A O Asiedu v Hamberley Care FV (Eastleigh) Ltd: 6009542/2025
JUDGMENT
[1]The complaint of unauthorised deductions from wages contrary to Part II of the Employment Rights Act 1996 is well-founded. The Respondent made an authorised deduction from the Claimant's wages in the sum of £613.83.[2]The Respondent is ordered to pay the Claimant £613.83 which is the gross sum deducted. The Claimant is responsible for the payment of tax or National Insurance.REASONS
[1]This is a claim for unauthorised deduction from wages contrary to section 13(1) of the Employment Rights Act 1996 (the "ERA 1996"). The Claimant worked for the Respondent as a homemaker (care assistant). She was employed by the Respondent from 05 June 2023 until 21 February 2025 following her resignation.[2]At the hearing the Claimant claimed the Respondent had unlawfully deducted a total of £2,861.83 from her wages[3]The Respondent denied the claim on the basis the Claimant had agreed to the deduction pursuant to a letter offering her employment and the terms and conditions of her employment and that £2,861.83 was lawfully deducted from her wages.[4]The Claimant was employed by the Respondent under the Skilled Worker visa route. This Government scheme is for workers from overseas, allowing them to work in the UK for an approved employer in certain eligible roles and provided they fulfill certain criteria.[5]The Respondent is an approved employer under this scheme which sponsored the Claimant to work for it.Preliminary Matters
[6]The name of the Respondent in the ETI, ACAS Certificate and Notice of Hearing was Hamberley Care Homes. I noted in the Respondent's ET3 its name was recorded as Hamberley Care FV (Eastleigh) Limited. I queried this with Mr Beasley who confirmed that the correct employer was the latter. The Claimant agreed this was the case. I therefore substituted Hamberley Care FV (Eastleigh) Limited as the Respondent.[7]This was a wages claim and was listed for a two-hour final hearing. The parties had prepared an agreed bundle of 83 pages. The Claimant provided a witness statement as did Chioma Egbochucku, the HR Compliance/Overseas sponsorship advisor for the Respondent.[8]The hearing took place on 21 November 2025 via a Cloud Video Platform. Neither party was legally represented.[9]I heard oral evidence from the Claimant and Ms Egbochucku. I also asked questions of both parties to explore their positions and the extent of their disagreement.[10]I would like to apologise to both parties for the time taken by me to provide this reserved judgment and reasons. I have been seriously unwell. Chronology, Evidence and Findings of Fact[11]The Claimant was a non-UK national who the Respondent agreed to sponsor to enable her to work as a homemaker (care assistant) at the Respondent's Alston Manor Care Home.[12]Prior to the start of her employment, the Respondent sent a conditional offer letter, dated 05 May 2023 to the Claimant (at page 37 (pdf) of the bundle) (the "Conditional Offer Letter").[13]The Conditional Offer Latter included the following: "We are pleased to offer you the following financial support 1. Rent free accommodation for your first month in the UK – Please note this accommodation is for you only, please do not bring any family members as they would not be allowed to stay in the accommodation; 2. Cash advance of £500 to be paid on commencement of employment and reimbursed over 5 months at £100 per month from your month [sic] salary; 3. CoS fee of £199; 4. Immigration Skills Charge of £1092; 5. Single flight ticket to the UK at a cost of up to £500. This will be reimbursed on sight of your flight ticket and paid on your arrival in the UK into a UK bank account.[14]CoS fee means the fee for Ms Asiedu's Certificate of Sponsorship.[15]The Conditional Offer Letter also stated that an employment contract would be sent to the Claimant once visa and leave to remain had been granted and a start date for her employment had been agreed.[16]It was also stated that: "All the above Sponsorship costs, 1 month accommodation, CoS fee, Immigration Skills Charge and flight ticket paid to you or on your behalf, would become repayable should you leave our employment within 36 months, and these will be required to be repaid/deducted from your final salary." (the "COL Repayable Costs").[17]The Claimant was required to sign and date the Conditional Offer Letter which also included the following declaration: "I understand that I will: Be required to repay insert name of employer all the relevant costs incurred above as a result of my withdrawal at any stage in the application process from the date of my Certificate of Sponsorship was assigned or if I do not take up employment within one month of successfully obtaining a Tier 2 Visa or I leave employment within 36 months of employment."[18]The Claimant by signing the Conditional Offer Letter on 06 May 2023 confirmed and agreed to its terms and conditions.[19]The bundle also contained an extract from a further offer letter (as page 75 (pdf)). During the hearing I asked to see the complete document and the Claimant forwarded this to the Tribunal office.[20]This letter dated 22 May 2023 was sent to the Claimant following the issue of her CoS and was entitled as an Offer Letter (the "Final Offer Letter").[21]The Final Offer Letter also dealt with the repayment of sponsorships fees in the following terms: "If you leave our employment or are terminated due to performance during the period of your visa (3 years) you will be required to repay all costs which the company incurred as a result of offering you sponsorship. This will include CoS, accommodation (if applicable) flight costs, transport costs (if applicable) and any other reasonable associated costs." (the "OL Repayable Costs").[22]The Claimant was required to sign and date the Final Offer Letter which also included a declaration that she had read, understood and agreed to its terms and conditions. Ms Asiedu signed and dated the Final Offer Letter on 22 May 2023.[23]For ease, I will now refer to the COL Repayable Costs and the OL Repayable Costs as the "Full Repayable Costs".[24]Ms Asiedu commenced her employment with the Respondent on 05 June 2023. The Claimant tendered her resignation on 06 January 2025 which she said was due to a lack of a career progression offered to her by the Respondent.[25]Ms Asiedu worked her notice period and left her position on 21 February 2025.[26]I find the Claimant had worked for the Respondent for under the three years stipulated in the Conditional Offer Letter and Final Offer Letter which meant the Full Repayable Costs would potentially need to be repaid by Ms Asiedu.[27]Following the Claimant's resignation, Ms Egbochuku acknowledged Ms Asiedu would be leaving her post at Alston Manor and provided her with a breakdown of the Full Repayable Costs.[28]This correspondence was at page 41 (pdf) of the bundle and included the following: "The outstanding fee is usually taken from your final salary but in this case, we may have to schedule 2 instructions in (January/February) payroll for you to be able to share the cost. Please let me know if this works for you or you would like to pay the full amount upfront."[29]The breakdown (at page 45 (pdf) of the bundle) showed the following:29.1 The CoS fee of £1291.00 was not part of the Full Repayable Costs;29.2 A cash advance (called a loan) of £500.00 had been paid and £500 was listed as being repayable; (both parties acknowledged there was confusion as to whether the cash advance had been repaid in full. However was this clarified between them prior to the hearing).29.3 Costs repayable: i. Accommodation from 03 June to 03 July 2023 - £1448.00; ii. Induction Logistics - £113.83; iii. Airport Pick Up - £300.00 iv. Agency £500.00; and29.4 Total Outstanding - £500.00 + £2,361,83 (the "Breakdown")[30]Following the Claimant's query about the cash advance repayment, Ms Egbochuku confirmed in an email dated 06 January 2025 that: "The remaining £500 pertains to the standard amount you received. Initially you were given £1000, - £500 of which was repaid in 5 instalments. The other £500 is only refundable if you leave before the specified period."[31]This cleared up the confusion about the cash advance and I find that the total of the Full Repayment Costs required by the Respondent was £2,861.83.[32]The Claimant replied the same day in an email timed at 11.56 stating: "This can be taken in full."[33]Later the same day in an email timed at 15.47, the Claimant asked Ms Egbochuku to "Please hold on with the deduction, I will get back in touch again."[34]The Claimant emailed Ms Egbochuku on 24 January 2025 raising concerns about the Full Repayment Costs claiming they were "disproportionate" and asked for them to be reviewed because she had worked for the Respondent for a long time.[35]Ms Egbochuku replied that the Respondent's policy was clear in respect of when the Full Repayment Costs crystallised and said the Respondent did not require reimbursement of the costs associated with the CoS.[36]As a result the Respondent deducted the Full Repayment Costs of £2,861.96 from the Claimant's January and February salary.[37]The Claimant emailed (24 January 2025) Trevor Beasley, the Respondent's Senior HR Business Partner with the following: "So here lies the case where the cost they're charging me wasn't fully stated, they stated rent free accommodation & airport pick up whereas they're now charging me more than half my monthly salary as rent & charging for airport pick up and induction. The current cost wasn't agreed to & was only sent to me after I submitted my resignation letter."[38]The Claimant consequently claimed:38.1 She had not agreed to the Full Repayment Costs (beyond the £1000.00 advance for which she had repaid £500.00);38.2 She has not received a breakdown of the Full Repayment Costs justifying the additional deductions; and38.3 The Respondent deducted £2386.96 from her January 2025 salary and £474.87 from her February 2025 salary.[39]The Claimant's payslips for January and February 2025 were included in the bundle (at pages 82 and 83 (pdf)) and I find as a fact that two deductions of £2386.96 and £474.87 totaling £2,861.83 were made by the Respondent.[40]In oral evidence the Claimant said she was concerned that she was not told what "reasonable costs" or "other reasonable costs" were and this showed a lack of transparency by the Respondent.[41]She confirmed when she signed the Conditional Offer Letter and the Final Offer Letter she understood what she was signing up for.[42]However she considered the Respondent had made unlawful deductions from her wages particularly in respect of what the Respondent called "reasonable costs" and that she only became fully aware of the extent of the Full Repayment Costs after she had resigned.[43]The Claimant declined to cross-examine Ms Egbochuku. I asked Ms Egbochuku for some clarification in respect of induction logistic costs and the agency costs as described in the Breakdown.[44]Ms Egbochuku said induction logistic costs related to the charge the Respondent had incurred from the travel company and the agency costs related to administration costs including training prior to the Claimant's employment commencing.[45]Both the Claimant and Mr Beasley make short final submissions reiterating their respective positions on the documentary and oral evidence.[46]On balance I find the Claimant's account in respect of what were the Respondent's "reasonable costs" was persuasive and she was a credible and consistent witness. I also find she did not know the extent of Full Repayment Costs until after she had resigned.[47]However I also find that when she signed both the Conditional Offer Letter and Final Offer Letter she either knew or should have known that if she resigned prior to completing three years of employment she would have to repay substantial sums to the Respondent.[48]I go on to find therefore she knew or should have known that such sums included accommodation costs, any outstanding amount from her £1000.00 advance and travel costs including the airport pick up.[49]In respect of Ms Egbochuku's oral evidence, I was concerned she was a little evasive about the induction logistic costs and the agency costs.[50]I find that Ms Egbochuku's explanation that induction logistics costs related to the cost the travel company charged to the Respondent unconvincing and on the balance of probabilities this charge was more likely reflected in the airport pick up cost of £300.00.[51]I also find that it is unclear how the blanket agency fee of £500.00 for administration costs was arrived at by the Respondent. I expect the Respondent would argue these were reasonable costs but the lack of specificity in the documentary evidence in particular was troubling. Furthermore the Respondent did not provide convincing further evidence or context for this amount. Applicable Law - Unauthorised Deductions from Wages[52]The right not to suffer an unauthorised deduction from wages is set out in Part II of the ERA 1996. Wages are defined widely in s27 of the ERA 1996 and means "in relation to a worker ...any sums payable to the worker in connection with his employment..."[53]Section 13(1) of the ERA 1996 provides: "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."[54]Section 13(3) of the ERA 1996 states that a deduction occurs when 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 wages properly payable by him to the worker..."[55]The remedy for an unauthorised deduction from wages is for the employer to pay the employee any such unauthorised deductions made to his or her wages. Conclusions and Remedy[56]In light of my findings, my decision is that the Respondent unlawfully deducted wages from the Claimant in January/February 2025.[57]The Respondent was entitled to make deductions to the Claimant's wages for its costs in respect of some of the elements in the Breakdown.[58]This is because although in signing the Conditional Offer Letter and the Final Offer Letter Ms Asiedu had previously signified in writing her agreement or consent to the making of a deduction as provided for in s13(1)(b) of the ERA 1996, this agreement did not extend to the full amount of £2,861.83 which the Respondent deducted from her wages in January and February 2025.[59]In relation to the induction logistics costs I find the amount of £113.83 was an unlawful deduction from the Claimant's wages by the Respondent.[60]In relation to the agency fee I find the amount of £500.00 was an unlawful deduction from the Claimant's wages by the Respondent.[61]The Claimant is therefore owed the following from the Respondent - £500.00 + £113.83 which comes to £613.83. Approved by: