Mr D Allen Mrs S Allen v DG Weaver Ltd — 2022

The claimants were married senior sales executives at a car dealership. Mr Allen had worked there since 1999 and Mrs Allen since 2011. Neither had been given a compliant written statement of particulars. The case focused on furlough, shielding, pay, and the events leading to both resignations in 2020. The tribunal upheld Mr Allen's claims for unlawful deduction from wages, constructive unfair dismissal, wrongful dismissal, and failure to provide written particulars. Mrs Allen succeeded only on the failure-to-provide-particulars point; her discrimination claims would have succeeded on the merits in part, but were dismissed for time reasons, and her constructive dismissal claim failed because she was found to have affirmed the breach.

For Mr Allen, the tribunal found that the furlough emails of 8 and 14 April 2020 created a contractual promise to pay 80% of average pay up to the £2,500 cap, with outstanding commissions to be dealt with separately. It held the respondent wrongly offset May commission payments against that furlough entitlement, and also made a further deduction of £555.87 from his final pay on 29 June 2020. The tribunal treated the furlough underpayment and the final-pay deduction as part of a series, so the claim was in time. The holiday pay complaints were either withdrawn or not made out, and the health and safety detriment claim failed because the refusal of home working was found to be driven by business reasons rather than by his safety concerns.

The tribunal upheld Mr Allen's constructive unfair dismissal claim on a cumulative basis. It accepted one September 2018 exchange as having occurred, found the pre-January 2019 holiday pay position undermined trust and confidence, found the 15 May 2020 unilateral move to a 5.5 day week did likewise, and treated the furlough pay breach as repudiatory in its own right. It rejected other vague allegations, found that he had not affirmed the breach, and held that the same facts supported constructive wrongful dismissal. The failure to provide written particulars was also upheld, and the judge recorded that a section 38 award would be dealt with at remedy.

For Mrs Allen, the tribunal found that paying SSP from 15 May 2020 instead of keeping her on furlough was unfavourable treatment arising from her shielding in consequence of disability, and that retaining her on furlough would have been a reasonable and less discriminatory adjustment on the merits. It rejected the respondent's objective justification case. However, it held that both the section 15 claim and the reasonable adjustments claim were out of time because the decision not to return her to furlough was a one-off act on 15 May 2020, not conduct extending over a period, and there was no basis to extend time just and equitably.

Mrs Allen's constructive dismissal claim failed because the tribunal found that she remained in employment while shielding and receiving SSP, which amounted to affirmation of the breach. It also found that she had not, in fact, asked to work from home: what she sought was furlough while shielding. For the same reason, her section 44 health and safety detriment claim failed. The holiday pay, daily rest, and unlawful deduction claims were withdrawn or not made out, and the harassment complaint relating to sex and marital discrimination was withdrawn. Her failure-to-provide-particulars claim was upheld, but no section 38 award followed because no other qualifying complaint succeeded.