ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100323/2019 & 4102768/2019 Hearing at Edinburgh on April 2019 Employment Judge: M A Macleod (sitting alone) Grahame Hamilton v Baileyfield Garage Limited — 2019

The claimant started work for Baileyfield Garage Limited on 24 September 2018 as a Vehicle Recovery Technician. His contract provided for pay at £9.50 per hour, overtime at £12 per hour, a normal five-day week, and a Working Time Regulations opt-out form was signed. The contract also required four weeks' notice and contained a clause allowing deductions connected with holiday excess and costs incurred in recruiting or hiring temporary staff if notice was not worked.

The tribunal accepted that the claimant was underpaid on the 2 November 2018 payslip: the slip showed £1,882.56 due, but only £1,552.92 was paid, leaving £329.64 unpaid. It also found that he had taken two further holiday days in October 2018 for which he was not paid. On that basis, the claimant had been unlawfully deprived of £519.64 in total. However, the tribunal also treated £50 of the outstanding amount as recoverable under clause 7 of the contract, so that the claimant's entitlement before the employer's counterclaim was £469.64.

The respondents' counterclaim was based on the claimant's failure to give the required four weeks' notice when he resigned on 13 November 2018 and left on 16 November 2018. The tribunal accepted that the contract allowed recovery of costs incurred in hiring replacement cover, and awarded £1,000 for the BRS Contracts invoice dated 23 November 2018. It rejected the separate £1,500 invoice as not sufficiently clear, and did not make any award for alleged vehicle-repair losses because the evidence was unsatisfactory.

After setting the claimant's due amount of £469.64 against the respondents' successful counterclaim of £1,000, the tribunal awarded the respondents £530.36. The judgment therefore records a successful unlawful deduction from wages claim in principle, but a net liability to the respondents once the contractual set-off and counterclaim were taken into account.