Ms Maria Dolores Alonso, claimant’s Mother For the v Mr Malcolm Cameron, Consultant — 2022

The claimant was employed as a nursery cleaner from 23 April 2019 until 30 June 2020. The tribunal allowed the amendment to pursue an unlawful deduction from wages claim, applying the Selkent balancing approach, but it held there was no jurisdiction to hear unfair dismissal because the claimant did not have two years' service and defamation was outside the tribunal's jurisdiction.

On the merits, the tribunal found the claimant was paid hourly at £10 per hour and was contracted to work two hours per day Monday to Friday. It accepted that a second site at Sudbury was added from 14 February 2020 at the same two-hour daily rate. For February 2020 the claimant should have been paid for 62 hours but was paid for 36 hours, creating an underpayment of 26 hours. For March 2020 the tribunal found that the additional Sudbury hours were not paid in that month and that there was no clear agreement to pay the claimant in full for the period after 23 March; instead, she was furloughed from 23 March 2020 when she was told not to attend work.

The tribunal held that the furlough calculation was wrong because the claimant was not a fixed rate employee within paragraph 7.6 of the Treasury Direction made on 15 April 2020 under sections 71 and 76 of the Coronavirus Act 2020. It found the correct reference salary should have been based on an average under paragraph 7.2 across the months worked before furlough, not solely on February 2020 pay. On that basis April, May and June 2020 were also underpaid.

For notice pay, the tribunal preferred the claimant's evidence that the additional Sudbury work had not been ended before termination. It found that at the point of dismissal she was still contracted to work at both sites, amounting to 20 hours per week, so her two weeks' notice should have been paid at full pay rather than furlough-based pay. The respondent's later payment of £35.51 was treated as a partial correction, but the tribunal found the overall total still due was £642.83 gross.