Mr Restivo and Mr C Fernando v UKRO Ltd — 2021

The tribunal found that Mr Fernando and Mr Restivo were chefs at Buddha Bar and had been furloughed by letter on 7 April 2020, but continued to work for much of the period from May to November 2020. It accepted their evidence that they were working regular shifts when the restaurant was open, and also doing cleaning and painting when it was closed again in the autumn. Contemporary rota messages and screenshots supported Mr Restivo's account, and the tribunal preferred that evidence to the respondent's assertion that the claimants were being paid the correct amount for the hours worked.

On that basis, the tribunal held that the respondent had made unlawful deductions from wages under section 13 ERA 1996 by paying only 80% furlough pay while the claimants were working. It accepted the claimants' pay figures and calculated the shortfall at £1,142 net per month for Mr Fernando and £498 net per month for Mr Restivo, each for seven months, giving awards of £7,994 net and £3,486 net respectively. The tribunal also noted that holiday pay had not been pleaded in the ET1s and said it had no jurisdiction to make a finding on holiday pay.

The tribunal further found that the claimants resigned on 25 November 2020, were expected to work until 24 December 2020, and were not dismissed by the respondent when they received the 18 December letter alleging theft and repudiatory breach. Applying Chapman v Letheby and Christopher Ltd and Graham Group plc v Garratt, it held that the letter would not have been understood by an ordinary reasonable employee as a dismissal and that the claimants understood it as the start of civil claims. Because they were ready and willing to work during the notice period, the failure to pay them for that period was a breach of contract, and the tribunal awarded one month's net pay each: £3,136 for Mr Fernando and £2,098 for Mr Restivo. The claimants' application for costs was refused.