Miss K Kirkham v B&M Retail Ltd — 2021

The claimant brought an unlawful deduction from wages claim about furlough pay. She argued that furlough pay should have been backdated to 1 March 2020 and that, during the furlough period from 21 May 2020 to 1 August 2020, the respondent had calculated her furlough pay incorrectly. The respondent disputed the claim and argued that the Tribunal lacked jurisdiction because the claim was out of time.

The Tribunal found that the last alleged deduction was in the pay packet dated 15 August 2020, so the primary three-month time limit expired on 14 November 2020. Early Conciliation did not begin until 16 December 2020 and the claim was lodged on 19 January 2021. The Tribunal found that the claimant had been aware of a potential dispute about her pay, had access to advice from her USDAW representative for substantial periods, had contacted ACAS, and was able to research and correspond about her rights. It concluded that it was reasonably practicable for the claim to have been brought in time, and dismissed it on that basis.

The Tribunal said that, had the claim been in time, it would also have dismissed it on the merits. It found that the furlough scheme did not require the respondent to backdate furlough pay to March 2020, and that the claimant's entitlement was governed by the furlough letter, which provided for furlough pay from 21 May 2020. It also found that the respondent correctly calculated furlough pay by reference to 80% of the claimant's actual earnings in the equivalent 2019 pay periods, rather than by multiplying the 2019 hours by the 2020 National Minimum Wage rate.