H Seco v A Tovar and 1 other — 2021

The claimant worked from 5 November 2018 as a live-out nanny. In March 2020 she isolated after her sister showed coronavirus symptoms and later after she developed symptoms herself. The tribunal accepted that she reasonably believed the pandemic and the circumstances of her work in the respondents' home created serious and imminent danger, and that going to Scotland with her mother so she and her sister could isolate and obtain supplies were appropriate steps to protect herself, the respondents' family, and others.

The tribunal rejected the respondents' case that the contract had ended by mutual agreement. It found that Mr Tovar terminated the contract when he emailed on 17 June 2020 saying the claimant's contract had been terminated long ago because she had not come back to work. Applying Oudahar v Esporta Group Ltd, the tribunal held that the reason for dismissal was the claimant's taking, or proposing to take, those protective steps, and that the respondents' failure to investigate or ask when she would return did not avoid liability. The dismissal was therefore automatically unfair under s.100(1)(e) ERA 1996.

On pay, the tribunal held that the claimant had agreed in writing not to be paid while she was isolating and later agreed to the stopping of weekly payments, so there was no unlawful deduction from wages. It also held that the CJRS did not create a separate right to payment from the respondents in the absence of the furlough agreement required by the scheme. The tribunal upheld the contractual notice pay claim, finding that the respondents were in breach of contract because no two weeks' notice was given.

The tribunal also declared under ss.8 and 12(3) ERA 1996 that the respondents had failed to provide itemised pay statements. Remedy for unfair dismissal was left to a later hearing if the parties could not agree. For future compensation purposes, the tribunal indicated a 25% Polkey reduction, nil pay for four weeks in November 2020, and no compensable loss after 20 December 2020, and it rejected contributory fault.