In person For the v Mr Choudhary, HR Director — 2021

The claimant started work on 22 October 2018 as a nursery cook/assistant under a contract that provided four weeks' notice during probation and clause 24 deductions for loss, damage and agency fee reimbursement. After probationary reviews and an informal warning about conduct, the tribunal found that events on 19 March 2019, when the claimant confronted the director in the open-plan nursery about a Tesco order, were as the respondent described. It accepted the respondent's evidence, preferred the staff emails and statements over the claimant's account, rejected the allegation that staff statements had been procured by bribery, and found that the claimant had fundamentally breached the contract by gross insubordination and bullying. The claim for notice pay was therefore dismissed and the respondent's summary dismissal was held to be lawful.

On the wages claim, the tribunal found that the deductions of £1,171.32 for agency fee recovery and £35 for a uniform/lost property item were authorised by the written contract for the purposes of section 13 of the Employment Rights Act 1996. It held that the respondent's discretion under clause 24 was not exercised capriciously or irrationally, applying the contractual discretion principles discussed in Braganza, FC Gardner, Clark and Horkulak. The tribunal also rejected the argument that the agency fee clause was an unenforceable penalty, referring to Dunlop, Cleeve Link and Giraud, and noting that Cavendish was not apt on the facts because the claimant had little real opportunity to object to the contract.

The tribunal further found that the uniform clause was lawful and preferred the respondent's evidence that the uniform had not been returned. It concluded that the claimant remained liable for the balance of the agency fee clawback and uniform cost, and the respondent's counterclaim for breach of contract succeeded in the sum of £412.68.