Dr S Jones v Scholars School System, Part of UK Curriculum Accreditation Body: 6017013/2024
JUDGMENT
[1]The Claimant’s complaint of unauthorised deductions from wages is wellfounded.[2]The Respondent’s counterclaim is dismissed. The Tribunal has no jurisdiction to hear it.[3]The issue of remedy is adjourned to 12 September 2025 at 14:00pm. Case management orders in respect of the remedy hearing are issued separately.REASONS
[1]The Claimant brings a claim under section 13(1) of the Employment Rights Act 1996 (ERA) for unlawful deduction from wages. He contends that following his resignation on 3 May 2024, he gave the required contractual notice and was entitled to be paid in full up to his agreed termination date of 31 August 2024 and that the final salary payment he received in August 2024 was short of the amount owed.[2]The Respondent accepts that the Claimant resigned and that he was placed on garden leave from 24 May 2024. However, it disputes that his employment continued until 31 August 2024 and contends that his entitlement to salary and holiday pay ceased earlier. The Respondent denies making any unlawful deduction. Preliminary Matters Correct ET1 FormPreliminary Matters
[3]It was noted that the Tribunal had recorded two ET1 forms dated 1 November 2024 as being filed by the Claimant. These were similar but with some slight differences. At the outset of the hearing the Claimant confirmed that the claim form with the “Official Use Only” box completed on the front page was the correct claim form. Head of Claim[4]The Claimant clarified that his complaint had been bought pursuant to section 13(1) ERA. Employer’s Contract Claim[5]In its ET3 dated 2 December 2024, the Respondent had completed box 7 stating that it wished to make an employer's contract claim in respect of an overpayment made to the Claimant.[6]The Tribunal explained to the Respondent that employers are restricted to the right to make a counterclaim in cases where a former employee brings a breach of contract claim against them. An employer cannot bring a breach of contract claim against an employee unless the employee has bought a claim which includes a complaint of breach of contract.[7]In this case, the Claimant’s claims are for unlawful deduction from wages. Therefore the Tribunal does not have jurisdiction to consider the Respondent’s counterclaim and it is dismissed. Evidence of Ms Strader[8]Prior to the hearing, the Claimant had indicated in an email to the Tribunal and the Respondent, that he would like that Ms Sharon Strader to give evidence. He explained that at the time of his resignation, she was the HR Manager of the Respondent and had relevant knowledge regarding the circumstances leading to his claim, including arranging his garden leave and holiday pay.[9]The Respondent objected to the calling of Ms Strader as a witness on the basis that it would be a conflict of interest for Ms Strader to give evidence. Mr Kumar said that Ms Strader had ceased employment with the Respondent in August 2024 but continued to work together with the Claimant in a different capacity.[10]The Tribunal considered the Respondent’s objection to the Claimant calling Ms Strader, as a witness. It has also had regard to Rule 41(3) of the Employment Tribunal Procedural Rules 2024.[11]In this case, no formal witness statements have been provided by either party, including from Ms Strader. Notwithstanding this procedural irregularity, the Tribunal was satisfied that it was in the interests of justice to permit Ms Strader’s oral evidence. She is a potentially material witness, having been directly involved in discussions regarding the Claimant’s notice period and the arrangement of garden leave.[12]While the Respondent raised concerns about a possible conflict of interest — namely, that Ms Strader previously worked for the Respondent and alleges that she continues to work with the Claimant— the Tribunal considered that such matters go to weight, rather than admissibility. The Tribunal is well placed to assess the credibility and reliability of the evidence given and can consider any potential bias or collusion in evaluating the substance of Ms Strader’s account.[13]Accordingly, the Tribunal permitted Ms Strader to give evidence, considering the circumstances in which it has been presented and the objections raised by the Respondent. Absence of Bundle and Witness Statements[14]Neither party was legally represented and the Tribunal was not provided with any witness statements or a bundle prior to the hearing. The Tribunal noted that both parties had contacted the Tribunal on the morning of the hearing to ask where to send their documentary evidence but that unfortunately details had not been provided prior to the scheduled start of the hearing. The parties also confirmed that there had been no exchange of documents prior to the hearing.[15]The Tribunal invited the parties to consider whether they were able to proceed with the hearing as listed today or if they would require more time to prepare. The Tribunal noted that the issues in dispute were narrow and potentially could be dealt with by way of oral evidence. If required, further documentation could also be submitted to the Tribunal as appropriate.[16]Both parties agreed that they wished to proceed and confirmed that their position was set out in their respective ET1 and ET3 forms. They were happy for these to serve as their evidence in chief and it was agreed that they could be further expanded in oral evidence. Technical Challenges[17]As well as Mr Kumar, Ms Yaldiz, the current HR Manager attended the hearing on behalf of the Respondent. The Tribunal enquired as to whether Mr Kumar or Ms Yaldiz would be representing the Respondent. It was agreed that Mr Kumar would do so.[18]Concerns were raised by the Claimant that Mr Kumar was not in a room on his own and was receiving instructions from a third party. Mr Kumar was asked to confirm that he was on his own and he confirmed that he was.[19]Whilst dealing with the preliminary matters regarding Ms Strader’s evidence, the connection with Mr Kumar was lost. He called the clerk and said that he wished to make an application for Ms Yaldiz to take over on his behalf as he was unable to hear clearly.[20]Mr Zahid Bhatti, the CEO of the Respondent, then also joined the hearing and indicated that he wished to take over from Mr Kumar. This request was refused on the basis that Mr Bhatti had only recently joined the hearing and that there appeared to be no specific reason why Mr Kumar could not continue. Eventually Mr Kumar rejoined the hearing and agreed that he would continue to represent the Respondent. Procedural Matters[21]The Tribunal heard evidence on affirmation from each of the following parties:a. Dr Simon Jones, the Claimant;b. Ms Sharon Strader, the former HR Manager of the Respondent; andc. Mr Kumar, the Head of HR of the Respondent.[22]The Tribunal was also provided with copies of the following documents during the hearing which were referred to during by the parties as set out below:a. The Claimant’s contract of employment dated 17 May 2023b. The Claimant’s letter of resignation dated 3 May 2024c. Email from Sharon Strader to the Claimant dated 21 May 2024d. Email from Sharon Strader to the Claimant dated 22 May 2024e. Letter from Abdullah Mushtaq to the Claimant dated 29 May 2024f. Payslip dated 5 June 2024g. Payslip dated 5 July 2024h. Payslip dated 5 August 2024i. Payslip dated 5 September 2024j. Email from Claimant to Funmilayo Ekisola dated 2 September at 12.03k. Email from Arjit Saini to Claimant dated 3 September 2024 at 16:54Issues
[23]It was agreed that the issues to be determined by the Tribunal were as follows:a. Had there been an unlawful deduction from the Claimant’s wages contrary to section 13(1) of the ERA?b. If so, should the Respondent be ordered to pay the Claimant the amount of any such deduction in accordance with section 24(1) of the ERA.Evidence
[24]It is not the purpose of these written reasons to provide a narrative account of all of the oral evidence heard and so what follows is a summary of the parties’ oral evidence as set out during the hearing. Claimant[25]The Claimant maintained that his resignation, submitted on 3 May 2024, gave more than the required 12 weeks’ notice, with a proposed final date of 31 August 2024. He said that the Respondent accepted his resignation on that basis, effectively placing him on garden leave from 25 May to 3 August, a position that was supported by email exchanges and the letter of 29 May from Mr Mushtaq. The Claimant said that he has consistently disputed the underpayment without receiving a clear explanation and asserted that he remained entitled to his full salary through 31 August 2024 based on this being the agreed end date.[26]Regarding annual leave, the Claimant disputes the employer’s calculation of 12.33 days, stating he had 24 days owing, supported by a screenshot. He denied claiming additional days for religious festivals beyond what was agreed. However he noted that this was a moot point as in either scenario his final day of service would be 31 August 2024. Ms Strader[27]Ms Strader was employed by the Respondent from May to August 2024 but was not involved in payroll or final payment calculations. She confirmed that she had reassured the Claimant that, as per her own understanding, he would continue to be paid monthly until the end of August and that garden leave was agreed from 24 May due to concerns about the Claimant’s access to sensitive information. She said decisions regarding payments were made by Mr Bhatti, her line manager and she had also been instructed not to respond to the Claimant’s resignation, which was also handled by Mr Bhatti. Mr Kumar[28]Mr Kumar confirmed that the Respondent used a software package called Atlas to manage employees’ leave entitlements. He explained that while the Claimant’s full-year entitlement was 28 days plus public holidays, Atlas did not automatically adjust for pro-rata entitlement when an employee left part-way through the leave year. Accordingly, this explained why the Claimant’s calculation of holiday pay and the Respondent’s differed and the screenshot provided by the Claimant had caused confusion.[29]Mr Kumar could not explain why the August payslips had been amended or why payment had been made despite the Claimant not accepting the resolution. He was also unaware of the related correspondence. He stated the P45 was delayed because it is always issued after the final salary is processed, usually the following month. He confirmed the Claimant had been paid for three extra days (31 July–2 August) and two discretionary religious festival days, despite not being entitled to them.Findings of Fact
[30]Having considered the evidence and closing submissions on each side, the Tribunal makes the following findings of fact.[31]The Claimant was employed by the Respondent as the Executive Dean on 17 May 2023. The Claimant worked a total of 40 hours a week, Monday to Friday, and was paid a gross salary of £90,000 per annum.[32]Clause 19(a) of the Claimant’s contract of employment (the “Contract”) provided as follows: “During the probationary period, either we or you may end your employment at any time by giving us no less than one academic terms (12 weeks) notice. After the probation period and once confirmation of employment is established, you may end your employment at any time by giving us not less than one academic terms (12 weeks) prior written notice and we may end your employment at any time by giving you one academic term (12 weeks) written notice.”[33]On 3 May 2024, the Claimant resigned from his role. His resignation was given in writing to Mr Zahid Bhatti, the CEO. The letter stated: “After considerable reflection, I have decided to submit my resignation as Executive Dean. Under my contractual obligation requiring a minimum of 12 weeks’ notice, I would propose my final day shall be Saturday 31 August 2024. I have greatly appreciated the opportunity to work for Scholars School System, and found reward in contributing to the Mission of Education for All. Please be assured, it is my intention to fulfil my contractual obligations through my notice period, and I will endeavour to work with the professionalism and commitment you have come to expect from me. I would welcome a conversation about particular tasks which you would like me to address in my remaining time working for SSS, so that I might hand over to any replacement as effectively as possible.”[34]The Claimant’s resignation was accepted on 6 May 2024 by Mr Bhatti.[35]Following acceptance of the resignation, Ms Strader wrote to the Claimant on 21 May 2024 stating the following: “Considering the challenging circumstances faced by both SSS and yourself, we have decided to offer you garden leave, effective from May 24th through to August 2nd. … Your salary will continue to be paid monthly. Your final payment will include any untaken leave still owed to you. … You will also need to return company equipment, including your laptop, charger, ID and phone, to Faheem on May 24th”.[36]Following this email, there was an exchange of correspondence between the Claimant and Ms Strader in which the Claimant sought to clarify a number of practical matters relating to the termination of his employment. These included queries about his final date of employment and outstanding annual leave. A further meeting took place between the Claimant and Ms Strader on 22 May 2024, during which these matters were also discussed.[37]Ms Strader sent the Claimant a further email at 13:50 on 22 May 2024 stating: “On your last day will be 3rd August. You will be paid your normal salary in June. Normal salary in July. Final settlement in Aug which will be your normal salary plus money paid in lieu of your leave days”[38]The agreement regarding the Claimant’s termination arrangements was further confirmed on 29 May 2024, in a letter from Abdullah Mushtaq, Director Operations to the Claimant headed “Your Garden Leave”. The letter confirms that the Claimant was being placed on a period of garden leave commencing at close of business on 24 May 2024 and terminating on 2 August 2024.[39]The Claimant was paid for the months’ of June 2024 and July 2024 as expected and in accordance with his Contract.[40]On 30 August 2024, the Claimant received his payslip for the period August 2024.[41]On 2 September 2024, the Claimant sent an email to Funmilayo Ekisola raising concerns that the August 2024 payslip was £1,615.40 short of the agreed £7,500 gross payment. The Claimant requested a revised payslip reflecting the correct total to resolve the matter.[42]On 3 September 2024, Arjit Saina clarified that the Claimant’s final payslip reflected 17 days of unused leave based on HR records, and that his last working day was 2 August 2024. The Claimant was sent a revised payslip for the month of August.[43]Upon receipt of the revised payslip, the Claimant queried again the shortfall in his expected pay, this time noting that it was £923.09 short of the expected payment and asked that this be corrected or an explanation provided. Ms Ekisola responded but referred the Claimant to Mr Saina’s previous email.[44]The Claimant was paid a sum of money in respect of the August payslip. The Tribunal is unable to make any finding as to how much the Claimant has been paid as no evidence has been provided but is satisfied that it was less than the amount actually due to the Claimant, being his usual monthly salary of £7,500, gross, including any accrued but untaken holiday up to 31 August 2024.[45]The Claimant’s P45 was issued on 17 September 2024. The Law Unlawful deduction from wagesThe Law
[46]Part II of the Employment Rights Act 1996 (ERA) sets out the statutory prohibitions on deductions from wages. Section 13(1) contains the general prohibition as follows: “(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.” Notice Period[47]Section 86(2) of the ERA provides that an employee who has been continuously employed for one month or more must give at least one week’s notice to terminate their employment. Where the employment contract provides for a longer notice period, the contractual term will prevail.[48]A resignation that specifies a termination date beyond the required notice period is valid, provided it complies with the contractual or statutory minimum (Beadnell v James Howden and Co Ltd ET Case No.71141/95).[49]Once valid notice has been given, it cannot be withdrawn unilaterally. The notice period can, during the operational period of that notice, only be shortened or extended by mutual consent (Riordan v War Office [1961] 1 WLR 210; Harris and Russell Ltd v Slingsby [1973] ICR 454).Conclusion
[50]The crucial factual issue that the Tribunal must determine is the date on which the Claimant’s employment came to an end following expiry of the notice period.[51]In evidence, the Claimant stated that, in his understanding, the Contract required a minimum of 12 weeks’ notice. His proposed end date of 31 August 2024 provided 14 weeks’ notice. He submitted that this was consistent with the contract and also aligned with the end of the calendar month for practical reasons.[52]The Respondent submitted that the contract entitled the Claimant to a fixed 12-week notice period, and that he was not entitled to receive any further salary beyond that period.[53]The Tribunal does not accept the Respondent’s submission. The Contract clearly states that the notice period required by an employee is “not less than one academic terms (12 weeks) prior written notice”. That wording clearly establishes a minimum requirement and not a cap.[54]By contrast, the employer’s notice obligation is framed in more definitive terms - “one academic term (12 weeks) written notice’ – indicating a fixed period. This supports the conclusion that the employee is permitted to give a longer period of notice, whereas the employer is limited to 12 weeks.[55]The Claimant’s notice period of 14 weeks exceeded the contractual minimum and was therefore permitted under the Contract. His written resignation and intended termination date were clear and unambiguous. Accordingly, the Tribunal finds that the Claimant’s notice was validly given.[56]Per Slingsby, once valid notice has been given, it cannot be unilaterally withdrawn and may only be shortened or extended by mutual agreement. While the Respondent was at liberty to negotiate an alternative end date, there is no evidence that it did so. Mr Kumar and Ms Strader gave evidence that resignations would normally be referred to the line manager, in this case Mr Bhatti, and the Tribunal accepts that Mr Bhatti accepted the Claimant’s resignation. The Tribunal therefore finds that the Claimant’s resignation was accepted and that the effective date of termination was 31 August 2024.[57]This finding is further supported by the content of Ms Strader’s emails dated 21 and 22 May 2024, which explicitly referred to the Claimant being on garden leave and receiving salary payments through to August, including payment in lieu of untaken leave. The Tribunal finds that it was reasonable for the Claimant to rely on representations made by Ms Strader, who was acting in an HR capacity and was the Claimant’s main point of contact during the notice period.[58]The Respondent also challenged the amount payable to the Claimant on the basis that the Claimant had incorrectly calculated his accrued holiday entitlement.[59]In evidence, the Claimant said that this was a moot point given that his expectation was that he would be paid in full until 31 August 2024, regardless of the precise holiday accrual.[60]The Tribunal accepts the Respondent’s submission that the Atlas system assumes full-year service and does not update leave balances when an employee leaves mid-year. However the Tribunal does not find that this affects the amount of the unlawful deduction.[61]Even when the Claimant’s holiday entitlement is pro-rated for part-year service, he remained entitled to payment in lieu of accrued but untaken leave as at 31 August 2024. The Claimant was on garden leave from 24 May onwards and there is no evidence that the Respondent either permitted or required him to take leave during this period. In any event, the Claimant appears to have conceded, by his claim form, that the unpaid accrued holiday would form part of his final August salary payment.[62]The Respondent also disputed whether the Claimant was wrongly paid for two discretionary religious festival days and three additional days (31 July to 2 August). While the Tribunal accepts that there may have been administrative confusion about this, the issue is academic given the Tribunal’s finding that the Claimant’s employment continued until 31 August 2024 and does not affect the finding of an unlawful deduction.[63]The Tribunal finds that it was the Claimant’s reasonably expected to use up his remaining accrued holiday during his notice period. This is consistent with his repeated requests for clarification and the absence of any contrary communication from the Respondent. His expectation of a final salary payment of £7,500 gross in August 2024 was, in the Tribunal’s view, reasonable.[64]Accordingly, the Tribunal finds that the Respondent made an unauthorised deduction from the Claimant’s wages in breach of section 13 of the Employment Rights Act 1996. The Tribunal will determine any remedy arising from this finding at a subsequent remedies hearing.