Background:

The claimant, a housekeeper, claimed that she suffered from an unlawful deduction from wages due to deductions from her final pay and failure to pay holiday pay.

The claimant gave notice of termination on 25th November to expire on 23rd December.   She worked until 19th December and that night she text her line manager to say that she was unwell and would not be able to work the next day and this was renewed for the 21st.  The claimant was only paid wages until 19th December.   The claimant’s contract of employment specified that sickness absence should be made with a line manager but that text message was not acceptable.  A deduction of £190 was also made to cover the costs incurred by the business as a result of the claimant not fulfilling her notice period.  There was also holiday pay outstanding of £3.99.

Outcome:

The claimant’s contract did say that where there was termination without giving notice then there could be an amount taken equal to any additional cost in covering the duties during the notice period.  However, the Tribunal noted that there was no distinction made between those who did not turn up for work during the notice period and those who were prevented from doing so through illness.   The purpose of the clause was to ensure that there was no sudden departures and the ordinary meaning was not to extend to illness, injury or death.  There was no evidence or suggestion that the claimant’s illness in December was a sham.  Additionally, there was no similar term in relation to those who were sick.  As a result, the Tribunal found that there was no authorisation for the deduction. On the holiday pay, it was found that the claimant’s calculation was correct and there was £3.99 owing.

Practical Guidance for Employers:

This case demonstrates the importance in having closely defined terms of the contract.  Here the deduction for loss incurred during the notice was quite wide and was silent on the way in which an individual was avoiding their notice.  In this case, as it was illness it was found that the deduction clause would not apply to the claimant.  This allowed for the deduction to be recovered by the claimant.  Whilst only small amounts of money, these cases do demonstrate some learning points when it comes to contractual clauses and their application.

You can view the full case here: https://www.gov.uk/employment-tribunal-decisions/ms-j-de-swarte-v-fife-housekeeping-ltd-t-slash-a-bright-and-beautiful-4101941-slash-2023