Mr A Hughes v Bs Eaton Limited — 2022

Mr A Hughes brought a claim for unlawful deduction from wages arising from lay-off and suspension arrangements at Bs Eaton Limited. The tribunal found that the respondent operated a lay-off practice in a business affected by reduced demand during the early months of the coronavirus pandemic, and that this practice had become an implied term of the claimant’s contract by custom and practice. The tribunal accepted evidence that the claimant had been told on 3 April 2020 that he would be on special lay-off pay, and held that the respondent had satisfied the notification requirement under section 13(2)(b) of the Employment Rights Act 1996.

The tribunal then considered the claimant’s suspension from 6 May 2020. It found that the respondent could not justify keeping him on lay-off from 22 June 2020 onwards, because demand and materials availability had improved significantly and the respondent was struggling to cover his role. The tribunal accepted that the claimant had expressed concerns about returning to work, but held that those comments did not establish that he was unwilling and unable to return if asked. It also noted that he returned when invited to do so.

The tribunal therefore held that the claimant’s wages were unlawfully deducted from 22 June 2020 to 30 August 2020, measured as the difference between the lay-off payments already made and his full pay. It rejected any double recovery for holiday periods, finding that the claimant had already been paid holiday pay at his full rate in those weeks. The gross unlawful deduction was calculated at £4,755.58, based on full pay of £7,675.58 for weeks 12 to 22 less £2,920 actually paid.