Ms A Clark v Abby Cleaning Scotland Ltd — 2020

Ms A Clark worked for Abby Cleaning Scotland Ltd from 17 September 2018. Her contract recorded an annual salary of £20,000, but the tribunal found her actual annual salary was £22,000, equivalent to a daily rate of £83.33. She resigned on 30 April 2019, gave notice, worked until 8 May, and then produced a fit note for stress. The respondent arranged agency cover while she was absent, and the claimant later signed a contract with another employer on 16 May 2019, but the tribunal accepted her evidence that that employment did not actually start until 10 June 2019.

The tribunal rejected the respondent's time-bar argument. It held that time under section 23 of the Employment Rights Act 1996 ran from 15 June 2019, the day the wages containing the deduction were paid, not from the earlier letter of 24 May 2019. Because ACAS early conciliation began on 12 September 2019, the claim presented on 28 September 2019 was in time. The tribunal also accepted the claimant's evidence that ACAS had not mentioned time limits.

On the merits, the tribunal found the respondent had used the wrong daily rate when paying May wages and holiday pay, producing shortfalls of £18.10 and £16.83. It also held that the contractual notice clause did not authorise the deduction of £912.89 for cover costs. The clause only permitted deductions for losses or additional costs arising from breach of contract, and the tribunal found those costs had been incurred because the claimant was absent on sick leave, not because of any contractual breach. It concluded that the deduction was unlawful and ordered repayment of £947.82 gross, with tax and national insurance to be deducted in the usual way.