Mr Lukasz Kusy v The Clock House Restaurant Ltd — 2023

The tribunal found that the claimant's remuneration had been agreed at a guaranteed gross package of £24,000 per annum, reflected in practice as £2,000 per month, with part of that sum paid through the tronc system. It rejected the respondent's case that the tronc element was genuinely discretionary in the claimant's case, and found that the written tronc documents did not reflect the reality of the parties' agreement.

On furlough, the tribunal found that the claimant had consented by conduct to being placed on furlough leave and that furlough pay should have been calculated on the claimant's actual contractual gross pay of £2,000 per month. The respondent had instead calculated furlough pay on £1,667, so the unauthorised deduction claim succeeded in respect of furlough underpayments from March 2020 to May 2021. The tribunal accepted the claimant's schedule of loss figures for that shortfall and awarded £4,681.62 gross.

The claimant also advanced an NMW-based underpayment case about the pre-furlough period. The tribunal accepted that he had worked some additional hours before 15 December 2019 and that his pay may have fallen below NMW in some months, but it held that that part of the claim was out of time and outside jurisdiction under the wages limitation rules. It therefore did not form part of the award.

The constructive unfair dismissal and wrongful dismissal claims failed. The tribunal held that the respondent had addressed the earlier overtime complaint by agreeing in December 2019 that the claimant would work strictly to his 48-hour contract, and that the later decision in May 2021 to end the tronc and fold service charge into basic pay did not amount to a repudiatory breach or a breach of the implied term of mutual trust and confidence. It found that the claimant remained under contract, had affirmed it by continuing to work and by accepting furlough and later returning from furlough, and therefore had not been dismissed.