Mr A Herring v Winns Coaches Limited — 2021

The tribunal held that the claimant’s claim for unauthorised deductions from wages was in time. ACAS early conciliation began on 16 May 2021 and the claim was presented on 10 July 2021, so deductions from 17 February 2021 onwards were within time. The tribunal accepted that the parties had agreed furlough pay would be what the respondent could claim under the furlough scheme as of March 2020, and found the claimant was not on a zero-hours contract. It found he had a reasonable expectation of at least 250 paid working days plus 30 days holiday, and that his day rate was £105.

Applying the furlough guidance, the tribunal found the claimant was a non-fixed rate employee and worked through the payroll calculations from the parties’ evidence. It held that the claimant should have received monthly furlough payments of £1,827 gross on the relevant calculation, and that the respondent had underpaid him by £21 in February 2021. The tribunal found there was no unauthorised deduction in March 2021, but that £4,375 had been deducted without authorisation across April and May 2021 combined when the respondent conceded those months had not been paid in full.

On holiday pay, the tribunal accepted the respondent’s concession that 30 days’ untaken holiday had to be paid on termination, and applied the £105 daily rate to reach £3,150. The total gross award for the wages claim was therefore £7,546. The tribunal ordered that sum to be paid gross, with the claimant responsible for any tax or national insurance due.

The redundancy payment claim was dismissed. The tribunal found that by April and May 2021 the business had reopened, the furlough scheme was no longer being used, and the claimant remained entitled to remuneration under his contract. There was no contractual lay-off clause and no consent to lay off, so the statutory definition of lay-off in s.147 ERA 1996 was not met. The tribunal also noted that the claimant had in fact been paid for February and March 2021 through earlier furlough payments, even though they were not paid when he expected them.

The breach of contract claim for notice pay also failed. The tribunal recorded that the claimant’s notice-pay argument depended on his redundancy-payment case, and that he had not pursued constructive dismissal or constructive unfair dismissal. The tribunal therefore dismissed the remaining claims while upholding the wages claim only to the limited extent described above.