McIntosh v DB Malorey Limited: [2024] TRE 29

Mr McIntosh was employed by DB Malorey Limited (the Employer) between April 2021 to December 2023 when he resigned citing constructive unfair dismissal.

In May 2021, the Employer deducted £40 from Mr McIntosh’s wages in respect of a parking fine. There was no written agreement between the parties authorising the Employer to deduct such an amount.  At the final hearing the Employer conceded that this was an unauthorised deduction and that the Employer was liable to repay Mr McIntosh this amount.

Mr McIntosh also sought repayment for other parking fines and the cost of a recovery truck to recover Mr McIntosh’s work van when it became stuck somewhere he had parked it.  Such costs were paid by Mr McIntosh.  Mr McIntosh was asked by the Tribunal on what basis the Employer was required to repay Mr McIntosh for these sums despite no deductions having been made by the Employer in respect of these sums.  Mr McIntosh asserted that it would be morally right.  The Tribunal dismissed this argument.

Mr McIntosh further claimed that if there was insufficient work available, he would not be paid for 40 hours per week (as stipulated in his contract).  The Tribunal analysed Mr McIntosh’s contract of employment which contained the following terms:

“Hours of Work The [Employer’s] typical working week is 40 hours per week between 8am and 4.30pm Monday to Friday. All working hours are to be agreed with the employer and to be completed from Monday to Friday unless otherwise instructed by the Employer.

Your monthly salary will be based on hours actually worked.  

Whilst the normal working hours are as stated, the Employer reserves the right to change the working hours to suit the needs of the business to be agreed in advance between the Employer and the Employee. …

Remuneration You will be paid a wage of £26.00 per hour. Wages are payable monthly on or around 31^st of each month by bank transfer to your nominated account based on the hours worked in each pay month.

A timesheet must be completed for every week worked and submitted to [email address] by 8am each Monday for the previous week. Failure to meet these requirements may result in your salary not be paid in your next available salary payment.   …

Holiday Entitlement 20 days (160 hours) per annum …

Holidays are at [the Employer’s] discretion, however, will be granted where at all possible.

Travel for holidays should not be booked prior to [the Employer’s] agreement as dates may require amendment.”

The Tribunal concluded these terms demonstrated that the contract was not a zero-hour contract and Mr McIntosh was to work an agreed number of hours for the Employer each week.  To enable the parties to comply with this term, the Employer must provide Mr McIntosh with that amount of work.  However, the express wording of the contract only required the Employer to pay Mr McIntosh for the hours actually worked.  The Tribunal considered whether it was implied that Mr McIntosh should automatically be paid for the contractually agreed number of hours, regardless of the fact he did not work them.  The Tribunal reminded itself that to imply a term into a contract, it must be persuaded that such implication is necessary on the basis that without the implied term, the contract would be inefficacious or absurd.  It emphasised that it was not necessary to imply a term to make a contract fair.

The Tribunal acknowledged that whilst it may be fair to imply a term into the contract in relation to payment being made for an agreed number of hours, it is not necessary for the contract to take effect or to prevent the contract from being absurd and to do so would be contrary to express written wording of the contract.  Mr McIntosh still asserted that the Employer was in breach of the requirement to provide him with 40 hours work per week and that he suffered losses as a result.  However, the Tribunal was provided with insufficient evidence to determine the amount of such losses and whether the Employer was liable for such losses and ordered that this aspect of the claim be determined at a subsequent hearing.

Mr McIntosh had to take five hours off work in June 2022 when he injured his hand.  He assumed that he had been paid for this time, regardless of the fact he was off work as he injured his hand whilst at work.  However, he received an email on 24 August 2022 from the Employer saying that the five hours Mr McIntosh took off on that day had been paid to him as holiday pay and accordingly his remaining holiday allowance was reduced by five hours.  Mr McIntosh asserted that at no point did he agree to this time off being considered holiday.  The Tribunal held that an employee’s holiday allowance cannot be automatically reduced because they are on sick leave, event if their sick leave would have been unpaid.  An employee needs to agree to take their holiday whilst on sick leave.

Mr McIntosh resigned on 15 December 2023.  The Employer accepted Mr McIntosh’s resignation and offered him the choice to either work his notice period or finish earlier if he wished.  Mr McIntosh asked to finish on 15 December 2023.  The correspondence between the parties did not show any animosity.  Mr McIntosh claimed he resigned on the basis that he was entitled to due to the Employer’s conduct.

The Tribunal considered the incidents and failures alleged by Mr McIntosh to have been committed by the Employer.  This included failing to pay Mr McIntosh for one hour’s worth of work. The Tribunal concluded that only this incident amounted to a breach of Mr McIntosh’s contract of employment.  However, whilst the tribunal acknowledged that a failure to pay wages is usually considered to go to the heart of the contract.  However, the tribunal held that the Employer’s failure to pay one hour of wages in this instance showed that it no longer intended to be bound by one of the essential terms of the contract.  The evidence before the Tribunal showed that there was a genuine dispute as to whether this hours’ worth of work was justified.

Full Judgement Here