Miss E Ivanova v New York Laser Clinic Limited — 2020

Miss Ivanova accepted a receptionist role with New York Laser Clinic Ltd in March 2020 and was due to start on 1 April 2020, but the clinic closed because of the coronavirus lockdown and she never started work. The offer letter stated that the standard hours were 45 per week, but that pay would be based on actual hours worked. The tribunal accepted that she had been given the impression at interview that she would work full time hours, but it found that the written offer was clear and that, in practice, staff were only paid for hours worked.

The tribunal rejected the respondent's case that the contract had been frustrated. Applying Davis Contractors v Fareham UDC 1956 AC 696, HL, it held that the pandemic did not make performance impossible or radically different in the relevant sense because there was no expectation on 16 May 2020 that the clinics would never reopen, and in fact the clinic reopened a few months later. The tribunal therefore found that Mr Talfourd-Cook terminated the claimant's employment on 16 May 2020 without notice, which was a breach of contract. It found that the claimant was entitled to one week's notice under section 86(1)(a) ERA 1996.

The breach of contract claim succeeded, but the tribunal found that no compensation was payable. It held that the claimant would not have earned any pay during the notice period because the clinics were closed, and she was not entitled to furlough because she was not on the payroll on the government eligibility date. The tribunal also found that sections 88 and 89 ERA 1996 did not assist her because, on its findings, her normal working hours for the statutory calculation were zero.

The unlawful deduction from wages claim was dismissed. The tribunal held that the amount properly payable to the claimant in wages was £0 because she worked no hours for the respondent. It did not determine the respondent's alternative gross misconduct argument based on the claimant's social media posts, because the parties agreed the termination date was 16 May 2020 and no notice pay was payable in any event.