E Durand v V 'Fengting' Xu: 6034622/2025
JUDGMENT
[1]The claimant suffered an unlawful deduction from wages and is entitled to payment of £940.[2]The payment is not subject to deductions of tax and national insurance.REASONS
[1]A certificate of correction has already been issued in respect of the amount payable, underlined above.[2]These written reasons are provided at the request of the respondent. As usual some editing has taken place for the sake of clarity, and here and there some points are expanded, so these written reasons shall stand as the final version.[3]This hearing was arranged to decide Ms Durand’s claim for unlawful deduction from wages. She worked as an au pair for Ms Xu and according to the claim form she was entitled, under the terms of her contract, to a reimbursement of £470 after the first 6 months and then a further £470 after 12 months. These payments were in respect of a UK Immigration Health Surcharge, payable by visa applicants when applying to come to the UK, and referred to in the contract as an NHS surcharge fee.[4]There was no relevant disagreement about the facts and so it was not necessary to hear formal evidence from either party. 1 of 4[5]Ms Durand began working on 6 May 2024 on a 12 month contract. The relevant clause of the contract was as follows: “II. 6. The host [Ms Xu] agrees to sponsor the Youth Mobility Visa by contributing to the annual surcharge. The host shall pay the au pair £470 after six months if the au pair has completed the period to the hosts satisfaction and intends to stay for [a] further six months. Shall pay (sic) another £470 after 12 months if the au pair has completed the period to the host’s satisfaction and intends to stay further into the second year with the family.”[6]In October 2024 they agreed verbally that Ms Durand would extend her stay in the UK until 7 August 2025. At the same time, the weekly payments under the contract increased from £150 to £240. Ms Xu says that they also agreed that the NHS surcharge fee would not be repayable in view of these changed arrangements, something Ms Durand disputes. In the absence of any written agreement however it is not necessary to resolve that point.[7]Wages enjoy special protection in law, and section 27 of the Employment Rights Act 1996 defines wages as “including any fee, bonus, commission, holiday pay or other emolument referable to [her] employment, whether payable under [her] contract or otherwise.”[8]It is not been suggested that this rebate did not fall within that definition but for the avoidance of doubt the sums were clearly referable to her employment and are in fact payable under the contract.[9]According to section 13 of that Act: (1) An employer shall not make a deduction from wages of workers employed by him unless- (a) the deduction is required or authorised to be made by virtue of the 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.[10]For the purposes of this case, the main question therefore is whether there was written consent to making the deduction, and it is agreed that there was not.[11]It is still necessary to be satisfied that each payment was properly payable. Looking at the terms of the contract, which were drafted by Ms Xu, the only conditions relating to the first payment were that Ms Durand had completed six months’ service to her satisfaction and it has not been suggested otherwise. 12.[13]The second payment is slightly less clear-cut. There needs to be satisfactory completion of the 12 month period, which again has not been disputed. There also needs to be an intention to stay further into the second year with the family.[14]Ms Durand makes the point that she did stay into the second year with the family and there is no need for her to actually remain in post for another year, or even to commit to do so. Ms Xu responds that she had already given her notice by the end of the 12 month period and so there was no such intention. 2 of 4[15]I prefer Ms Durand’s submissions on this point. In fact, although not discussed during the hearing, Ms Xu appears to be mistaken since verbal notice was given on 10 July 2025 and this was confirmed in writing on 13 July 2025, well after the 12 month point. In all, Ms Durand worked for 2 months and 3 weeks of the second year. Even if I am wrong with regard to the dates, it still follows that she intended to stay beyond the 12 month point and actually did so. Hence the second payment was also due.[16]The only remaining issue is in relation to time limits, particularly in relation to the first payment. Section 23(2) of the Act provides that the Tribunal shall not consider a complaint under this section unless presented before the end of the period of three months, beginning with the date of the payment in question.[17]However, by subsection (3), where a complaint is brought in respect of a series of deductions or payments, time runs from the date of the last one in the series. There is nothing to prevent two payments from forming a series and although they are six months apart they are expressly provided for in the contract at the outset, so in fact there is no difficulty in regarding them as a series of two payments at six monthly intervals. Accordingly, no time limit issue arises.[18]For all the above reasons the claim is upheld. Application for Reconsideration[19]When requesting these written reasons, Ms Xu also made an application for a reconsideration, which can be therefore conveniently be dealt with at the same time. The basis of the application, made on 1 April 2026, is as follows: “At the hearing on 5 March 2026, the Employment Judge stated that he did not have my evidence bundle and had not reviewed it. As a result, my evidence was not considered when the decision was made. I submit that this has materially affected the outcome and that it is in the interests of justice for the judgment to be reconsidered.”[20]It is correct that Ms Xu’s bundle was not available at the outset of the hearing, but an index was, and I explained that it did not appear to contain any documents which I did not have, either from the Tribunal file or from the papers supplied by Ms Durand, so it was not necessary to take further time in acquiring them. Ms Xu did not dispute that. She did not identify or refer to any papers that I did not have and, in particular, did not suggest that there was any agreement in writing which allowed the deduction of the payments in question. Nor has she in the application. Accordingly, no purpose would be served now in having a further hearing to consider the contents of that bundle. The material has been considered. Since there is no prospect of the decision being varied or set aside, the application is refused.