ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) Judgment of the Employment Tribunal in Case No: 4104060/2024 Heard at Edinburgh on the th of June 2024 at am Employment Judge J G d’Inverno Miss C Stockman v Represented by: Mr J O Dalrymple, Citizens Advice Bureau All Seasons Philipburn Ltd — 2024

The claimant resigned without notice on 20 December 2023 and was owed payment for 6.2 days of accrued but untaken paid annual leave, agreed for the purposes of the hearing to have a gross value of £715.36. The respondent deducted that same sum from the claimant’s final wage. The issue for the tribunal was whether the deduction was authorised because, as the respondent argued, the claimant had been overpaid wages during the period 1 October to 20 December 2023, or whether it was an unauthorised deduction within section 13 of the Employment Rights Act 1996.

The respondent said the claimant had worked only 346 hours rather than the 488 hours it said she would have worked at 42.5 hours per week, and that this meant she had been overpaid by more than the amount deducted. It relied on estimates based on computer log-in records and breakfast times. The claimant said her pay was a fixed annual salary of £30,000 paid in equal monthly instalments, that her contract did not tie salary to hours worked, and that no agreement had been reached to vary her normal hours. She also said the respondent had never required her to submit hours records or raised any issue of overpayment before she resigned.

The tribunal found that the respondent had not proved, on the balance of probabilities, that an overpayment had occurred, or the amount of any overpayment. It accepted that the respondent’s director was not being untruthful, but held that he was unable to prove the actual hours worked and was only giving an estimate based on assumptions. The tribunal also found that the claimant’s entitlement to salary was not dependent on a particular number of hours in any period, and that failing to work particular hours would not of itself retrospectively convert ordinary salary payments into an overpayment.

For those reasons the complaint succeeded. The respondent was ordered to pay the claimant the gross sum of £715.36, with the tribunal noting that the payment would be made gross and that the claimant would account to HMRC for the appropriate tax and National Insurance contributions.