Mr John Currie v St Andrews Bay Development Limited — 2023

Mr Currie brought a Part II Employment Rights Act 1996 claim against St Andrews Bay Development Ltd for unlawful deduction from wages. At the outset of the hearing he confirmed that he was only pursuing a claim for 138 hours of time off in lieu which he said had accrued; the holiday pay element in the claim form was not pursued. The tribunal heard evidence from Mr Currie and from Ms Carol Ann Hibbert for the respondent, and found the claim had been presented in time.

The tribunal accepted that the contract provided for annualised hours, a gross annual salary of £21,320 paid monthly, and a time off in lieu arrangement, although it said the wording was unclear and in places contradictory. In practice the respondent operated a weekly TOIL bank: hours over 40 in a week were added and hours below 40 were deducted. The claimant was not shown the running total during employment, but the tribunal accepted the respondent’s records and accepted the claimant’s evidence that he was told on 29 January 2023 that there were 138 hours of TOIL recorded for him.

The tribunal preferred the claimant’s evidence that his employment ended on 26 December 2022, when he told a colleague that he would not be returning after what his line manager had said to him about his absence on 17 December 2022. It found that he had been justified in ending the contract without notice and described the manager’s conduct as amounting to a repudiatory breach on the evidence before it. It nevertheless found that, by the date of termination, the TOIL bank had been exhausted.

On the wages claim, the tribunal held that there had been no unlawful deduction. It considered that the contractual wording, read as a whole, was sufficient to found the respondent’s TOIL bank practice, and that the statutory provisions on authorised deductions and overpayments meant that, even if a deduction issue had arisen, it would not have been unlawful. The claim was dismissed and no monetary award was made. The tribunal added that the contract and the operation of the TOIL bank were not clearly presented to employees and that the respondent’s record-keeping around termination was lacking, but those observations did not change the outcome.