In person For the v Respondent — 2022

Mr B Shoaei was employed by Amberstone Security Limited as a security officer from 28 November 2019. His written contract initially provided for flexible hours within a normal range of 30 to 55 hours per week, with pay varying by assignment and holiday pay calculated on average basic pay. In February 2020 he received an SMS offering him a permanent placement at the Levi store in Covent Garden from 10 February onwards, Monday to Saturday 11:00 to 20:00, and he accepted. The tribunal found that this correspondence varied the contract so that, from 10 February 2020 until furlough began on 21 March 2020, he worked a fixed 54-hour week at a fixed location for £8.21 per hour.

On that basis, the tribunal held that he should have been treated as a fixed rate employee for Coronavirus Job Retention Scheme purposes. It found that the revised arrangement satisfied the Treasury Direction definition of a fixed rate employee and that the HMRC guidance also pointed to that conclusion. The tribunal therefore held that furlough pay, holiday pay during the furlough period, and notice pay all needed to be recalculated on the fixed-rate basis, with the National Minimum Wage not applying to furlough pay itself but relevant to holiday pay and notice pay during furlough. The tribunal also said that sick leave days in February and March 2020 before furlough should not be counted when calculating usual hours.

Separately, the tribunal accepted the claimant's evidence that he had requested annual leave in March 2020 during the holiday year running from 1 April 2019 to 31 March 2020, and found it credible that the request may have been missed during the early pandemic period. It held that he was denied the right to take that leave and was therefore entitled to compensation equivalent to the annual leave applicable to the period from 28 November 2019 to 31 March 2020. The tribunal noted that, if necessary, it could alternatively have considered a failure to pay in lieu of untaken holiday on termination under Regulation 14 of the Working Time Regulations 1998, but that was not the primary basis of the finding.

The judgment did not quantify the final sum owed. The tribunal said the parties should try to agree the total, including any tax and National Insurance consequences, and that any unresolved remedy issues would be dealt with at a further hearing.