Ms E Mages v Tobar Group Ltd: 8002229/2025
JUDGMENT
The judgment of the Employment Tribunal is:- (First) That in the period 1 April to 31 July 2025 inclusive the respondent made unauthorised deductions from the claimant’s wages in the total net sum of £2,002.31 (TWO THOUSAND AND TWO POUNDS AND THIRTY ONE PENCE), contrary to the provisions of section 13 of the Employment Rights Act 1996 (“ERA”). (Second) That the respondent shall pay to the claimant the sum of £2,002.31 (TWO THOUSAND AND TWO POUNDS AND THIRTY ONE PENCE) being a sum equivalent to the unauthorised deduction made. ETZ4(WR) (Third) That the 14th of September 2025, being the Effective Date of Termination of the claimant’s employment, the claimant had an accrued, but untaken as at that date, balance of 3.26 (rounded up to 3.5) days (31.5 hours) of paid annual leave entitlement, for which she fell to be remunerated at the net rate of £13.20 per hour (total £415.80). (Fourth) The claimant had an entitlement in law to receive the net amount due to her in respect of the 3.5 accrued but untaken days of paid annual leave entitlement in her final pay remittance on 30 September 2025. (Fifth) The respondent made an unauthorised deduction from the claimant’s last wage, in respect of accrued but untaken paid annual leave entitlement as at the Effective Date of Termination of her employment, in the net sum of £415.80. (Sixth) The respondent shall pay to the claimant the sum of £415.80 (FOUR HUNDRED AND FIFTEEN POUNDS AND EIGHTY PENCE) net being a sum equivalent to the unauthorised deduction made. Employment Judge: J G d'Inverno Date of Judgment: 25 February 2026 The Claims[1]In the course of Case Management Discussion conducted at the outset of the Hearing parties confirmed and the Tribunal clarified and recorded that the claims before the Tribunal for determination at Hearing were those of:- (First) Whether in the period 1 April to 31 July 2025 the respondent had made an unauthorised deduction from the claimant’s wages by reason of failing to permit her to work her contracted for minimum 45 hours per week and failing to pay her for the same, contrary to the provisions of section 13 of the Employment Rights Act 1996 (“the ERA”), (Second) Whether, by reason of an alleged complaint of breach of the paid annual leave provisions of the Working Time Regulations the claimant had due and resting owing to her, as at the Effective Date of Termination of her employment on 14 September 2025 a balance of accrued but untaken proportionate paid annual leave entitlement for which she had a right in law to receive payment in her final pay remittance; and, (Third) Whether, in failing to so pay her, the respondent had made a further unauthorised deduction from her wages. (Fourth) Whether in so failing to provide and pay the claimant for minimum working hours the respondent breached the claimant’s Contract of Employment entitling her to a remedy in damages.[2]The claimant lodged a bundle of productions which, although not covered by a Contents Page nor having individual pages numbered was otherwise compliant with the Tribunal’s direction. She had likewise provided a copy to the respondent.[3]The respondent had failed to comply with the Tribunal’s Directions and had not prepared or intimated any bundle. In the course of the Hearing the Tribunal permitted the respondent’s representative to exhibit to the Tribunal and to the claimant and thereafter read from certain documents in the course of giving his evidence.[4]Both the claimant and the respondent’s representative gave evidence on oath. Findings in Fact and in Law[5]On the evidence presented the Tribunal made the following essential Findings in Fact and, upon consideration of parties’ submissions and the applicable law the following Findings in Fact in Law, restricted to those relevant and necessary to the determination of the issues.[6]The claimant was employed by the respondent company, in the capacity of Café/Coffee House Manager from 22 January to 14 September 2025.[7]The Effective Date of Termination of the claimant’s employment was 14 September 2025.[8]The claimant’s employment with the respondent was regulated by a written Contract of Employment which is copied and produced in the claimant’s bundle.[9]The Contract was signed by the claimant and by and on behalf of the respondent by their authorised signatory and Area Manager Daniella Porebska on 22 January 2025. 10.Clause 1.5 of the Contract provides:- “You shall be guaranteed a minimum of 45 hours of work shifts per week. ….. Upon determination of your capabilities and efficiency, you will be given a higher number of hours per week. …. We shall expect you to work those hours that are necessary to discharge your role effectively. This may include working evenings and weekends”; and, at Clause 15, “Our holiday year begins on the 1st of January and ends on (b) the 31st of December.” (c) and at 3.1 under Remuneration “3.1 As an hourly paid employee your salary will be £15 per hour.”[11]During the course of her employment with the respondent the claimant had a contractual obligation to work and a reciprocal right to be offered and to be paid for a minimum of 45 hours worked per week. 12.During her period of employment with the respondent, the claimant had an entitlement in law to be provided with a minimum of 45 hours of work per week and to be paid for the same at her gross hourly rate of £15 per hour. 13.The claimant’s gross hourly rate was £15. 14.In the period April to July 2025 inclusive the claimant’s average net hourly rate was £13.02. 15.The claimant was contracted to work 45 hours per week, 5 days per week, the same being 5 x 9 hourly shifts. 16.In the month of April 2025 the claimant was entitled to be offered and paid for 135 hours of work but was offered and paid by the respondent for only 121, leaving a deficit for April of 14 hours. 17.In May 2025 the claimant was entitled to be offered 180 hours worked but was offered and only paid for 122.5 hours, leaving a deficit for May of 57.51 hours. 18.In June 2025 the claimant was entitled to be offered and paid for 135 hours worked but in the event was offered and paid for only 90.75 hours worked (leaving a deficit for June of 44.25 hours). 19.In the month of July 2025 the claimant was entitled to be offered and paid for 180 hours worked but in the event was paid for only 117.9 hours leaving a deficit for July of 35.93 hours. 20.Across the months of April, May, June and July 2025 the total deficit in the hours offered to the claimant by the respondent, and paid for by the respondent, was 151.69 hours short of her contractual entitlement in that period. 21.By failing to allow the claimant to work her contractually entitled hours in the period April to July 2025 and thus reducing her earnings and she being entitled to be remunerated for those hours at the net rate of £13.20, the respondent made an unauthorised deduction from the claimant’s wages in the total sum of £2,002.31. 22.Separately, and in any event, the respondent’s failure to provide the claimant with her minimum contracted for working hours constituted a breach of contract on the part of the respondent giving rise on the part of the claimant to a right to be compensated in damages for losses incurred by her and resulting from the breach. 23.The measure of damages in contract is a sum of money, the payment of which, puts the innocent party into the position that they would have been in but for the other party’s breach of contract. The resultant loss sustained by the claimant and flowing from the breach was her net loss of wages being (151.69 hours) x (£13.20 net per hour) which equals £2,002.31. 24.The claimant is separately, but not additionally, entitled to be compensated by the respondent in the net sum of £2,002.31 in the name of damages for breach of contract. 25.At no point in the course of her employment did the claimant agree to oppose contractual reduction of her minimum contracted for weekly working hours. 26.The Tribunal was satisfied that there had been no acquiescence on the part of the claimant to any such variation, she having repeatedly protested the lack of hours stressing that the provision of them and the collateral ability to be paid for them at her contracted for hourly rate had always been, and remained an essential condition of the Contract between the parties. 27.The claimant’s holiday year ran from 1 January until 31 December. 28.The claimant was contracted to work a regular 45 hours per week, 5 days per week. 29.In the event of her working for a full holiday year the claimant’s annual statutory entitlement would have been to 252 hours of paid annual leave. 30.In the holiday year 1 January to 31 December 2025 the claimant, whose employment commenced on 22 January and terminated on 14 September 2025, accrued a proportionate entitlement of 168.5 hours. 31.Against the above entitlement in the holiday year in question the claimant took a total of 17 days (153 hours) of her accrued paid annual leave entitlement comprised of, 5 days in March, 5 days in April, 5 days in June and, 2 days in September supplemented by 3 days of time off in lieu. 32.As at the Effective Date of Termination of her employment, 14 September 2025 the claimant had an accrued but as yet untaken entitlement to 10 hours of paid annual leave at the net rate of £13.02 per hour in the total sum of £132. 33.The claimant was entitled to receive payment in respect of her accrued but as yet untaken 10 hours of paid annual leave entitlement in her final pay remittance. 34.The respondent did not include payment for the claimant’s 10 hours of outstanding accrued paid annual leave in the 30 September remittance and accordingly made an unauthorised deduction from the claimant’s last wage in the net sum of £130. Submissions, Discussion and Determination 35.Under reference to the oral and documentary evidence presented by her the claimant invited the Tribunal to hold that she:-(a) Had a contractual entitlement to be provided with and to work a minimum of 45 hours per week;(b) That the respondents had failed to comply their obligation to provide her with the contracted for minimum hours in the period 1 April to 31 July 2025 inclusive; and(c) That they had accordingly made an unauthorised deduction from her wages in that period and, alternatively, had breached her Contract of Employment in that regard entitling her to be compensated in damages for her resultant wage loss;(d) That as at the Effective Date of Termination there was outstanding and due and resting owing to her a balance of accrued but untaken paid annual leave entitlement for which she was entitled to be compensated;(e) For the respondent, their representative placed before the Tribunal 2 emails from the claimant’s then Area Manager to the claimant both dated 15 April 2025, narrating 2 complaints made about the service/cleanliness of the Coffee House premises of which the claimant was Manager;(f) He submitted that on the preceding evening when giving him instructions the respondent’s Director had said there were at least another dozen or so such emails of complaint, but had been unable to provide him with copies or detail of the content of them;(g) He went on to submit on behalf of and in accordance with the respondent’s Director’s instructions that by reason of the respondent being dissatisfied with the claimant’s performance the respondent was absolved of their obligation to provide her with her minimum contracted for 45 working hours per week;(h) Although the submission was not made in such terms, the Tribunal considered that the proposition being advanced was that the claimant fell to be regarded as being in prior breach of contract and, in those circumstances should not be entitled to enforce the minimum working hours contractual right against the respondent. 36.The claims presented may be founded either in section 13 of the Employment Rights Act (Unauthorised Deduction from Wages) or alternatively in contract, invoking the Tribunal’s contractual jurisdiction awakened on termination of employment. 37.On the evidence presented the Tribunal was satisfied that the claimant had an entitlement in law to be offered and permitted to work her minimum contracted for weekly working hours of 45 hours per week, clearly set out in the written Contract of Employment which regulated the employer employee relationship. 38.The Tribunal was satisfied that there had been no post contractual consensual variation of the Contract such as to reduce or elide that entitlement in law. 39.By declining to offer the claimant her minimum contracted for working hours the respondent effectively made a recurring deduction from her wages in terms of section 13 of the Employment Rights Act 1996. 40.The respondent’s representative did not seek to persuade the Tribunal that the deduction which had been made was an authorised deduction and thus one which the respondent was permitted to make in terms of sections 13 and or 14 of the ERA. 41.The submission advanced by the respondent’s representative and said to be on the instructions of the respondent’s Director, who had opted not to be present at the Hearing, was to the effect that since the respondents were dissatisfied with the claimant’s performance/standard of work they were entitled to act in the manner which they had done. 42.Understanding that the respondent’s representative was a lay person and seeking to understand the submission at its highest, the Tribunal considered that what was being advanced on behalf of the respondent was a contention that the claimant had been in prior breach of contract such that she was not entitled to seek to enforce a contractual provision in her favour which was to the effect that she be offered a minimum of 45 hours per week. 43.Dealing with that submission, the Tribunal found the evidence presented, amounting to no more than 2 letters of customers complaint about aspects of the condition/quality of the food and temperature of the coffee provided in the premises managed by the claimant, and one of which was said to have occurred on a day when the claimant was not working in the premises, fell far short of that which would have been required to establish a prior breach of contract on the part of the claimant. 44.Separately and in any event, the protection afforded to employees and workers in terms of section 13 of the Employment Rights Act 1996 is one designed to protect employees from deductions from their wages being made in circumstances other than where they have given prior written consent in unequivocal terms. Let it be assumed that the respondent had established some prior breach of contract on the part of the claimant, which the Tribunal has not so found, while that may have given rise to certain other rights of action on the part of the respondent it would not, of itself, entitle the respondent to avoid the protection afforded to workers under section 13 of the ERA by entitling them to make what would be an otherwise unauthorised deduction from the claimant’s wages. 45.There was no serious dispute between the parties as to the arithmetic valuation of the sums deducted these being capable of calculation either from the wage slips provided by the respondent, where these had been issued to the claimant, and, in their absence, by what the Tribunal considered to be the next best available evidence that of the time sheets from which the respondent’s representative read in the course of giving his evidence. 46.The Tribunal found the claimant’s evidence regarding her paid annual leave entitlement to be both credible and reliable and accepted it as such. That evidence was unchallenged by the respondent’s representative. 47.The Tribunal considered the respondent’s representative’s bald evidence, hearsay of the respondent’s non attending Director, and to the effect that the clamant had been paid all the holiday pay that she was due by separate bank transfer albeit not vouched by a pay slip, to be insufficient to discharge the burden of proof which sat with the respondent in circumstances where they did not dispute either the amount or value of the claimant’s accrued but untaken proportionate entitlement, but rather contended that they had made payment to the claimant of such sums as were due to her in respect of untaken entitlement. 48.The Tribunal was accordingly satisfied that on the evidence presented that the claimant had discharged her onus of proof establishing that the sums claimed by her as are now reflected in the Tribunal’s Judgment were so due. The Tribunal has entered Judgment in favour of the claimant accordingly.