Mrs D Haughton v Jo Jo’s Day Care Nursery Ltd: 6010584/2025
REASONS
The claimant’s claims of: wrongful dismissal; unauthorised deductions from wages; and holiday pay are well-founded and succeed. Page 1 of 7 The claimant is entitled to the sum of £930.64 gross. She is to account to HMRC. The Tribunal also makes a declaration that the respondent’s payslip was defective in that it did not show deductions made (s.12(3) Employment Rights Act 1996).[1]The claimant claims four weeks’ notice pay, she worked 3.5 hours over 4 days per week. Her hourly rate of pay was the 21+ national minimum wage of £11.44. Thus she claims: £11.44 x 3.5 x 4 x 4 = £640.64[2]The respondent agreed the sum, but not that it is liable.[3]A claim for wrongful dismissal is a common law action based on breach of contract. It is a claim for notice pay. It is very different from a complaint of unfair dismissal; which is not before the Tribunal as the claimant does not have two years’ qualifying service to present such a claim. The reasonableness or otherwise of an employer’s actions is irrelevant. The Tribunal has to consider is whether the employment contract has been breached. If it has, and dismissal is the result, then it is wrongful (but it is not necessarily unfair).[4]The question therefore is, did the claimant breach the contract by saying she would not attend the meeting on the 21/1/2025?[5]The respondent sent a message at 19:16 on the 20/1/2025 calling a meeting the following evening at 18:15; less than 24 hours notice. The meeting was outside of working hours and the claimant’s working hours were 10:00 to 13:30/13:45. The meeting was therefore scheduled for over four hours after her shift had finished.[6]The whole team was called to the meeting as it was to discuss safeguarding issues; clearly a serious matter.[7]The claimant responded at 19:19 to indicate she could not attend the meeting. Further messages were exchanged. The net result was that the claimant offered to come into work before her shift started, to have a discussion about the concerns. The response was that if the claimant did not attend the meeting, her contract would be terminated.[8]The claimant’s point is noted that if the meeting were to take place in the evening, all the affected staff would have worked their shift that day. This did Page 2 of 7 undermine the respondent’s position that this was such a serious issue; notwithstanding that all child safeguarding issues are by definition serious.[9]The claimant explained that she was due to leave to go on holiday in the early hours of the 22/1/2025, she had things to do (packing) and as such, she could not attend the meeting in the evening.[10]The reasons given by the respondent to the claimant for terminating her contract on the 20/1/2025 were ‘the working relationship within the setting failing and not all children needs being met’.[11]There was no evidence that other ‘relationship’ issues had been raised with the claimant, although, it appears there was some underlying dissatisfaction. It was not however serious enough for any informal or formal action to be taken.[12]The Tribunal finds that a refusal to attend a meeting, out of hours and with less than 24-hours notice is not unreasonable and is not a breach of contract. That is particularly so when the claimant had a good reason for not attending and had offered to attend an earlier meeting, before her shift started.[13]The respondent therefore wrongfully dismissed the claimant and she is entitled to the sum of £640.64.[14]The next sum claimed is £186.52 (page 91). This relates to the cost of attending two training courses on 14/8/2024 and 18/12/2024. The attendance at the courses was compulsory.[15]The respondent relies upon the contract of employment and the clause related to ‘Training’ (page 18). The second paragraph of that clause reads: ‘In the event that the employee terminates his or her employment with the Nursery during the first six months of employment with the Nursery, or thereafter, as determined by any Training Agreement signed by the employee, the employee will be required to repay to the employer a proportion of the cost of the training incurred by the employer, as determined by the Training Agreement.’[16]Notwithstanding any ambiguity in that clause, the claimant did not terminate her employment with the respondent.[17]The third clause reads: ‘The Nursery reserve the right to deduct from the employee’s wages any money owed for training. The employee by his or her signature on this document agrees to the deduction of any monies owed.’ Page 3 of 7[18]Belatedly, the respondent produced the Training Agreement. It was dated 23/10/2023. The claimant had initialled in respect of two courses Safeguarding Children on 14/8/2024 and Food Hygiene on 31/10/2024. She had not signed or initialled in respect of Paediatric First Aid. Importantly, there was a section on the Agreement where the cost of the course would be inserted: ‘(£ )’ and this was not completed for any of the three courses. The claimant did not know therefore, the cost of the course at the time she signed the agreement. She did not know the extent of her liability. There was no apportionment of the cost of the courses.[19]Furthermore, those courses were compulsory. The claimant was paid the national minimum wage. Although the cost of the two courses was not expensive (£65.00 and £30.00), this equates to over eight hours of work for the claimant, so over two days’ work. Again, this would mean that in paying for the courses, the claimant was not being paid the equivalent of the national minimum wage.[20]For the clause not to be deemed void at common law, the right to deduct sums from an employee has to be a genuine pre-estimate of the loss the employer could suffer if the employee is in breach of contract. There cannot be a genuine pre-estimate of the loss if the cost of the course is not specified. Otherwise, the clause is void as a penalty clause. The respondent has had the benefit of the claimant’s labour following her attendance at these courses (certainly in respect of the Safeguarding course for five months). The claimant was told to attend the courses.[21]On the 10/7/2024 the claimant was told in respect of the paediatric first aid course, that if she terminated the contract with in 12 months then the full cost of the course and the payment for attending the course, would be due back to the respondent (page 4). This statement clearly referred to the claimant terminating the contract, not the respondent.[22]The clause is void and is therefore unenforceable. The sum of £186.52 is due to the claimant.[23]Although the respondent said it deducted this sum from the final payment, it did not show the deduction on the payslip dated 14/2/2025 (page 91). The Tribunal therefore makes a declaration that the payslip was defective in not expressly showing the deduction (s.12(3) Employment Rights Act 1996). Page 4 of 7[24]The claimant also claims unauthorised deductions from wages under s.23 Employment Rights Act 1996 (ERA). The right not to suffer the unauthorised deduction is found in s.13 ERA.[25]The claimant claims the sum of £45.76. She says this represents four hours doing online work, prior to attending the paediatric first aid course on the 18/12/2024. The respondent agrees this work was carried out. The respondent said that if this sum had been paid to the claimant, it would have been deducted in the same way it deducted the sum of £186.52 from the final payment.[26]The respondent’s defence on that point has been rejected and therefore, the claimant is due four hours x £11.44 when she did online preparation for the training course on the 16/12/2024. The claim for £45.76 is well-founded.[27]The claimant claims the sum of £74.36 which she says represents out of hours parties she attended at the nursery. One was in July 2024 to celebrate the children who would be leaving and going onto primary school and one was a Christmas party in December 2024. The claimant said she was contractually obliged to attend these events.[28]The respondent said that they were not events where the nursery supervised the children and they attended with their parents. It said attendance was voluntary.[29]The claimant’s evidence in respect of this claim was produced during the hearing.[30]The first message from the respondent on the 4/4/2024 read: ‘Hi all, Please make sure you save Saturday 20th July for the children leavers party at the beautiful ‘Crescent Turner’. This is usually 11:30 – 13:30 for the children to come along and have a boogy with the staff and their families, parents have a few drinks and a little presentation at the end for our school leavers. Jo Jo’s would like help from 09:00 onwards, all staff expected to be there by 10:00am. Also last year a few staff left during or straight after, please make sure we are a team in saying bye to the children and the clean up after!’ Page 5 of 7[31]There was a second message from the respondent on the 10/10/2024 which read: ‘Hi all, Please leave Sunday 8th December free for our Children Christmas Party at “Under 1 Roof” in Thanet from 15:30 – 18:15 (Children attend 16:00 – 18:00) Please reply to this email you have saved the date in your diary by Sunday 13th October. Please can I remind all that these special events are in all added in staff contracts to attend.’[32]The messages were not asking for volunteers or for staff to attend in their own time. The second message was unambiguous and the instruction was clearly that a member of staff was contractually bound to attend.[33]The claim in respect of the event July 2024 event is out of time (s.23(2) ERA).[34]The payment in respect of the December 2024 (15:30 to 18:15) is wellfounded and the sum of £11.44 x 2.75 hours = £31.46 is awarded.[35]The penultimate claim is in relation to holiday pay. The claimant claims she was underpaid holiday pay in January 2025 (relating to leave when the nursery was closed over the Christmas break) and in her accrued pay upon termination of employment in February 2025.[36]The respondent’s explanation for this was that it had averaged the claimant’s rate of pay over the preceding 12 weeks and during that time, the claimant had been absent and in receipt of statutory sickness pay. The claimant is however an hourly paid employee with a set working pattern. Her holiday pay should therefore be paid at the hourly rate of £11.44. Otherwise, there is a risk that she is paid less than the national minimum wage when she receives her holiday pay. In any event, s.224 ERA does not apply.[37]The claimant claims £21.84 for January 2025 and £1.51 for February 2025.[38]Her January 2025 payslips show six days holiday, at a daily rate of £36.40 = £218.40.[39]If the correct daily rate/multiplier was used (£11.44 x 3.5 =) £40.04, the calculation would have been six days x £40.40 = £240.24.[40]It is therefore agreed the claimant has been underpaid by £240.24 - £218.40 = £21.84. Page 6 of 7[41]In the final payment, the multiplier of £36.25 was used, rather than £40.04. The units paid were 0.40. The calculation therefore was 0.40 x £36.25 = £14.50, the payslip however shows the amount as £14.46.[42]The correct calculation is 0.40 x £40.04 = £16.02 (£16.016 rounded up to £16.02). 43. £16.02 - £14.46 = £1.56 due. The claimant calculates this as £16.02 - £14.50 = £1.51 (the rounding up accounts for the difference).[44]The final sum sought, was a deduction of a quarter of an hour relating to the week commencing 13/1/2025. It is likely the respondent said, this was due to the claimant being late on one occasion. This could not however be verified. The respondent has known this sum (albeit small) was in dispute since the claim was presented on the 27/3/2025. Despite trying to evidence this during the hearing the respondent was unable to do so.[45]The claim is well-founded: 0.25 x £11.44 = £2.86[46]The sums due to the claimant are therefore: Four weeks’ notice pay £640.64 Deduction from final salary of £186.52 (page 91) £186.52 Online course 16/12/2024 £ 45.76 Attendance at a Christmas party December 2024 £ 31.46 Holiday pay January 2025 £ 21.84 Holiday pay February 2025 £ 1.56 Quarter hour’s pay week of 13/1/1025 £ 2.86 Total £930.64 16/9/2025 Approved by