Miss Ward v Chariet Limited t/a Crown Spa Hotel — 2021

Miss Ward was employed by Chariet Limited t/a Crown Spa Hotel from 23 August 2018 as a customer service advisor. She worked regular shifts across the health clinic and spa clinic receptions, usually in the region of 40 hours a week, and sometimes worked overtime in the administrative department. She was placed on furlough from 23 March 2020, and the dispute was whether furlough pay and holiday pay had been calculated by reference to her contracted 24-hour week or by reference to her actual reference salary under the CJRS.

On furlough pay, the tribunal held that the 25 March 2020 furlough letter, together with the signed agreement, amounted to a contractual variation that linked her pay to the CJRS and entitled her to 80% of her reference salary. It found that she was not a fixed-rate employee, and that her regular overtime fell within the scheme's definition of non-discretionary payment, so overtime had to be included when calculating reference salary. Applying the greater of the 2019-20 average and the corresponding calendar period in the previous year, the tribunal calculated proper furlough pay at £4,139.92 and actual pay received, excluding holiday pay, at £2,900.36, leaving an unlawful deduction of £1,239.56 gross.

On holiday pay, the tribunal held that the claimant's entitlement to Working Time Regulation leave was reg 13 leave and that normal remuneration had to include her regular overtime, applying Dudley MBC v Willetts and East of England Ambulance Service NHS Trust v Neil Flowers and others. It found that the claimant had variable hours, so a 52-week reference period applied. The tribunal also found that the respondent's attempt to require holiday during furlough did not satisfy reg 15(2) because the notice did not specify the days of leave and was sent to the claimant's old address, although the tribunal still assessed the holiday pay actually due for the relevant periods.

Using the 52-week method, the tribunal fixed holiday pay properly payable at £712.73 and found that £567.45 had been paid, leaving an unlawful deduction of £145.28 gross. The tribunal therefore upheld both claims and ordered payment of £1,239.56 for furlough pay and £145.28 for holiday pay.