Mr N King v B & M Retail Ltd: 6019246/2025
JUDGMENT
[1]The Claimant’s claims of unlawful deduction from wages and breach of contract are not well founded and are dismissed.REASONS
[1]In this claim, Mr King brings proceedings for breach of contract and unlawful deduction from wages against his former employer B & M Retail Limited.[2]I have before me the following:a. A bundle of documents totaling 134 pages plus an indexb. An additional ten pay slipsc. Witness statements from the Claimant, Carol Lawton and Richard Isherwoodd. A skeleton argument from the Respondente. The Claimant’s response to that skeleton argument.[3]Because this is a claim for alleged unpaid money, it has not been the subject of a prior case management hearing at which the claims were defined. Upon reading the claim form, the central complaint was that the Claimant says that he had a contractual agreement to be paid £40,000 per annum and was only paid £32,000 per annum. I considered that these plainly engaged both the lawful deductions regime in s.13 Employment Rights Act 1996 and the breach of contract regime as permitted by the Employment Tribunals Extension of Jurisdiction Order England & Wales 1994. I raised this with the parties at the outset of the hearing and the parties agreed.[4]The claim form references other matters such as defamation. The Claimant confirmed that no other claims were before the Tribunal.[5]The issues for determination were as follows:a. What was the Claimant’s contractual entitlement as to pay? i. Was the rate of pay agreed at an interview on the 12th July 2024? ii. Was the rate of pay determined by a contract sent on 18th July 2024? iii. Depending on the facts found -does the doctrine of mistake apply?b. Did the Respondent pay the Claimant less than his contractual entitlement?c. If there was a breach, did the Claimant affirm the breach by remaining in employment?[6]The hearing took place by way of video (CVP).[7]The Claimant gave evidence and was cross-examined. The Respondent called Mr Isherwood and Ms. Lawton, both of whom were cross-examined. All witnesses had provided a statement and gave evidence via affirmation. Both parties then made their respective submissions following the lunch break. Following submissions, due to a lack of time, I then reserved my judgment.[8]As the Claimant was unrepresented, I sought to give effect to the overriding objective to ensure that the parties are on an equal footing. I explained that I could not run his case for him. I explained the purpose of cross-examination, the referencing of documents and the need to ask one question at a time. I also explained what submissions were and how they were undertaken.Findings of Fact
[9]The Respondent is a retailer. The Claimant’s role was that of Warehouse Team Manager (WTM).[10]On 29th February 2024, the Claimant interviewed for the role of Warehouse Team Manager. No specific salary was publicised for the role. The discussion went well and the Claimant was regarded as a good candidate, but the Claimant’s salary expectations were ‘up to £45,000’ and this interview was not taken further on this basis. Much of this is common ground between the parties.[11]However, the parties made contact again a few months later. A second interview took place on the 12th July 2024. The Claimant spoke with Mr Darren Burrows (General Manager) and Mr Richard Isherwood. The meeting took place online.[12]Mr Isherwood joined after Mr Burrows did and the Claimant did. The Claimant relies upon this. Having considered the point, I do not consider it to be material. Mr Isherwood’s evidence was that salary was discussed with him and that could only occur after Mr Isherwood joins. The claimant’s evidence was that no specific sums were discussed. Therefore, if Mr Isherwood did join a few minutes late, it does not preclude either parties version of events.[13]The evidence of Mr Isherwood before me was that he wanted ensure that everyone was clear on salary because this was the reason for the previous interview not going further. It was his evidence that the Claimant was told that the salary was £32,000 and that the Claimant agreed to this.[14]The Claimant’s evidence was he had been told that he had needed to lower his salary expectations but that he denied that specific salary sums were discussed. He says that he did say that money was not the be all and end all. He says that his position was that he would be expecting an offer to come through in the region of £40,000, but this was not expressed verbally.[15]An email was sent by Mr Isherwood on the 15th July 2024 internally to a number of recipients. The Claimant was not a recipient. Amongst other matters, the email stated “…we would like to offer him the role on a salary that he was happy with in interview of £32k.”[16]A chain of internal emails of the same date then follows. An email from Mr Brown to Mr Isherwood and others indicates that he had spoken to the Claimant stating “I’ve just spoken with Neil King and he has accepted his offer.” A later email for the purposes of drafting the Claimant’s contract instructs Ms Lawton in HR as to the Claimant’s personal details and his salary, which is referred to as £32,000.[17]As to what was said in that second interview, I prefer the evidence of Mr Isherwood to that of the Claimant. The evidence of Mr Isherwood is consistent with the subsequent contemporaneous emails. The tone of the emails is also consistent with the evidence of Mr Isherwood. I understand that the Claimant was not a recipient of those emails and have weighed that up as part of my fact finding, but it is not suggested that the emails are not genuine and such a suggestion would be fanciful in the circumstances.[18]I find Mr Isherwood’s reasoning that he wanted to ensure that salary was discussed because of it being the reason for the first interview not going further to be persuasive. It makes sense that the Respondent would seek certainty on this. In contrast, the Claimant’s evidence as to what was said was vague and uncorroborated.[19]Carole Lawton in Human Resources sent the Claimant an email on the 18th July 2024. The time was 15.59 hours. Attached was a contract that set the salary at £40,000.[20]The Claimant does not suggest that he read this email at this point.[21]In any event, Ms Lawton then sent a further email at 16.08. It states “my apologies, please disregard the last contract I sent through. I have attached an amended contract.”[22]That amended contract provided for a salary of £32,000.[23]At 16.10, Ms Lawton sought to recall the earlier email.[24]The evidence of Ms Lawton was frank. She accepts that she made an error that she should not have done. It was her double checking her work that then led her to send the second email.[25]The Claimant says that he did not receive the second email. I find that the email was sent. It is part of a consistent chain of emails. I accepted the evidence of Ms Lawton on this point.[26]There is no written contract signed by both parties. No document has ever been returned by the Claimant. I do not accept the Claimant’s suggestion that he did send it back. No corroborative or surrounding evidence has been supplied and he is vague on even the basic timing of this. During the subsequent grievance meeting, he refers to it being sent but also refers to ‘it may have been signed and returned’. In light of the contracts being sent to his personal email account, the Claimant also refers to the possibility of him having sent it to his work account in order to return/send on to the Respondent but has not produced any evidence from his personal account, e.g. his outbox that it had been sent in this way..[27]Ms Lawton did not follow up either of these emails or the fact that she did not receive a signed contract back from the Claimant. Again, in evidence she frankly accepted that she should followed this up, particularly in these circumstances where her position is that an error has been made.[28]The Claimant commenced his employment. He was paid monthly. His salary was £32,000 gross per annum, paid monthly.[29]Following the contracts being sent and the claimant commencing employment, the Claimant did not raise with the Respondent whether verbally or in writing any issue regarding his salary until the 18th April 2025. I return to that date further below.[30]The Claimant’s evidence before me was that he did not look at his pay slips nor did he look at the amounts going into his bank account. I did not find this to be particularly plausible. Pay is important to an individual. Although the Claimant gave evidence on the basis that money was not his core motivation, that did not sit well with his overall evidence or position or indeed the fact that he had commenced proceedings for wages in circumstances such as this. An individual understanding their income allows them to undertake basic budgeting. I find that the Claimant was content with his rate of pay.[31]The Claimant resigned on the 16th April 2025.[32]On the 18th April 2025 the Claimant sent an email titled ‘Formal Notification of Breach of Contract and Underpayment of Salary’. This was the first occasion that the Claimant had raised this point in any form. The Claimant’s position was that he had been underpaid by £8000.[33]The Claimant’s evidence was that he had a conversation with his wife whilst looking up his notice period. It was at this point he realised that he had a contract that paid £40,000 per annum and that he had been paid £32,000 per annum. It was on this basis that he raised it with the Respondent on the 18th April 2025.[34]A grievance process then commenced. The Claimant was interviewed on the 30th April 2025.I have considered the documents produced during the grievance process in so far as they relate to my findings of fact above.[35]The Claimant’s grievance was not upheld. He appealed this on the basis that he had a signed contract. The grievance appeal meeting took place on the 21st May 2025.[36]In the grievance appeal, the Claimant refers to going to Middlwich, printing the contract off and scanning it to Ms Lawton from his work address. This was a change in position from the Claimant’s previous explanation. The Claimant also produced a copy of the contract he alleges was signed on 8th August 2024, but it is not signed by the Respondent.[37]As part of the appeal process, the Respondent asked the IT department to check any emails sent to Ms Lawton on or around the 8th August and nothing was found.[38]ACAS Early Conciliation Date A was the 22nd April 2025. Date B was 21st May 2025. The ET 1 was submitted on 23rd May 2025.The Law
[39]Section 13(3) Employment Rights Act provides 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.[40]The Claimant was an employee of the Respondent and is no longer in employment. Therefore, the Tribunal has jurisdiction to consider his claim for breach of contract by virtue of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[41]I directed myself as to the essential requirements of the formation of a contract and its terms. The formation of a contract requires there to be an offer and an acceptance of that offer. There must be consideration, an intention to create legal relations and certainty as to the terms of the contract.[42]As to the law on the doctrine of mistake, Counsel for the Respondent relied upon Hartog v Colin & Shields [1939] 3 All ER 566 and OT Africa Line Ltd v Vickers PLC [1996] 1 Lloyds Rep 700. I direct myself in accordance with these authorities.Conclusions
[43]The Claimant worked for the Respondent for a period of roughly nine months. The fact that a contract existed is indisputable. What I must determine is the contractual agreement as to pay.[44]I will first consider what the terms of the contractual agreement were.[45]The first meeting that occurred is relevant background evidence, but there is no suggestion by either side that it resulted in an offer of employment, an agreement on pay or the formation of a contract.[46]I accept the evidence of Mr Isherwood that within the second meeting, the salary was said to be £32,000 per annum. This is corroborated by his subsequent email.[47]The Claimant is not a recipient of that email. That is relevant to my assessment of the overall factual situation, but what the email does represent is clear contemporaneous evidence of the understanding of Mr Isherwood.[48]I found the Claimant’s position on what was agreed in this meeting to have some inconsistency but also a lack of plausibility.[49]Therefore, the contract was formed with a salary of £32,000. There was an offer and an acceptance. There was an intention to create legal relations. There was consideration. There was sufficient certainty as to terms.[50]The first written contract sent out was withdrawn prior to it being read by the Claimant. The withdrawal was explicit. Therefore, there was no acceptance of the offer, the offer having been withdrawn. This did not form a new contract.[51]In the alternative, the Respondent relies upon the doctrine of unilateral mistake. In light of the above findings, it is not strictly necessary to determine this, but I do so in any event for the sake of completeness. The Respondent argues that the contract that was sent was the incorrect one and the correct one was sent shortly thereafter.[52]The approach of Ms Lawton to this situation can be criticised. Firstly, in terms of the initial mistake and secondly having made the mistake and recognising that fact, not checking up on the Claimant failing to sign the second set of terms and conditions that were sent. Having set this out, it is also right to acknowledge that to her credit, Ms Lawton frankly accepted all of the above before me and did not seek to obfuscate or be defensive as to her position. This was a human error, but she was plainly a truthful and honest witness.[53]I accept the Respondents’ submission that if the Claimant had seen this first contract at the then he would have been aware it was a mistake and was not consistent with what had been agreed with Mr Isherwood. Pay is plainly a fundamental term of the contract and a clause that will have attention paid to it.[54]I accept the Respondent’s further submission that the Claimant ought to have known of the mistake and therefore would have been on enquiry to at least ask Ms Lawton or Mr Isherwood about this. Given that pay is fundamental and that this was different to what was agreed, there would be a real reason to suspect that a mistake had been made.[55]The fact that this was a mistake and not the intention of Ms Lawton or the Respondent is further evidenced by:a. There is a clear instruction to Ms Lawton from Mr Brown to put a salary of £32,000 into the contract.b. When Ms Lawton realises that she made a mistake, she attempts to promptly recall the email.c. Ms Lawton sends an email to the Claimant setting out her mistake.[56]For these reasons, the first contract sent engages the doctrine of unilateral mistake. That contract can not be relied upon.[57]In light of the above, I do not need to consider affirmation of contract. However, for the sake of completeness, I will deal with the point.[58]The undisputed evidence is that there was no challenge by the Claimant to his rate of pay until he had given notice to resign from his employment. This was a period of 9 months. During this period he was receiving pay slips and also receiving a sum of money each month. This is sufficient to amount to affirmation. The Claimant is performing the contract and could reasonably be expected to know if he was not being paid less than he thinks he should be. In these circumstances, continuing to perform the contract was sufficient to be agreeing to the rate of pay that he was receiving[59]The above is a sequential examination of the facts and the application of the legal principles. The summary of the situation is more simplistic. The Claimant and the Respondent agreed a salary of £32,000; The Claimant worked on this basis. HR sent a £40,000 rate of pay contract in error, withdrew that and then shortly thereafter sent a £32,000 rate of pay contract. Following his decision to resign he located the £40,000 contract and has now in these proceedings sought to rely on that when his wife pointed out that he was earning less than that.[60]In evidence, there have been some inconsistencies in the Claimant’s evidence. His version of events on some points is less plausible. In contrast, the position of the Respondent and its witnesses has some support in the documents, has a reasonable explanation for each point that arises and is more plausible.[61]Therefore:a. The Claimant and the Respondent entered into a contractual agreement for the Claimant to be paid £32,000 per annum. This occurred at the second interview. This in isolation is sufficient to dispose of the claim.b. The contract sent by Ms Lawton for £40,000 was sent in error. If it amounted to an offer, that offer was withdrawn prior to it being accepted. The correct contract, confirming the correct contractual position was the second contract that was sent.c. In the alternative, if the doctrine of unilateral mistake were to be applied to the £40,000 contract then that contract would be void.d. In the alternative, if there was a breach of contract, the Claimant affirmed the rate of pay he received by remaining in employment and only challenging his rate of pay following his decision to resign.[62]The claim whether expressed under s.13 ERA 1996 or as a breach of contract is not well founded and is dismissed.