Search our news, events & opinions

On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.

3 April 2014 0 Comments
Posted in Employment, Opinion

Penalty clause or genuine pre-estimate of loss

Author headshot image Posted by , Partner

In Cleeve Link Limited v Bryla the EAT has considered whether a clause in a contract was a penalty clause designed to deter breach of contract, or a genuine pre-estimate of loss and so a liquidated damages clause.

The Claimant was recruited from Poland as a care worker. The employer paid a recruitment agency fee and the costs of the flight. The contract contained a clause to the effect that “if the employee’s employment is terminated as a result of the employee’s misconduct… within 6 months of their date of commencement, the employer reserves the right to recoup these costs in full from the employee“.

The Claimant was sacked for gross misconduct after less than 3 months and the employer set off the costs it has incurred against her unpaid wages. She issued proceedings for unlawful deduction from wages.

The Employment Tribunal found in her favour that the clause was a penalty clause and so unenforceable. On appeal to the EAT however the clause was considered to be a liquidated damages clause because there was a connection between the amount to be claimed and the maximum loss that could be incurred.

The EAT pointed out that the key point to look at, in deciding whether a clause is a penalty clause or a genuine pre-estimate of loss, is whether, when the contract was entered into, this was designed as a deterrent or a genuine provision for compensation. The EAT also held that the clause has to be constructed on an objective basis and the genuineness and honesty of the parties was irrelevant. It also held that a comparison needed to be undertaken between the amount which could be recovered for loss through an action for breach of contract, and the amount set out in the contract as a fixed sum. If there was a huge gulf between the two, it is more likely that the clause was intended as a deterrent to breach of contract and so a penalty clause. If, however, there is some form of relationship between the figure to be recovered under the contract and the amount of loss it will be considered a liquidated damages clause, as here.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222

Leave a comment

Thank you for choosing to leave a comment. Please keep in mind that comments are moderated and please do not use a spammy keyword or a domain as your name or it will be deleted.





It pays to employ the right employment solicitor

Learn more


T: 020 7842 1496 (DDI)

Search our news, events & opinions