Miss N Wilsdon v Circus Day Nursery Limited — 2020

The claimant brought a claim for unlawful deduction of wages, with the dispute focused on the deductions made from her final payslip of £782.55. The tribunal accepted that she had signed her contract on 30 January 2019 and that it contained a general deduction clause and a notice clause providing that, if she left without working her full notice, any additional cost in covering her duties during the notice period not worked could be deducted from termination pay. The claimant resigned on 16 August 2019, knew that her notice would run to the end of December, and later told the respondent on 27 August 2019 that she was sick and would not work the remainder of her notice.

The tribunal held that the general deduction clause did not cover costs caused by termination or recruitment after the notice period; it was directed to sums owed to the nursery at termination. It accepted that the notice clause allowed recovery of the cost of covering duties during the notice period, but not the cost of recruiting a replacement. Applying ordinary contractual meaning in context, and construing ambiguity against the drafting party, the tribunal allowed agency costs incurred during the notice period only subject to specific exceptions.

Two items were disallowed from the agency costs. First, the £89.70 net plus £17.94 VAT charged for 28 November 2019 was not justified because the claimant did not work Thursdays. Second, the invoice dated 18 December 2019 relating to Miss Beamore, with a handwritten change to 20 December, was not sufficiently evidenced. Those items totalled £197.34. From total agency fees of £1,000.55, the tribunal deducted £197.34 and then gave the claimant credit for the respondent's wage saving of £417.72, leaving £385.49 as a justified contractual deduction.

The tribunal rejected the separate recruitment agent fee of £399 because that work related to recruiting a replacement and was not shown to be the cost of covering the claimant's duties during her notice period. It therefore concluded that the respondent could deduct £385.49 from the final salary of £782.55, leaving £397.06 due to the claimant, and ordered payment of that sum.