B Walters v Todos Media Ltd and 4 others — 2023

The claimant brought a single unlawful deduction from wages claim covering three heads: unpaid December 2022 salary, employee pension contributions deducted in October to December 2022 and not paid into NEST, and employer pension contributions for the same period. The respondent filed no response and did not appear at the hearing. The tribunal heard evidence from the claimant, accepted him as honest and reliable, and relied on his oral evidence together with the contract, December 2022 payslip, NEST contribution history and NEST correspondence.

On the salary head, the tribunal found that the claimant's employment ended on 28 December 2022 and that his December salary was due by the end of that month but was not paid. It held that the non-payment was an unlawful deduction under section 13 ERA 1996. The tribunal calculated the unlawful deduction at £6,199.99 gross, being the claimant's December salary of £6,458.33 less £258.34 that would have been deducted for employee pension contributions. It then applied section 25(3) ERA 1996 because the respondent had already paid the claimant £2,000 around the beginning of March 2023.

On the employee pension contribution head, the tribunal found that £258.34 per month should have been paid into NEST for October, November and December 2022 but was not. It held that the respondent's failure to pay those sums into the pension scheme was still an unlawful deduction, referring to Gibson v Lothian Leisure. That head was therefore upheld in the gross sum of £775.02.

The employer pension contribution head failed. Although the tribunal found that the respondent had not paid £193.75 per month into NEST for October, November and December 2022, it held that employer pension contributions are not 'wages' within section 27(1) ERA 1996 and therefore cannot found an unlawful deduction from wages claim. Citing Somerset County Council v Chambers, the tribunal dismissed that head. The tribunal's final order required the respondent to pay £4,975.01 gross, subject to tax and employee national insurance deductions if required by law.