Ms Bilyana Stoyanova v NYS Stratford Limited (t/a NYS Collection) — 2022

The tribunal found that Ms Bilyana Stoyanova worked a shift on 7 December 2020 at the respondent's Stratford kiosk, but that her attendance record was accidentally deleted when Mrs Myers manually adjusted the Brava system after an earlier clocking problem. As a result, the claimant was not paid for that shift, and the tribunal held that the respondent had made an unauthorised deduction from her wages in the sum of £74.25.

The tribunal also found that the claimant's WhatsApp messages in January 2021 about her December payslip made it reasonably clear that she was alleging she had not been paid all the wages due for the hours she had worked. Although she did not refer expressly to s.13 ERA 1996, the tribunal held that she had asserted a relevant statutory right for the purposes of s.104 ERA 1996. The tribunal distinguished the case from authority where an employee had merely sought a higher rate of pay, and treated the claimant's complaint as a straightforward assertion that she had not been paid her basic wages.

On dismissal, the tribunal rejected the respondent's suggested explanations of redundancy, poor performance, difficult attitude, lack of commitment and unauthorised leave. It found that the claimant had not had any documented performance concerns, that she was not the poorest performing sales assistant, and that there was no contemporaneous evidence that the respondent regarded her as lacking commitment or having taken unauthorised leave. The tribunal considered the tone and content of the 25 January 2021 WhatsApp exchange, the lack of further communication, and the fact that dismissal followed six days later, and concluded that the reason for dismissal was that the claimant had alleged infringement of her right not to suffer unauthorised deductions from wages.

The tribunal therefore held that the dismissal was automatically unfair under s.104 ERA 1996. It said that, given that conclusion, it was unnecessary to decide the claimant's alternative argument that if redundancy was the reason for dismissal, she had been unfairly selected for redundancy. A remedy hearing was to be listed, so no compensation was determined in this judgment.