Mr T Cunliffe v BAKO (Western) Ltd — 2022

The tribunal found that the claimant’s resignation letter, dated 30 May 2021, was effectively communicated on 1 June 2021, so his contractual one-month notice period would ordinarily have run to 1 July 2021. The respondent’s letter of 4 June accepted the resignation as a practical matter but stated that the contractual leaving date should have been 1 July and that a deduction would be made under clause 4.1.8 of the employee handbook. After a telephone conversation on 7 June, the tribunal found that the parties agreed to extend the resignation date to 1 July if the claimant returned on 14 June and worked out his contractual notice.

The tribunal held that the 7 June agreement was not conditional on the claimant remaining physically at work and not taking certified sick leave. The claimant was signed off sick from 9 June with anxiety, depression and stress, and the tribunal accepted that the handbook contemplated sickness during a notice period and provided for statutory sick pay in those circumstances. Because Mr Holland had not made any no-sick-leave condition clear, the tribunal concluded that clause 4.1.8 did not apply and the deduction of 14 days’ pay was not authorised.

In the alternative, the tribunal considered whether clause 4.1.8 would have justified the deduction if the claimant had left on 11 June without consent. It found the clause was incorporated into the contract, but the wording limiting deductions to the respondent’s actual loss meant the deduction could not exceed that loss. On the evidence, the respondent had not calculated any actual loss and the claimant’s duties were covered without significant cost. The tribunal therefore held that the deduction was not authorised in any event and granted the claimant a declaration that his unlawful deduction complaint was well founded. It awarded the gross sum of £749.16, made up of nine days’ pay of £1,037.61 plus the undisputed £250 savings refund, £98 holiday purchase refund and £10 phone allowance, less £576.45 for five days’ holiday pay and £70 for the training course refund. The claimant did not prove any consequential financial loss such as bank charges or interest payments.