Mrs P Leigh v Bright Eyes Day Care Nursery Ltd — 2021

Mrs Leigh was employed by Bright Eyes Day Care Nursery Ltd as a Nursery Practitioner and gave notice on 13 March 2020. The parties agreed that her employment would end on 24 April 2020. The tribunal found that she had no fixed or normal working hours and that her hours varied, although she worked regularly in excess of 7.5 hours per week.

The tribunal accepted that after the Covid-19 lockdown there was a conversation on 26 March 2020 in which Ms Clayton told the claimant that the nursery was closing and there would be no more work for the foreseeable future. Although there was later evidence that the nursery remained open for some vulnerable children and keyworkers, the tribunal found that the respondent had at the time decided to close the nursery. It also found that, after one later discussion about paperwork, the respondent did not make clear that the claimant had to attend in person or that pay would be withheld if she did not.

Applying section 89 of the Employment Rights Act 1996, the tribunal held that the claimant reasonably believed she was not required to attend the nursery and could continue working from home as she had done previously. She was therefore entitled to be paid for the notice period up to 24 April 2020. The tribunal found that she had been paid up to and including 26 March 2020, so the unpaid period was four weeks and one day.

Using the average weekly pay calculated under section 224 of the Employment Rights Act 1996, the tribunal found an average weekly wage of £169.13 based on 251.5 hours over the relevant 12-week period at £8.21 per hour. It awarded payment in lieu of notice of £710.18 gross, subject to deductions for tax and national insurance.