De Jong v Dine Murrayfield Limited — 2023

The claimant was employed by Dine Murrayfield Limited as Head Chef from about 13 July 2022. The offer letter dated 8 July 2022 stated a starting salary of £32,000 rising to £35,000 after probation, with a 50-hour week and payment at £12.50 per hour for hours worked above the minimum. A later written contract in December 2022 repeated the salary of £35,000, referred to clocking in and out, and stated that salaried employees were required to work a minimum of 45-50 hours per week or as required by the company.

When the claimant resigned in May 2023 and his employment ended on 18 June 2023, the respondent withheld his final pay. The tribunal found that the final payslip showed no payment for his last 1.5 weeks' work and no payment for 1.15 weeks' accrued holiday pay, and that the respondent deducted 2.65 weeks' pay on the basis that the claimant owed 142 hours. The respondent relied on section 14(1)(a) of the Employment Rights Act 1996 and said the deduction represented recovery of an overpayment.

The tribunal rejected that case. It found that the claimant had been employed on a salaried basis, that the contract did not contain any term allowing the respondent to keep a running debit and credit of hours and deduct sums from final salary, and that there was no custom and practice binding the claimant because he had not been told of the arrangement. On the evidence, the claimant had not received an overpayment of wages, so section 14(1)(a) did not apply.

The tribunal declared that the claimant had suffered an unlawful deduction of wages in the sum of £1,783.65 gross and ordered the respondent to pay that amount. It also directed that any lawful PAYE income tax or National Insurance deductions could be made only if the respondent notified the claimant of the deductions, remitted them to HMRC, and produced proof if requested.