Mr B Gohler v Barclays Bank plc: 6020212/2025
JUDGMENT
The claim for unlawful deductions from wages is dismissed. SUMMARY OF DECISION[1]This summary is for the convenience of readers. It does not form part of the decision or the reasons.[2]Mr. Gohler claimed that Barclays Bank underpaid him while he was performing duties at Vice President (VP) level from early 2023, arguing he should have received the VP salary of £71,000 from that point. He also said the “relief payments” he received before his formal promotion were miscalculated. The tribunal found that while the claimant worked at a higher level, there was no contractual or legal entitlement to VP pay until his promotion took effect on 1 March 2025. The offer to increase his salary earlier was never accepted and and the figure of £71,000 was not agreed or even known until 2025.[3]On the relief payments, the tribunal accepted that they were discretionary and calculated according to Barclays’ policy of using a notional VP starting salary, not the claimant’s eventual salary. Although the calculation process was unclear, there was no evidence that the payments were wrongly computed under the policy. Because the claimant could not show any sum that was “properly payable” but unpaid, his claim for unlawful deductions from wages was dismissed.[4]The tribunal did not make findings on whether the claimant was treated fairly, whether delays in promotion were reasonable, or whether there was a breach of trust and confidence. These issues were outside the scope of the unlawful deductions claim, which is focused solely on whether the claimant was legally entitled to additional pay under his contract or otherwise.REASONS
[1]This is a claim for unlawful deduction from wages. The tribunal has no jurisdiction to consider a claim for breach of contract, because the claimant is still employed.[2]The claimant produced evidence and made submissions in relation to delays and miscommunication by the respondent, and in relation to the fairness of not being paid at the right level for the work he was doing. He also made submissions, at least in writing, in relation to a breach of the implied term of mutual trust and confidence.[3]In order to determine the claim for unlawful deduction from wages I need to decide whether the claimant was paid less than the amount to which he was legally entitled. Whether or not there was a breach of the implied term of mutual trust and confidence is not an issue that arises for determination in an unlawful deductions claim. The questions of whether or not there were delays, or whether the claimant was being paid fairly for the work he was doing are not relevant to the claim for unlawful deductions.[4]Similarly, there was evidence before me about the claimant’s grievance and its handling by the respondent, but the majority of that evidence does not cast light on the terms of the claimant’s contract whether express or implied.[5]I explained this to the claimant at the start of the hearing. I have not made findings on any of these matters because it was not necessary to do so in order to determine the claim before me.Evidence
[6]I heard evidence from the claimant and from Tony Knock, Head of Data Tool Enablement & Services, Digital Data & Analytics, Global Transaction Banking. He is the claimant’s line manager.[7]I had before me a 326 page bundle and a number of additional documents. Some of those documents included written submissions/commentary from the claimant. The titles of the additional documents were:7.1 IRP Process_Redacted7.2 Sales Performance Manager Role Profile – Barclaycard Payments7.3 Balbir Gohler Grievance Tribunal and Appeal7.4 Emails7.5 ER DirectFindings of fact
[8]The respondent has a corporate grading system whereby employees are given a corporate grade alongside their job title. One of those grades is Vice President (VP) which is a higher grade than Assistant Vice President (AVP).[9]The claimant has worked for the respondent since 19 June 1990. Prior to his appointment to the role of Sales Performance Reporting Manager, that role had been at VP grade. Before Mr. Gohler’s appointment that role was downgraded to AVP grade, with the intention that it would revert back to VP grade at an unspecified point in the future.[10]A change to a higher grade while remaining in the same role is referred to by the respondent as an in-role promotion (IRP). Under the respondent’s in-role promotions process, once senior leaders have decided that a role should be regraded, the employee then attends an interview and a decision is made on whether the application for an in-role promotion is successful. The regraded post and salary start on an agreed date. In-role promotions do not take place on an ad hoc basis, they only take place as part of a planned and regular IRP cycle.[11]Mr. Gohler was appointed to the role of Sales Performance Reporting Manager at AVP grade with effect from 1 September 2022. His gross salary at the time was £52,185 per year. That salary increased to £59,000 in 2023/2024 and £62,000 in 2024/2025. He also received a discretionary bonus each year of approximately £12,000.[12]In February 2023, the claimant took on additional duties. There was no agreement at this time in relation to any additional pay or change of grade.[13]From March 2023 the respondent’s managing director at the time, Jon Hussey, recognised that the role of Sales Performance Reporting Manager performed by the claimant should be at VP grade. His role was formally evaluated by the respondent in November 2023 as being at VP level. For the purposes of this claim I assume without deciding that the claimant’s role and responsibilities were such that from January 2023 his role, had it been evaluated earlier, would have been valued as being at VP level.[14]For a number of reasons outside the claimant’s control, although his role had been evaluated at VP grade in November 2023, the claimant was not included in an IRP exercise until September 2024. He was not put forward in December 2022 for the March 2023 IRP cycle because he had just been appointed. There was no IRP cycle in September 2023 because of a merger between Barclaycard payments and GTB. The planned cycle for March 2024 was cancelled by GTB because redundancies had been made recently.[15]The respondent has a policy that employees may be given an allowance if they temporarily cover a role with a higher starting salary in a higher corporate grade or a different compensation grade profile at a higher grade. This is called a ‘relief work at a higher level allowance’. The allowance is calculated using a fixed formula based on the starting salary for the role type or corporate grade that the employee is covering. The policy sets out how the relief payment is calculated. It provides that the relief payment is the higher of either 5% of the minimum starting salary for the role the employee is covering or the difference between their current salary and the minimum starting salary of the role they are covering.[16]There was no evidence from the respondent in relation to the minimum starting salary for the VP grade. Ms Ibbotson had taken instructions on this and she told me that there is no fixed ‘minimum starting salary’ for the VP grade and that the figure used to calculate allowances for an employee temporarily covering a VP role is a notional figure agreed with the Unite Union which was, at the relevant time, £62,500.[17]There is no contractual right to receive the allowance. It is discretionary. The policy states at the start, ‘The principles, provisions, process and guidance define our position and do not form any part of your contractual terms with Barclays’. The wording of the ‘principles’ also makes this clear. It states that ‘You may get an allowance if…’ (my italics) and then sets out the criteria.[18]That policy allows for discretionary payments to be made to employees if they are covering other roles on a short-term basis such as sickness, family leave, holiday or secondments for less than three months or for longer secondments up to 12 months where there is a formal recorded secondment agreed. The claimant’s situation did not fall into any of those categories.[19]Even though the claimant’s circumstances did not fall within those set out in the ‘relief work at a higher grade allowance’ policy, once the role had been evaluated the respondent’s manager was instructed by Human Resources to begin paying the claimant ‘relief at higher grade payments’ on top of his existing salary from November 2023.[20]I find on the basis of the witness evidence and the evidence in the bundle, that both the claimant and the respondent’s understanding was that this payment was being made under the relief work at a higher grade allowance policy, even though, as a matter of fact, the conditions for that allowance were not satisfied.[21]Mr. Knock was unable to explain how the relief payments were calculated. Initially Mr. Knock was required to input key information into the HR Hub including hours worked, grade etc. and the system would provide him with a figure that should be paid to the claimant as a relief payment.[22]In around July 2024, the respondent moved on to a system called Workday. From that point Mr. Knock was required to complete an excel spreadsheet outside of the Workday system that would calculate how much in relief payments the claimant should be paid and he would then input that figure into the system. Mr. Knock had reservations about the process used to calculate the payment.[23]Mr. Knock was not required to input the higher VP salary. That figure was provided by the system. He understood that the intention was to bring up the salary to the minimum VP salary, but he did not know how figure for the minimum VP salary was reached.[24]Ms Ibbotson’s instructions were that that the figure used to calculate the payments to the claimant was the notional starting salary that had been agreed with Unite the Union.[25]The claimant received the following relief payments: December 2023: £242.31 January 2024: £242.31 February 2024: £265.38 March 2024: £242.31 May 2024: £504.80 July 2024: £492.78 September 2024: £528.65 November 2024: £252.40 December 2024: £161.00 January 2025: £252.40 February 2025: £504.80 April 2025: £492.88[26]On 7 August 2024 Paula Bostock, the respondent’s HR director, wrote to Mr. Knock as follows: … unfortunately there is no way we can actually change the grade out of cycle, however we can pay them the new amount (i.e. do the full salary increase now to what they would get if promoted - as long as we manage expectations there will be nothing additional when the grade formally changes on 1st March). So they won't lose out financially and we will put through the actual grade change in this year's IP process. I don't believe there will be any other impact in terms of benefits / access where they would be disadvantaged, and it will just get formalised at the next IP opportunity. Do you think you will be able to land this message with them to reassure them they are in effect the new grade now, it will just be a formality at year end?[27]On 9 August 2024 Mr. Knock wrote to the claimant as follows, passing on this offer: … The response from Paula is there should be no out of cycle promotions granted, but we can we can (sic) pay them the new amount (i.e. do the full salary increase now to what they would get if promoted – as long as we manage expectations there will be nothing additional when the grade formally changes within the next cycle). Following the investigation and conclusion above I would suggest you take some time to digest and consider how you would like to proceed and what support you require from me. I can appreciate this is not the desired outcome and the whole objection to the current process is not financial and purely about recognition in relation to what you do and respect amongst your colleagues/peers[28]The claimant was not given any numbers to review and he did not respond to the offer to implement the ‘full salary increase’ in August 2024. It was more important to the claimant to be ‘correctly promoted’ to VP level because of selfesteem and equilibrium amongst his peers.[29]The outcome of the grievance letter dated 31 January 2025 records that ‘When discussing this with Paula, she stated the conversation that had taken place via email, with herself and a member of her team regarding the ability for the business to request a higher payment to be made – thus being a rate equal to a higher annual to salary. Whilst this option was presented to the business, it was not something that they chose to proceed with.’[30]The claimant took part in an IRP cycle in September 2024. He attended an interview in about December 2024. He was successful and was appointed with effect from 1 March 2025. Once the decision had been made to appoint the claimant, the rewards team, taking account of various factors, determined his starting salary to be £71,000 plus other specified benefits. Prior to this determination, neither the claimant nor the respondent knew that he would be paid £71,000. As the claimant put it the number ‘materialised’ at that stage. It was not objectively ascertainable before the rewards team has made their assessment. He was paid this from 1 March 2025.The relevant law
[31]A worker has a right not to suffer unauthorised deductions: see the title to section 13 Employment Rights Act 1996 (ERA). By section 13(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 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[32]Although the definition of wages in ERA 1996 s 27(1)(a) is a broad one, it is limited by the condition that the payment must be 'payable under [the worker's] contract or otherwise'. This means that there must be a legal entitlement to the sum in question.[33]A worker may present a complaint to a tribunal that an employer has made a deduction in contravention of section 13: see section 23(1). The time limit is three months from the date of the payment of wages from which the deduction was made or the last deduction in a “series”: see section 23(2)(3). Where the tribunal upholds the complaint, it makes a declaration and orders the employer to pay the worker the amount of the deduction: section 24(1).[34]For this purpose ‘wages’ are defined in section 27 in the following terms: (1) In this Part ‘wages’, in relation to a worker, means any sums payable to the worker in connection with his employment, including- (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise... The subsection goes on to list, at (b)-(f), certain types of payments as falling within the definition of “wages”, such as statutory sick pay, statutory maternity pay and sums paid in pursuance of an order for reinstatement.[35]The payments listed in section 27(2) are excluded from the statutory concept of “wages”. These include payments in respect of expenses; pensions, allowances and gratuities in connection with retirement or as compensation for loss of office; and payments “to the worker otherwise than in his capacity as a worker”. Benefits in kind are also not treated as wages, save for certain vouchers, stamps or similar documents which have a fixed monetary value and can be exchanged for money, goods or services: section 27(5).[36]A ‘quantum meruit’ claim, where someone seeks payment for work that goes beyond the scope of an existing contract, falls outside section 27. In Abellio East Midlands Ltd v Thomas [2022] EAT 2045 the EAT held that a ‘quantum meruit’ claim falls outside the Delaney v Staples [1991] ICR 331 core conception of wages, does not appear to fall within any of the items listed in section 27(1)(a)-(f), and appears to be dissimilar to the other types of payments listed in that subsection. The EAT held that a quantum meruit cannot be brought under section 27 because it does not fall within the statutory concept of ‘wages’.[37]The EAT also identified that the amount due by way of quantum meruit calls for assessment by the Court of the value of the services provided at the time, making it difficult to identify any quantifiable sum which is ‘properly payable’ prior to its quantification by the court based on ex post facto evidence.Discussion and conclusions
[38]First, the claimant argues that the relief payments that he received from November 2023 were calculated using an incorrect VP minimum salary, which was inconsistent with his starting salary in March 2025 of £71,000. I refer to this as the ‘relief payments claim’.[39]Second, the claimant argues that he was entitled to be paid a VP grade salary from January 2023, when he began performing VP duties. He says that the salary should have been paid at the level that he was paid from 1 March 2025 i.e. £71,000 gross basic pay per annum plus benefits such as bonus, pension and shares at the March 2025 level. I refer to this as the ‘salary claim’.[40]I deal first with the relief payments claim. The claimant argues that the ‘relief payments’ that were made should have been made at a higher level. He points out that the relief payments amounted to about £250 per month, whereas when he was finally appointed his salary increased by approximately £500 per month. He says that this shows that the calculation of the relief payments were wrong.[41]I have found that the claimant’s circumstances did not fall within those set out in the ‘relief work at a higher grade allowance’ policy, but once the role had been evaluated the respondent’s manager was instructed by Human Resources to begin paying the claimant ‘relief at higher grade payments’ on top of his existing salary from November 2023. I have found above that these payments were understood by both parties to be paid under the relief work at a higher-grade policy. Accordingly I find that the payments paid to the claimant were discretionary payments.[42]However, having exercised its discretion to make a relief payment, and having informed the claimant that he would be paid a relief payment, I find that there was implied agreement that the relief payment would calculated and paid in accordance with the method set out in the policy. I find that the claimant was legally entitled to be paid that relief payment calculated in accordance with the policy (see Chequepoint v Radwan [2000] EWCA Civ B3 and Farrell Matthews & Weir v Hansen [2005] IRLR 160 EAT).[43]In principle therefore, if the payments were not calculated and paid in accordance with the policy, the claimant would have been paid less than what was properly payable and an unlawful deductions from wages claim could be brought.[44]The policy provides a fixed formula for calculating relief payments. The employee is paid the higher of either 5% of the starting salary or the difference between their current salary and the minimum starting salary of the role they are covering. In this case, the respondent used the latter formula.[45]The claimant argues that the relief payments should have been based on the difference between his AVP grade basic salary and the actual basic salary of £71,000 that he received when promoted to VP. For 2023/2024 there is a difference of £12,000 per annum (71,000-59,000). in 2023/2024 there is a difference of £9,000 (71,000-62,000).[46]I do not accept that the claimant was entitled to be paid relief pay calculated on the basis of the claimant’s actual starting salary at VP level.[47]First, the figure of £71,000 was not determined until February/March 2025 after he had successfully been appointed to the role. It was assessed and determined by the reward team based on the claimant’s individual circumstances. It was not a figure that was objectively ascertainable in advance. That figure could not have been used to calculate the relief payment in, for example, December 2023.[48]Second, the policy does not provide for the employee’s actual starting salary to be used. The policy provides for the ‘minimum starting salary’ to be used.[49]Having rejected that argument, I have considered whether the claimant has, in any event, shown that the respondent miscalculated the relief payments and that they should have been at some higher rate.[50]It is right to record that the respondent’s evidence on the calculation of the relief payments was unsatisfactory. Mr Knock did not know how the relief payments were calculated. He did not know what figure was used for the VP starting salary. He could not explain why there was a difference between the claimant’s eventual starting salary and claimant’s AVP salary plus the relief payments. He simply entered the claimant’s current salary details into the HR hub or, later, a spreadsheet and selected the higher grade as VP and the system or the spreadsheet calculated the amount for him. He had ‘reservations’ about how the calculations were made. There was no evidence to support Ms Ibbotson’s submissions that there was no minimum starting salary for a VP and therefore the respondent used a notional figure of £62,000 that had been agreed with Unite.[51]However, there was evidence before me to show that, in the claimant’s case, the figure was calculated using the respondent’s usual processes for calculating relief payments. That is the process that I have found was followed, as described in paragraphs 21-23 of the findings of fact. For the reasons I have given above the fact that there is a significant difference between the figure that would be produced using the claimant’s actual starting salary of £71,000 and the figure that he was paid does not suggest that there was any error of calculation or that the respondent input the ‘wrong’ figure. The calculation is based on the minimum starting salary. For any employee whose ultimate starting salary is higher than the minimum, there will be a shortfall.[52]Neither does the fact that Mr Knock had no knowledge of the method of calculation and had reservations about how the calculation had been made, give me a basis on which I could find that some mistake or error was made, or that the ‘wrong figure’ was used, such that the claimant was paid less than was properly payable.[53]Other than the difference between the relief payments as paid and the relief payments that would have been paid if calculated using the claimant’s actual starting salary of £71,000, the claimant has not put forward any other figure that should have been used for the ‘minimum VP salary’.[54]On the evidence available, I cannot find that the respondent used an incorrect figure or misapplied its policy. The process followed was consistent with the respondent’s usual method for calculating relief payments, even though the precise figure for the minimum VP salary was not evidenced.[55]For the above reasons I am not persuaded, on the balance of probabilities, that the claimant was paid any less by way of relief payments than what was properly payable.[56]Turning to the broader salary claim, the claimant cannot succeed on the basis that he deserved to be paid at VP level, or that it was fair for him to be paid at VP level, or that his work had been valued at VP level. He can only succeed if there is a legal entitlement to pay at the level claimed.[57]The claimant has not used the term ‘quantum meruit’ but I refer to this for completeness because he puts the claim in his claim form as follows: Claim is for working at a higher grade for period of 2 years with no financial compensation and reward. I was promised an in-role promotion at start of 2023 from AVP to VP but this did not happen until March 2025…within months was Performing full VP duties… This was a clear case of expecting VP output without VP title or compensation. Exploitation, plain and simple!!!!!!!!!![58]To the extent that that is a claim that he performed additional duties outside the scope of his contract, for which it is fair that be remunerated on a ‘quantum meruit’ basis, the EAT has confirmed in Abelio, that a quantum meruit claim cannot be brought as a claim for unlawful deduction from wages. ‘Quantum meruit’ cannot therefore be the basis of the claimant’s legal entitlement to payment at VP level in the claim before me.[59]The salary claim therefore depends on whether there was an express or implied term of the claimant’s contract which entitled him, between January 2023 (or any later date) and March 2025, to be paid a basic salary of £71,000 plus the pension, bonus and share entitlements that he was paid following his in-role promotion in March 2025.[60]Under the express written terms of the claimant’s contract, entered into in 2022, he was not entitled to be paid at VP level. His salary is specified as £52,185 in the contract and the role is expressly stated to be ‘Sales Performance Reporting Manager, Assistant Vice President’. That salary increased every year, in accordance with his contract, as set out in my findings of fact, but it remained at AVP level.[61]In the respondent’s IRP process an evaluation at a higher grade does not automatically give rise to an immediate increase in pay. In-role promotions only take place as part of an IRP cycle and after an interview. It is only at the point of promotion that the new salary is agreed and paid.[62]There is no express term of the claimant’s contract, whether oral or in writing, entitling him to be paid at VP level either when he takes on duties at VP level, or when his role is formally evaluated at VP level.[63]There was no express agreement, whether oral or in writing, to vary the claimant’s basic salary at any point before March 2025 (other than the usual annual increase). An increase in basic salary was proposed by the respondent’s HR director in August 2024. This offer was made to the claimant by his line manager, Mr Knock, in an email dated 9 August 2024. In that email the claimant was asked to ‘consider how [he] would like to proceed’. No figures were provided to the claimant and he did not respond to that offer. It appears from the grievance outcome letter that the respondent also decided not to proceed with this. In any event, no agreement was reached to vary his basic salary and other benefits.[64]There was no evidence of an oral express variation of the contract. Given the respondent’s size and processes, if there had been an oral express variation of the claimant’s salary, I would have expected it to be followed up with formal documentation evidencing or referring to the agreement.[65]There was certainly no express agreement to increase the claimant’s basic salary to £71,000. Although the claimant is claiming a basic salary of £71,000 (plus other amounts) from January 2023, that figure was not agreed until March 2025. That sum was not objectively ascertainable before it was determined in about February 2025. It was not properly quantifiable at the time the claimant says it fell due.[66]Finally, there is no evidence before me that could support a finding that there was any implied variation of the express terms of the claimant’s contract by conduct to entitle him to a basic salary of £71,000 and the March 2025 benefits before his in-role promotion took effect.[67]On the above grounds I find that the claimant had, prior to 1 March 2025, no express contractual entitlement to be paid a basic salary of £71,000 or to be paid the increased pension, bonus and shares to which the claimant became entitled in March 2025.[68]The claimant asserted, in the alternative, that there was an implied term entitling him to be paid a base salary of £71,000 and increased pension etc. The claimant did not set out the basis upon which this term might be implied. There are a number of reasons why I reject this argument.[69]Primarily, I reject it because it contradicts the express terms of the claimant’s contract as to salary. No term can be implied into a contract that contradicts an express term.[70]Further, under the respondent’s in-role promotion policy the evaluation of a role is only the first stage in the process. The promotion remains explicitly subject to, and takes place after, a successful interview. An implied term that gave rise to an entitlement to pay at VP level following an evaluation or once an employee took on duties at VP level would not only contradict the express terms of the policy but it would render the policy unworkable.[71]In any event, neither business efficacy nor the unexpressed intention of the parties justifies the implication of a term. The express arrangements are clear, even if the claimant thinks they are unfair. Employees are entitled to the higher salary on successful appointment after an interview as part of an IRP cycle, not on a formal evaluation of their role at a higher grade. There is no basis to conclude that it was the unexpressed intention of the parties that the entitlement would arise on evaluation or on taking on higher level duties.[72]For all those reasons, I find that:72.1 The claimant was not legally entitled to a basic salary of £71,000 along with the related pension, bonus and share entitlements, until his in-role promotion took effect on 1 March 2025. Prior to that date he had no legal entitlement to those amounts. They were not therefore ‘properly payable’.72.2 The claimant has not established that the relief payments were less than was properly payable.[73]On that basis the claim for unlawful deductions is dismissed. Approved by: