Mr C Umezuruike (Solicitor) For the v Respondent — 2022

Mr Gardner brought a claim under section 13 of the Employment Rights Act 1996 in three parts: unpaid notice pay, unpaid holiday entitlement, and arrears said to arise from an alleged July 2021 wage increase. The tribunal found that his starting salary was £42,000, that his pay increased to £46,000 in April 2021, and that the later alleged £8,000 rise was not a contractual pay rise but a conditional incentive linked to successful completion of the Hanover Square project at a profit.

On the alleged July 2021 increase, the tribunal preferred the evidence of Mr Prendeville and Mr Perry. It found that the offer was conditional, that the condition was not met, and that Mr Gardner had not shown any contractual entitlement to the further increase. That aspect of the unlawful deduction from wages claim was therefore dismissed.

On the notice pay issue, the tribunal accepted that Mr Gardner did not work from 2 to 8 December 2021, that he had not complied with the respondent’s sickness policy, and that the brief daily emails saying he was off sick were inadequate in the circumstances. The tribunal found that his absence was not genuinely due to sickness, was unauthorised, and meant the respondent was entitled to treat him as having left employment on 2 December 2021. The claim for notice pay was dismissed.

The holiday pay claim succeeded. The tribunal accepted that Mr Gardner had accrued 5 days of untaken holiday and held that clause 4.3 did not entitle the respondent to withhold that holiday pay to cover the cost of replacement labour. It found the deduction from the final wage slip unlawful and calculated the loss by reference to a gross basic monthly salary of £3,833.33, giving a week’s pay of £958.25 for the 5 days in issue. Judgment was entered for £958.25 gross, with tax and national insurance to be dealt with by the respondent.