How To Find Out If You Can Get A Job At Pinnacle

Held at: Douglas Between

ALEXANDER JAMES LEA

and

IN THE EMPLOYMENT TRIBUNAL Case Number 10/10

On: 13 May 2010

Claimant

PURPLE ONLINE ACCOUNTANCY LIMITED Respondent

CHAIRPERSON: Mrs H Smith

For the Claimant For the Respondent:

MEMBERS: Ms Anne Marie Weadock Mr Steve Salter

REPRESENTATION In person

Mr David Parker (Director)

DECISION

UPON considering the Claimant's claim for unlawful deduction of wages and the Respondent's response and UPON hearing evidence from the Claimant and Mr Parker for the Respondent, the Tribunal FINDS that there was no unlawful deduction from the Claimant's pay and dismisses the Claimant's claim.

REASONS Background

1. The Claimant applied to the Tribunal by a Claim Form dated 4 February 2010 complaining of an unlawful deduction from his pay by the

Respondent. The amount involved was quantified later as £1,713.32 net, which figure was agreed by the Respondent as the appropriate amount subject to the Tribunal's findings.

2. The Respondent. by a Response dated 5 March 2010, denied that there had been any unlawful deduction.

3. It was common ground that the Claimant was employed by the Respondent from 13 August 2009 but there was a dispute as to his final day.

4. The Claimant resigned by letter dated 29 December 2009, purportedly giving one month's notice. The Respondent says that on 29 December 2009 the Cloimant's notice period was only one week and that one week's pay was duly paid to him.

5. A short chronology is as

foJlows:-The Evidence

5. I 13.08.09 Claimant was employed by the Respondent 5.2 16. I 1.09 Claimant had an appraisal wherein his probation

period of three months was extended for a further three months

5.3 07.12.09 Claimant resigned giving one week's notice 5.4 07. I 2.09 Claimant retracted his resignation

5.5 15,12,09 Claimant and Mr Parker met for a review of the probationary period. This meeting is the crux of this case. 5.6 29.12.09 Claimant resigned again [such resignation being

accepted) giving one month's notice.

6. The Claimant signed a contract of employment dated 7 July 2009 which, inter alia, provided under clause 1.3 that the first three months would be subject to a probationary period. This period could be extended at the Respondent's discretion.

7. Under clause 16.6 thereof the notice period [after one month's

period and one month after successful completion of the probationary period.

8. It was agreed that on 16 November 2009 the Claimant's probationary period was extended for three months. The Respondent stated that this was due to the Claimant's attitude, which was on occasions rude and inflexible. The Respondent purported to put forward other reasons which were never communicated to the Claimant. The Tribunal discounts these reasons in their entirety since they were never taken up with the Claimant. The Claimant denied that he was unco-operative. Whilst he objected in the meeting, he did not respond to the extension of his probotionary period in writing, although a draft had been prepared by him. Again, the Tribunal cannot take the draft into consideration but does not need to do so since the Claimant accepts that his

probationary period was, in fact, extended on 16 November 2009 to expire on 16 February 2010 with reviews in December 2009 and January 2010.

9. It was also agreed that on 7 December 2009 the Claimant tendered his resignation with one week's notice. The Claimant stated that the main reason for his resignation was that he did not feel valued as a member of the team and the negative appraisal had obviously effected his

enthusiasm. He felt that his relationship with the Respondent had been damaged. Mr Parker told the Claimant to think about his resignation because, if he took up employment with Pinnacle from whom he had received an offer, this would be deemed to be in direct competition with the Respondent's business and therefore in breach of restrictive covenants in the Claimant's contract of employment. Mr Parker admitted that he had warned the Claimant that if the Respondent enforced the restrictive covenants, which it intended to do, then there would potentially be large legal costs penalties against the Claimant.

10. The Claimant gave evidence that he found this threotening and therefore retracted his notice that same day. He wished to take legal advice and did not want to risk litigation.

II. Both parties agreed that there was an amicable meeting on 15

December 2009 to review the probationary period extension. Mr Parker stated that the tenor of the meeting was that the Respondent wished to help the Claimant as much as possible to succeed so that he would be confirmed in his post and if the Claimant improved the extension would not be extended further after the initial extension (ie after February 20 10). Mr Parker stated that he was still not entirely satisfied with the Claimant's attitude. Further. the Claimant was equivocal in his commitment to the Respondent - he was unsure as to whether he wanted to stay. As a result. Mr Parker insisted on an answer as to his commitment by the end of that day. The Claimant indeed confirmed his commitment to the Respondent on 15 December. Mr Parker stated that if the extension had been lifted. this would have been evidenced in writing as the Respondent was meticulous in committing any changes to contracts into written form.

12. At this juncture. the Tribunal notes that the claim to the Tribunal could have been avoided entirely if a note of the review meeting had been made and signed by both parties as a true record of the meeting. It was unfortunate that the Respondent did not note the meeting at all.

13. In contrast. the Claimant states that the review resulted in Mr Parker terminating the extension so that the Claimant was confirmed in post from that date. He cannot remember the exact words said. He stated that he asked Mr Parker to commit this to writing but Mr Parker replied that his verbal confirmation was as good as in writing. The Claimant does not appear to have pursued this at all. If he was as keen on pursuing his rights as Mr Parker portrayed (eg not staying beyond five pm) one would have expected him to insist on written confirmation and

to follow up the meeting with a memo to Mr Parker stating his understanding of the import of the meeting.

i 4. This meeting is at the very core of the Claimant's claim. If the Claimant is right. then he was required to give one month's notice when he resigned on 29 December 2009. If the Respondent is right. then only one week's notice was required. The fact that the Claimant gave more notice need not be accepted by the Respondent and they were only contractually bound to pay one week's notice.

15. On 16 December 2009 the Claimant sought advice from his Advocate regarding the restrictive covenant. It is accepted by the Tribunal that this was the Claimant's principal concern. Although Mr Parker was dismissive of the Claimant's mention of his wife and child, the Tribunal accepts that as sole breadwinner the Claimant would be concerned if he was threatened with legal action and, in effect, no employment other than in very restricted areas.

16. The Claimant's Advocate assisted the Claimant in drafting his resignation letter of 29 December 2009. The Claimant made the point that he would not have offered one month's notice unless he had been required to do so as he hod employment lined up and was keen to start.

17. On 30 December the Respondent took advice from Advocates and in effect excluded the Claimant from its premises to protect its commercial interests. Mr Parker on more than one occasion termed this removal as 'dismissal' but the Tribunal is convinced that this was no more than a turn of phrase and that in fact the Claimant was sent on garden leave until the end of his notice period.

18. There follows a very unfortunate series of text messages. That any employer/employee dispute should be conducted by text message is most disturbing. There is no substitute for a written, signed

19. By early January the Claimant's and Respondent's Advocates were locked in correspondence. mainly relating to the restrictive covenant. which is, of course. not within the Tribunal's remit. In the exchange of correspondence. however. Messrs Corlett Bolton on behalf of the Claimant wrote to Messrs Moroneys for the Respondent on 13 January 2010 in the following terms:

'Probationary Period

With respect, the matter of as to when the probationary period was to cease was not in dispute. Your client purported to terminate the contract by way of text message by giving notice of one day and not by means of one weeks written notice as required under the terms of the Employment Contract. It is therefore maintained that insufficient notice has been given. In contrast, however, our client gave your client one month's notice as a gesture of goodwill in on attempt to mitigate the

circumstances. '

20. The Respondent states that this is unequivocal evidence that the probationary period was still extant as at the date of resignation and that the month's notice was purely a goodwill gesture (which was not accepted).

21. The Claimant states that this letter troubled him, but that the main thrust of the letter was directed at the restrictive covenant and wrongful dismissal.

The law

22. Section 21 of the Employment Act 2006 ('the Act') is the appropriate section relating to employers' deductions from wages (see the

Employment Tribunal website for its full terms). Subsection (2) states that an employer 'SHALL NOT (our emphasis] make any ... deduction from any wages unless:

(0) the deduction is required or authorised to be mode by virtue of any statutory provision or any relevant provision of the worker's contract; or

(b) the worker has previously signified in writing his or her agreement or consent to the making of it. '

23. Section 25 of the Act enables a worker to complain to the Tribunol that his/her employer has mode a deduction from wages in contravention of section 21.

24. The Respondent's case is that there has been no deduction at all. The contract ended on 5 January 2010 and the Claimant was paid to that dote. The Claimant's case is that the contract ended on 29 January 2010 and he should have been paid to that dote.

Application of the law to the Facts

25. There is a straightforward factual discrepancy as to what was said in the meeting on 15 December 2009. The Tribunal has, therefore, to decide which version of events is the most compelling.

26. The Claimant was very vogue about the words used at the meeting. He could not recall much save for the point about his request that the decision to lift the extension be committed to writing. In contrast, Mr Parker was very clear about the terms of the conversation. He was still concerned about the Claimant's attitude both to clients and to his continued employment with the Respondent. There was no discussion about the Claimant doing well and proving himself worthy of

confirmation in his post. An equivocal attitude to continued

employment would not appear to be a resounding endorsement of the Claimant's commitment so as to induce an employer to reverse the decision to extend the period. The Tribunal accepts Mr Porker's version of the meeting and FINDS that the extension to the probationary period was not lifted.

27. The Tribunal is reinforced in this view by the very clear terms of the Claimant's Advocate's letter of 13 January 201 0 which states that the probationary period was still in force and that one week's notice was appropriate, the Claimant's month's notice being a gesture of goodwill. This letter, which was presumably written on instructions is, in the

Tribunal's view, entirely supportive of the Respondent's case.

28. There was much peripheral information which was not pertinent to the restricted point of dispute in this case. The Tribunal does not need to make any findings of fact in relation to these other matters.

29. In the light of the above finding, the appropr'late notice was one week's notice and the Claimant has been paid for that periOd. There was, therefore, no unlawful deduction of the wages and the Tribunal dismisses the Claimant's cloim .

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Hazel F Smith Chairperson

Doted this 20 day of May 2010

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