Claimant v Leachman v Gloucestershire County Council — 2023

The claimant, Miss V Leachman, was employed by Gloucestershire County Council as a Child Protection Chair from January 2019. The dispute concerned a retention payment of £1000 due in April 2022, which the respondent withheld after the claimant had been placed under formal performance management in November 2021. The claim was for unlawful deduction from wages under section 13 of the Employment Rights Act 1996.

The tribunal found that the retention payment itself had become an implied term of the claimant’s contract. It relied on the job advertisement, which referred to retention payments for Advanced Practitioners, the repeated past payment of £1000 on six previous occasions over about three years, and the absence of any clear communication to the claimant that the payment was discretionary or non-contractual. The tribunal applied the objective approach discussed in Park Cakes Ltd v Shumba and related authority, and noted the contra proferentem principle when considering ambiguity in the contractual documents.

However, the tribunal did not accept that there was an implied term entitling the respondent to withhold the payment because the claimant had been subject to a formal performance procedure. The policy document relied on by the respondent stated that the payment was non-contractual and could be withheld if a formal performance plan or disciplinary warning applied, but the tribunal found there was no sufficient evidence that the claimant had been informed of that term before the decision to withhold payment was made. The tribunal considered her November 2021 email as consistent with her checking whether the retention payment was affected, rather than as proof that she already knew the withholding condition.

The tribunal also held that section 13(2)(b) was not satisfied because the claimant had not been notified in writing, prior to the deduction decision, of the existence and effect of the term relied on by the respondent. It therefore concluded that the respondent made an unlawful deduction of £1000 from the claimant’s wages and ordered payment of that sum.