Mr S Bhashkaran v Ashath Ases — 2022

The Claimant worked for the Respondent's fast food franchise and was placed on furlough after contracting Covid-19 in March 2020. The tribunal found that the parties understood he would be furloughed on reduced pay under the Coronavirus Job Retention Scheme, but that the scheme did not make payment to the employee conditional on the employer first receiving HMRC funds. The Claimant's agreed monthly salary was £853.84, and the tribunal held that he was entitled to 80% of that rate while furloughed.

The tribunal preferred the Claimant's evidence that he resigned on 18 June 2020 after chasing unpaid furlough pay and after obtaining his P60 and payslips, and it rejected the Respondent's case that he resigned earlier on 23 May 2020. It also rejected the Respondent's evidence that £1,661.65 had been handed over in cash in late June 2020. On the evidence it found that no relevant furlough payment had been made to the Claimant.

On that basis, the tribunal calculated the furlough entitlement from 23 March 2020 to 18 June 2020, a period of 87 days. It converted the monthly salary to a daily rate of £27.99, applied 80% to reach £22.40 per day, and awarded £1,948.43 gross as an unlawful deduction of wages.

The Claimant's application to amend to add unfair dismissal and wrongful dismissal was refused. The tribunal accepted that the Claimant's lack of knowledge and the Covid-19 context meant it was not reasonably practicable to bring those claims within the primary time limit, but held that the amendment was not made within a reasonable further period once solicitors were instructed. Applying the Selkent balancing exercise, it found the delay substantial and unexplained and concluded that the prejudice to the Respondent outweighed the Claimant's loss of potentially meritorious claims.