Mr J H Garcia Serna v Lopal Limited — 2021

The claimant began work on 3 February 2020 as an office cleaner, working four hours a day, five days a week at £9 per hour. He was paid cash in hand for February work on 1 March 2020. After the offices he cleaned were closed on 27 March 2020 because of a COVID-19 positive case elsewhere in the building, Miss Palacio told him not to worry and said that he would continue to be paid. The tribunal accepted that he remained available for work, turned down other work, and did not threaten Miss Palacio when he later went to the respondent's restaurant in July.

The tribunal found that on 9 August 2020 Miss Palacio told employees in the group chat that there was no more work for them and that the respondent had not managed to join the government's furlough scheme. It found that the employment ended on 16 August 2020 because, in the absence of a written agreement to the contrary, the claimant was entitled to one week's statutory notice. The tribunal also found that there was no agreement to reduce his agreed £36 a day or to place him on furlough.

The tribunal held that it had no jurisdiction to hear the unfair dismissal and redundancy payment claims because the claimant lacked sufficient continuous service. On the wages and holiday pay claims under section 23 Employment Rights Act 1996, it accepted that he had worked 116 days from March to 16 August 2020 and should have been paid £4,176 gross, plus £504 gross for 14 days' accrued but untaken annual leave. Because he had not been on the respondent's payroll, the tribunal ordered the total of £4,680 to be paid without deduction so that he could account to HMRC. It noted that it would have considered an employer penalty under section 12A Employment Tribunals Act 1996 if the respondent had attended, but it did not have evidence of the respondent's means.