACAS Code of Practice? FINDINGS OF FACT The Respondent is a freight and logistics business. The Claimant was employed by the Respondent as a Teams Leader in the Operations team. She began her employment on 18 March 2019, later being promoted to the Team Leader role. The Claimant resigned on 23 April 2024. She was required to give five weeks’ notice under her employment contract. The Claimant and the Respondent agreed a termination date of 24 May 2024. The contract of employment The Claimant was provided with a three page contract of employment which was signed by the Claimant on 8 February 2024 (Contract). The Contract is at pages 41 – 43 of the Bundle and contained the following terms relevant to this dispute (relevant extracts below only): “This document sets out your principal terms and conditions of employment as required by Section 1 of the Employment Rights Act 1996. Together with the Employee Handbook, (except where explicitly stated otherwise), it constitutes part of your employment between [the Respondent and the Claimant] […] HOURS OF WORK Your normal hours of work are 40 per week to be worked 08.30 am to 5.30 pm Monday to Friday with a 60 minute unpaid break each day. […] […] INCAPACITY FOR WORK If you are unable to attend work due to illness or injury, you will receive Statutory Sick Pay (SSP), providing you qualify for such payment. […] You must follow the reporting procedures detailed in your Employee Handbook to be entitled to any payment from the Company. […] I confirm that I have read and understand the contents of the Employee Handbook. I am aware that if I do not understand any of the contents I should speak to my Manager. I confirm that I have read and understand the final section of the Employee Handbook entitled ’Summary of our rights to deduct’ and agree that this section, along with other sections of the Employee Handbook (except where expressly stated) form part of my contract of employment. [Signed by the Claimant on 8 February 2024]” The employee handbook referred to in the Contract (Employee Handbook) is at pages 44 – 63 of the Bundle and contained the following sections (at pages 49 and 63 of the Bundle): “Reporting Absence or Lateness If you are unable to attend work, or get to work by your expected starting time, you should notify your Manager personally as soon as possible and at least by your expected start time […]. If your Manager is unavailable, ensure you speak with another member of the management team. You should inform your Manager of the reason for your absence and how long you expect to be away from work. […] You should always report your absence yourself by telephone. You should not ask another person to call on your behalf and you should not notify us by text message, email or any other medium. Failure to abide by the absence reporting procedures will normally be considered unauthorised absence and may result in the employee being liable to loss of pay for the period of absence and to disciplinary action. This will not normally be remedied by the subsequent receipt of a back-dated medical certificate. […] Absence due to sickness or injury If you are absent for a period in excess of seven calendar days, (irrelevant if these constitute your normal working days or not) you should provide us with a medical certificate from your GP […]. Such medical certificates should then be forwarded to us on a regular basis to cover the whole period of your absence. […] SUMMARY OF OUR RIGHTS TO DEDUCT WE RESERVE THE RIGHT TO RECOUP ANY LOSSES THE COMPANY INCURS IN THE CIRCUMSTANCES LISTED BELOW FROM YOUR WAGES OR ANY OTHER MONIES OWING TO YOU […] […] If we suffer any loss, fine or cost due to your actions and failure to follow our rules, procedure 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 Company. […] The above clauses are express terms of your contract of employment.” Performance improvement plan The Respondent held a performance improvement meeting with the Claimant on 23 September 2023 after it was discovered that a number of errors on her part (incomplete and inaccurate record keeping, failing to follow up on jobs, invoicing customers without their prior agreement, and failing to inform the Respondent when errors first became apparent) had resulted in material financial losses for the Respondent. At the time of the meeting it was estimated these losses were approximately £16,000. Minutes of the meeting are at pages 65 – 72 of the Bundle. The Respondent decided to give the Claimant “another chance”. Miss Murray, Mr Andy Coulter (the Respondent's other Joint Managing Director) and Miss Teresa Minnis (HR Director) decided to 'wipe off' the losses that had been discovered up to that point so that the Claimant could start with a ‘clean slate’. A performance plan was put in place and as part of this the Respondent agreed with the Claimant that she was to address work issues promptly and discuss any concerns with Miss Murray. Details of the performance improvement plan were sent to the Claimant in a letter dated 10 October 2023 (pages 73 – 75 of the Bundle). Policy change about sickness and homeworking On 24 October, Miss Murray sent an email to all employees advising them that working from home when employees were off sick would no longer be permitted. The message re-iterated that all sickness must be reported to their direct line manager “by telephone (and not via messaging”. Employees were asked to reply to confirm they had received the email. The Claimant responded the same day stating “I have received and understand”. The Claimant’s resignation and notice period On 23 April 2024 the Claimant emailed Miss Murray to inform her that she was resigning from her employment with the Respondent. Miss Minnis responded the following day to confirm that the Claimant’s notice period was five weeks, but that an earlier leaving date may be possible if a replacement was found and trained. On 2 May 2024, Miss Minnis emailed the Claimant to confirm a leave date of 24 May 2024. See pages 76 – 78 of the Bundle. The Claimant continued to attend work as normal from the date of her resignation until 8 May 2024. On 8 May 2024 the Claimant left work during the afternoon for a doctor’s appointment at 15.45. She informed Miss Murray about the appointment on a WhatsApp message at 08.41 that morning (page 79 of the Bundle). There was some dispute between the Respondent and the Claimant about the time that the Claimant left work for the appointment, but Miss Murray was clear in her oral evidence that she had agreed to the Claimant leaving work early for her appointment that day. The Claimant explained in oral evidence that she left work half an hour before her appointment, and this is accepted by the Tribunal. On 9 May 2024 the Claimant was feeling unwell while at work. She told Miss Murray that she was not feeling well, but the Claimant was not given permission to go home. The Claimant was then sick during her lunch break. The Claimant states in her witness statement, which is accepted by the Tribunal, that she tried to call her manager but did not get through. Instead, she sent a WhatsApp message to Miss Murray at 12.53 explaining that she could not come back to work after lunch because she was being sick and felt ill. See page 80 of the Bundle. The Claimant did not return to work for the rest of the day. On 10 May 2024 the Claimant remained unwell. She sought to call Miss Murray at 08.24, but did not get through (page 5 of the Supplementary Bundle). The Claimant did not telephone another manager, as required by the reporting procedure in the Employee Handbook. Instead, she sent a WhatsApp message to Miss Murray at 08.28 to inform her she was still not feeling well and would not be going in to work. The Claimant acknowledged in the message that Miss Murray was not in work that day (Miss Murray explained in oral evidence that she was at a hospital appointment with her daughter) and the Claimant said in the message that she would “help out from home where possible unpaid as I appreciate I am sick […]”. The Claimant messaged Miss Murray again on Monday 13 May 2024, at 05.51, to tell her she was still not feeling well and would not be coming in to work. She said she hoped to be back in the next day. Miss Murray responded “OK” at
FINDINGS OF FACT
[07.37](see page 81 of the Bundle). The Claimant explained in oral evidence, which is accepted by the Tribunal, that a customer had called her about having some financial issues, which the Claimant felt she should report to Miss Murray. She therefore called Miss Murray at 09.48 for 2 minutes (page 8 of the Supplementary Bundle). The Claimant recalls speaking to Miss Murray about that work issue and that the Claimant was still not feeling well. The Claimant continued to be unwell. On 14 and 15 May 2024 she sent WhatsApp messages to Miss Murray (at 05.24 and 05.31 respectively) to inform her that she would not be attending work as she was still not feeling well. See page 82 of the Bundle. The Claimant did not return to work before her termination date on 24 May 2024. The Claimant considered that Miss Murray had shared private information about the Claimant with other staff and that this was a breach of her confidentiality. The Claimant says that she found this very stressful and as a consequence did not contact the Respondent again after 15 May 2024. The Tribunal accepts that this was the reason the Claimant decided not to contact the Respondent after 15 May 2024. Additional financial losses As part of the handover of the Claimant’s role, the Respondent discovered some errors which had resulted in additional financial losses for the Respondent. In her witness statement (paragraph 24), Miss Murray states these additional losses amounted to £21,760.01 and they are set out at page 91 of the Bundle. Miss Murray explained in her evidence that some of these errors had occurred before the Claimant's performance improvement meeting in September 2023 but had not been disclosed by the Claimant at that time, and that some of the losses were incurred after October 2023. The Respondent considered that these losses were caused by the Claimant’s ‘continued negligence’. The Claimant disputed this assertion by the Respondent, explaining that a number of the jobs highlighted by the Respondent as resulting in losses were either not her shipments or the errors were not caused by her. The Tribunal has carefully considered the parties’ evidence on this point.[26.1]The Respondent did not provide a detailed explanation of how the Claimant caused each of the losses outlined on page 91 of the Bundle in Miss Murray’s witness statement or in oral evidence. Some detail was provided by the Claimant and Miss Murray in oral evidence in respect of some of the losses, as outlined below.[26.2]Job number 1286706 (£3,319.52) – The Claimant disagreed that she was responsible for this shipment or the error that resulted in a loss. She agreed she was involved in the shipment but not that she was responsible for it, particularly given the initial emails relating to the shipment itself were all with another employee. The Claimant’s position was that the VAT error in this shipment was not her error, but an error made by the other employee. Miss Murray accepted in oral evidence that the error may have been made by the other employee but maintained that the Claimant was responsible for the other employee (because they were an apprentice), and therefore ultimately the Claimant was responsible for the error (pages 137 – 160 of the Bundle). No corroborating evidence was provided by the Respondent to show that the Claimant was responsible for the actions of the apprentice and therefore the Tribunal is not persuaded that the Claimant was responsible for this error.[26.3]Job number 1295529 (£286 – “Strut Climatech”) – The Claimant missed a booking which she accepted was a mistake in an email on 8 April 2024. The Claimant sent this email in response to an email from Miss Murray on 2 April 2024 informing her about the issue. The Claimant explained she was not aware of the error until Miss Murray told her about it. In her oral evidence Miss Murray accepted that “we’ve all missed a booking”. The Tribunal therefore finds that whilst this may have been an error by the Claimant, it was an error that other employees also make and so was not carelessness or neglect on the Claimant's part.[26.4]Job number 1281276 (£4,799.74) – The Claimant explained that this shipment was not completely hers and that there were only parts of it where she was involved in the shipment. This was not challenged by the Respondent.[26.5]Job number 1294268 (£550) – When asked by the Tribunal how the Claimant had caused this loss, Miss Murray said that the Claimant had failed to make a booking so the Respondent had to pay for a special delivery instead. However, there is no corroborating evidence in the Bundle to show that this was caused by the Claimant. There is an email from Miss Murray to Miss Minnis stating that this was a loss caused by the Claimant missing a booking, but this was dated 9 July 2024, over one month after the deduction had been made from the Claimant’s final pay. Deductions from final pay The Respondent recorded the Claimant’s absence from 10 – 24 May 2024 as unauthorised absence because it considered that the Claimant had not followed the Respondent’s procedure for reporting sickness. The Tribunal accepts the Respondent’s evidence on this point. The Claimant did not report her absences by telephone to Miss Murray (or another manager if Miss Murray was not available) despite this being very clearly set out in the Contract and the Employee Handbook. Miss Murray therefore decided that the Claimant was not entitled to SSP for this period of absence, under the terms of the Contract and the Employee Handbook. The Respondent considered that it had the right under the Contract and Employee Handbook to deduct monies from the Claimant’s pay in respect of the losses that it considered were due to the Claimant’s actions (see paragraphs 11, 12 and 25 above). It therefore withheld £600 from the Claimant’s final wages, paying her only £39.71 for her final month's salary – see page 173 of the Bundle. Miss Murray was not sure why this particular figure was chosen, she thought it had most likely been because the Respondent’s payroll provider had advised the deduction of a round number. The Claimant’s employment terminated on 24 May 2024. On 29 May 2024 the Respondent wrote to the Claimant explaining that she would not be paid any sick pay and that the costs of losses to the business resulting from ‘errors found’ would be deducted from her pay. The Respondent did not give any details of the errors or the amount that would be deducted from the Claimant’s final pay. The letter concluded by asking the Claimant not to nominate the Respondent as a referee for any future employment. (Page 87 of the Bundle.) THE RELEVANT LAW The relevant statutory provision is in section 13 ERA, 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.(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. Section 23 ERA provides a right for a worker to present a complaint to the Employment Tribunal that their employer has made an unlawful deduction from their wages, contrary to section 13. The case of Delaney v Staples (t/a De Montfort Recruitment) 1991 ICR 331 is authority that an Employment Tribunal has jurisdiction to resolve any issue necessary to determine whether a sum claimed under section 13 of the ERA is properly payable, including an issue as to the meaning of the contract of employment. In the case of Agarwal v Cardiff University and anor 2019 ICR 433 it was confirmed that Employment Tribunals have the power to interpret contractual terms to determine claims for unauthorised deductions from wages. For wages to be "properly payable" under section 13(3), the worker must have a legal, but not necessarily contractual, entitlement to them - New Century Cleaning Co Ltd v Church [2000] IRLR 27. An expectation of payment in the normal course of events is not enough by itself. When an employer relies on a contractual provision authorising a deduction, the Tribunal is required to scrutinise the contractual term carefully to ensure that it authorizes the deduction in question and the clause must also be enforceable at common law. It is important to focus on the precise words of the express contractual term - Guthrie v Scottish Courage EAT 0788/03. A contractual provision allowing for a deduction from wages should be “subject to a considerable degree of scrutiny” by the Tribunal, due to the possible vast disparity in economic power between employers and employees – Yorkshire Maintenance Company Ltd v Farr EAT 0084/09. The Tribunal’s jurisdiction does not stop at determining whether the employer’s reasons for making the deductions fell within section 13(1). Where there is a dispute as to the justification of a deduction, the Tribunal must embark upon a resolution of that dispute – Fairfield Ltd v Skinner 1992 ICR 836. CONCLUSIONS In the conclusions set out below, the unpaid SSP for the period of absence from 10 – 24 May 2024 (Unpaid SSP) is considered separately to the wages for the days Claimant worked from 1 – 9 May 2024, from which a deduction was made as described in paragraph 25 above (1 – 9 May Wages). (1) Were wages paid to the Claimant less than the wages she should have been paid? The first key question for the Tribunal is whether the Unpaid SSP and the 1 – 9 May Wages constituted "wages properly payable", that is, whether the Claimant had a legal entitlement to the Unpaid SSP and the 1 – 9 May Wages, applying the case of New Century Cleaning Co Ltd v Church referred to above. 1 – 9 May Wages
CONCLUSIONS
[39.1]The Claimant worked all of the 7 working days in this period, save for the time she left early on 9 May 2024 to go to a doctor’s appointment. The Claimant’s line manager, Miss Murray, agreed that she could go to the appointment and therefore the Tribunal concludes that this was an authorised absence of a few hours on the afternoon of 9 May 2024. The Tribunal is therefore satisfied that the 1 – 9 May Wages constituted “wages properly payable” under section 13(3) ERA. Unpaid SSP[39.2]The Claimant submitted that she is entitled to the Unpaid SSP because(1) she tried to call Miss Murray on 10 May 2024 and messaged via WhatsApp when she could not get through;(2) she spoke to Miss Murray on 13 May 2024 at 09.48 for two minutes to talk about a customer and being unwell; and(3) she messaged Miss Murray via WhatsApp on 14 and15 May 2024 to inform her she would be off sick. She accepts she did not contact the Respondent after 15 May 2024 and that she did not submit a fit note before the end of her employment. The Claimant submits that she stopped contacting the Respondent and did not go back to work because she considered that Miss Murray had breached a personal confidence.[39.3]The Respondent submitted that the Claimant did not have a legal entitlement to the Unpaid SSP because, under the terms of the Contract, payment is subject to complying with the Respondent’s reporting procedures in the Employee Handbook. It is the Respondent’s position that the Claimant:[39.3.1]Did not call to report illness to her line manager (or an alternative manager if Miss Murray was not available) on the days she was absent; and[39.3.2]Failed to provide medical certificates in line with company policy where an employee is absent in excess of 7 days, and that the Claimant’s absence was therefore unauthorised.[39.4]The Tribunal has examined the relevant sections of the Contract and the Employee Handbook carefully and is not persuaded that the Claimant had a legal entitlement to be paid the Unpaid SSP for the following reasons:[39.4.1]The Contract clearly states that “You must follow the reporting procedures detailed in your Employee Handbook to be entitled to any payment from the Company”[39.4.2]The Employee Handbook clearly states that:(1) employees must notify their manager by at least their expected start time;(2) if their manager is unavailable they must ensure they speak to another member of the management team; and(3) this must always be by telephone. It also clearly sets out that employees should not notify the Respondent of sickness absence by text, email or “any other medium”. Regrettably, the Claimant did not comply with these reporting requirements.[39.4.3]The Employee Handbook states that failure to comply with the reporting procedure will normally be considered unauthorised absence and may result in the employee not being paid for the period of absence.[39.5]The Tribunal therefore finds that the Unpaid SSP claimed by the Claimant did not constitute “wages properly payable” under section 13(3) ERA. The part of the Claimant’s claim which relates to the Unpaid SSP therefore fails.[39.6]As such, the Tribunal need not address the remaining issues set out at paragraph 9 above in respect of the Unpaid SSP. It considers those issues below in respect of the 1 – 9 May Wages. (2) If so, was any deduction authorised by the Contract? The second key question is whether the deduction made from the 1 – 9 May Wages was authorised by a written term of the Contract. The Claimant submits that she did not cause the errors that the Respondent says it discovered after her resignation. The Respondent submits that it was authorised to make deductions from the Claimant’s pay under the “Summary of our rights to deduct” section of the Employee Handbook, which is incorporated into the Claimant’s employment contract. This section specifically states that if the Respondent suffers any loss due to an employee’s carelessness or neglect, the Respondent will deduct the cost of the loss from any money owed to the employee by the Respondent. It is the Respondent’s position that the Claimant caused losses of £21,760.01 as set out at page 91 of the Bundle. Applying the principles in Yorkshire Maintenance Company Ltd v Farr and Fairfield Ltd v Skinner (paragraphs 36 and 37 above), the Tribunal has scrutinised the contractual provision allowing the deduction and considered the dispute between the parties in respect of the justification of a deduction – namely whether the Claimant caused the losses outlined by the Respondent by her “carelessness or neglect”. Firstly, the Tribunal finds that if the Claimant had caused loss to the Respondent due to her carelessness or neglect, the Respondent would be entitled under the Contract and the Employee Handbook to deduct the cost of that loss from money owed to the Claimant by the Respondent. The burden of proof is on the Respondent to show that the event justifying the deduction has occurred. For the reasons set out in paragraph 26 above, the Tribunal is not persuaded that the evidence provided by the Respondent shows that the Claimant caused the losses specified on page 91 of the Bundle due to her carelessness or neglect. The Tribunal therefore finds that the deduction made by the Respondent from the 1 – 9 May Wages was not authorised by a written term of the Contract. (3) Did the Claimant have a copy of the Contract before the deduction was made? The finding in the paragraph above means the issue of whether the Claimant had a copy of the Contract before the deduction was made is no longer relevant but, for the avoidance of doubt, the Tribunal is satisfied that the Claimant was provided with a copy of the Contract before the deduction was made. (4) Did the Claimant agree in writing to the deduction before it was made? The Tribunal finds that the Claimant did not agree to the deduction in writing before it was made. The Tribunal therefore finds that the Respondent has made an unauthorised deduction from the wages payable to the Claimant for the days she worked from 1 – 9 May 2024. The part of the Claimant’s claim which relates to the deduction from the wages payable for that period therefore succeeds. REMEDY(1) How much is the Claimant owed? The Claimant’s Schedule of Loss is at pages 35 – 36 of the Bundle. During the hearing, the Respondent accepted that the figures in the Schedule of Loss for monthly gross pay (£2,333.33) and daily gross rate of pay (£107.69) were correct. The Claimant should have been paid £753.83 (gross) for the 7 working days she worked from 1 – 9 May 2024 (7 x £107.69). She was paid £39.71 (net). Grossed up for the basic rate of tax (20%), that figure is £49.64 (£39.71 / 0.8). The Respondent is therefore ordered to pay the Claimant £704.19 gross (£753.83 minus £49.64).(2) Have the parties complied with the ACAS Code of Practice The ACAS Code of Practice did not apply in these circumstances because the Claimant resigned and no relevant disciplinary matters or grievances were raised. Therefore no uplift or deduction is applied under Schedule A2 of the Trade Union and Labour Relations (Consolidation) Act 1992.(3) Financial loss The Claimant is not claiming any financial loss.