The Claimant deferred payment of his salary for cashflow reasons and on termination of employment alleged that these payments were now due. The ET rejected his unlawful deduction from wages claim under s13 ERA but upheld his contract claim (which capped any amount to £25,000). The EAT allowed his appeal against the s13 issue and rejected the Respondent's appeal against the contract claim (read the full text here. The Respondent appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, rejecting the Respondent's argument that the ET judge had inferentially made a decisive finding of fact that the company could not afford to pay the claimant. Nor could the CoA accept that there was any argument before the EJ about the possibility that such inability could be relied on by the company as at termination. The case proceeded on the basis that if there was an agreement to pay the Claimant a salary at all, he would be paid that salary. It may be that to sustain that basis some implication needed to be made as a matter of law but that was never an issue before the EJ and could not be made an issue now. If it had been an issue, the case would have proceeded on different lines, since there would have to be a finding that the company could not, in fact, afford to pay the Claimant his salary if the matter were to be disposed of fairly. The Respondent was ordered to pay the Claimant's costs of £13,000.