Miss T Hudson v Education Staffing Link Ltd — 2022

Miss T Hudson brought a claim for furlough pay of approximately £2,500, which the tribunal treated as a claim for unlawful deduction from wages. The tribunal found that the last possible deduction in the period March to August 2020 was 31 August 2020, so the three-month time limit expired on 29 November 2020. Because the ET1 was not presented until 20 July 2021, the claim was out of time unless it was not reasonably practicable to present earlier.

The tribunal rejected the claimant’s explanation that she only realised in January 2021 that she had not been paid. It noted her evidence that she thought other payroll emails were from the respondent, but said it was highly questionable that she could have been so mistaken and observed that she accepted pay information from the respondent would not normally come that way. It also noted that after January 2021 she did not move promptly, instead raising the issue with the respondent, going through grievance, ACAS early conciliation, and then presenting the claim months later.

If wrong on time, the tribunal also found the substantive claim failed. It accepted that the CJRS caused initial confusion and that the respondent sought written agreement from eligible staff, but held that the claimant’s 1 April 2020 email did not amount to prior consent because the respondent had said further written correspondence would follow. The 21 April 2020 email was said to be clear that she needed to open, read, review and act on the attachment, which she did not do. The tribunal concluded that she did not consent to furlough and was not therefore entitled to furlough pay; it also accepted that the 23 April 2020 thank-you email was sent in error.