Ms C Barber v Gastro Pubs Limited t/a Middletons Steakhouse and Grill — 2023

Ms C Barber worked for Gastro Pubs Limited T/A Middletons Steakhouse and Grill as a Head Chef from January 2022 until she resigned with immediate effect on 21 March 2023. Her final monthly wages, payable at the end of March 2023, were £2,025.76, but she did not receive that payment. The tribunal treated the issue as whether the respondent was entitled to withhold the final wages under the claimant’s contract of employment and section 13 ERA 1996.

The tribunal found that the claimant was not in "retail employment" for the purposes of sections 17 to 22 ERA 1996, because in her role as Head Chef she did not carry out retail transactions directly with the public or collect amounts payable in connection with such transactions. It therefore rejected the suggestion that those provisions provided the relevant basis for the deduction.

The respondent relied on a contractual deductions clause relating to cash shortages and stock deficiencies. The tribunal held that the clause did not authorise withholding the claimant’s wages on the facts proved. It found that the respondent had shown only a difference between two stock counts, valued at £3,769.07, but had not shown what the actual stock deficiencies were. It also held that the respondent had not proved that any shortages arose during shifts worked by the claimant, as the clause required. The tribunal further noted that it had not been shown that the additional contractual paragraph permitting recovery of the balance in full from final pay formed part of the claimant’s own contract.

Accordingly, the tribunal upheld the unlawful deduction from wages claim and ordered the respondent to pay the claimant £2,025.76 net, with the respondent liable to account for the tax and national insurance due to HMRC. The tribunal made no findings on who was to blame for the stock discrepancies and did not decide any claim about the failure to provide a final payslip, because no such claim had been brought.