Miss J. George v Clements Agency Limited — 2020

The tribunal found that Miss J George had unbroken continuity of employment from 2013 and that the operative contract of 2 April 2015 referred to performance-related pay but did not set out a clear scheme or any express term allowing the respondent to reduce that pay. It accepted that the respondent operated an informal system of upward and downward pay adjustment in practice, but found that it was not clearly documented or consistently explained to staff, and that the claimant did not understand before February 2018 that her pay could be reduced on performance grounds.

Applying section 13 ERA 1996 and Agarwal v Cardiff University and anor [2018] EWCA Civ 2084, the tribunal held that the sums deducted from the claimant's wages were properly payable and that no implied term authorised reductions. It rejected the respondent's case that the contract or the parties' course of dealing permitted deductions for underperformance, and it found that the claimant had not agreed to the reductions introduced after the November 2018 meeting. The tribunal accepted that some reduced payments in October 2018 and later weeks were caused by sickness absence rather than deductions, but found unlawful deductions for the underperformance-based reductions from 5 November 2018 onwards.

The tribunal awarded £1,035 for unlawful deductions, calculated by comparing the sums actually paid with the £425 weekly amount it found was payable, and then adjusting for unpaid sick leave in the relevant weeks. It also found that the claimant resigned on 6 February 2019 in direct response to the breach and was therefore constructively dismissed. The basic and compensatory award for that dismissal claim was left for a separate remedies hearing.