Miss S Holmes v Tellemachus Limited — 2019

Miss Holmes resigned on 12 April 2019, and the respondent deducted £945 from her final pay under clause 19 of the written terms, which required repayment of estimated recruitment costs if she resigned within three years. The tribunal dismissed the claims for breach of contract and unlawful deduction from wages in respect of that deduction and the associated consequential losses. It held that clause 19 was an entitled deduction under the contract, that the penalty clause rule did not apply because the clause did not operate on breach, and that the National Minimum Wage argument did not render the provision unlawful.

In reaching that conclusion, the tribunal referred to Cavendish Square Holding BV v Makdessi; Parking Eye Ltd v Beavis, Cleeve Link Ltd v Bryla, and HMRC and Lorne Stewart Plc. It accepted that the clause quantified recruitment costs by reference to an estimate and could lawfully be applied at a lower figure than the contractual estimate. It also rejected the claimant's arguments about tax treatment and data protection as matters outside the tribunal's jurisdiction, and made no finding on consequential losses because they were contingent on success on the recruitment-fee claim.

The holiday pay claim succeeded. The tribunal found that the claimant had worked for 12 weeks, was entitled under regulation 14 of the Working Time Regulations 1998 to 5.46 days' holiday on leaving, and had taken one day's holiday in March. It accepted that the respondent's rounding down to 5.36 days caused an underpayment of £24, so it awarded that sum.

The tribunal also found an unreasonable failure to comply with the ACAS Code of Practice on Discipline and Grievance Procedures because the respondent heard the grievance appeal but did not invite the claimant to attend the appeal meeting. It increased the award by 10%, equal to £2.40, under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. The final award was £26.40, and the tribunal decided not to reconsider the judgment after inviting representations from the parties.