A Elliott v P&J Dust Extraction Ltd — 2021

The claimant worked for P&J Dust Extraction Ltd as Accounts Department Manager from 23 November 2018 until her employment ended on 8 November 2019 after she resigned on notice. The tribunal found that the amount properly payable to her on 29 November 2019 was £2,676.59, made up of £1,895.92 salary, £111.52 for a day’s holiday taken, and £669.15 for accrued annual leave. The respondent withheld the whole amount pending a set-off exercise based on alleged losses said to arise from the claimant’s negligence.

The tribunal held that the respondent had no enforceable contractual term authorising the deduction. Although the offer letter, induction material and employee handbook referred generally to documents forming part of the contract, the deductions clause in the handbook was not treated as a contractual term. The tribunal found that the handbook did not distinguish clearly between contractual terms and policy, that the claimant’s offer letter did not mention the deductions clause, and that the claimant did not sign the later written statement of particulars issued in September 2019. The tribunal also noted that a later variation could not authorise deductions for earlier conduct.

The respondent also failed to establish that the claimant’s conduct amounted to negligence for these purposes. The tribunal found that the mistakes relied on were honest mistakes, that several of the alleged losses were not shown to be caused by the claimant, and that some items were not credible or not properly attributable to her, including management time, estimated accountants’ fees and the HMRC payment point. It also found that the respondent had not raised negligence at the time, had not put disciplinary or performance measures in place, and had withheld the claimant’s pay in full before quantifying the alleged losses. The claim succeeded under section 13 ERA 1996 and the respondent was ordered to pay £2,676.59 gross.