Case 1405998/2020 · Employment Tribunal
- IN PERSON FOR THE v - Mr M Dyer — 2021
- Case reference
- 1405998/2020
- Decision date
- 26 July 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Cadney Date
Parties
2 namedClaimant
- IN PERSON FOR THE
Respondent
Key findings
Tribunal's reasoningMr Atkinson was employed from 25 November 2019 as Sales Director (North) on pay of £80,000 per year, plus a car allowance of £4,800 and an employer pension contribution of £2,400. On 31 March 2020, after the respondent notified staff about furlough in response to the coronavirus outbreak, he signed to agree to being designated a furloughed worker, stating that there was “no viable alternative”. He then received £2,500 gross per month while furloughed.
On 11 June 2020 the claimant was told he had been selected for redundancy. The respondent said it expected reduced business as the economy recovered and no longer needed two sales directors. It initially gave four weeks’ notice, then by letter of 22 June 2020 extended the notice period to 12 weeks, giving a termination date of 3 September 2020. During that notice period the claimant continued to be paid furlough pay. The tribunal held it was unnecessary to decide whether the contractual notice period was four or twelve weeks, because in practice he received 12 weeks’ notice.
The central issue was whether the claimant was entitled to full pay or furlough pay during the notice period. The tribunal rejected the argument that a term should be implied requiring full pay during notice, applying the business efficacy and officious bystander tests and finding that the contract worked coherently without such a term. It also rejected a construction of the furlough agreement that would confine the agreed reduction in pay to the period before notice was given. The tribunal held that the express contractual variation to furlough pay continued during the notice period and that the signed consent supported that conclusion.
The tribunal therefore held that the correct contractual pay during the notice period was furlough pay, not full pay, and dismissed the claim for unpaid notice pay. Because of that conclusion, it did not need to decide whether full pay would have included only basic salary or also the car allowance and pension contribution.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Breach of contract | Claim for unpaid notice pay. The tribunal held that the furlough variation agreed on 31 March 2020 continued during the notice period, so furlough pay remained payable and the claim failed. | Dismissed | — | — |
Legal tests applied
7 references- business efficacy test
- officious bystander test
- Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd
- Ali v Petroleum Co of Trinidad and Tobago
- Spectrum Agencies v Benjamin
- Investor's Compensation Scheme Ltd v West Bromwich Building Society
- s.87(4) ERA 1996
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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