Mrs N Keel v Represented by: Ms J Mullen - Sister Coffee Club — 2021

Mrs N Keel was employed as an Assistant Floor Manager. Before furlough she had booked annual leave in April, May and June 2020, and on 13 March she texted Mrs Potter to cancel leave between 27 April and 1 May. The tribunal preferred the claimant's evidence that the text exchange was accepted and that there was no further discussion about annual leave. She was then placed on furlough from 20 March 2020 until 15 June 2020, paid 80% of normal pay, and the furlough email made no mention of annual leave during furlough.

The tribunal held that, in the particular circumstances of this case, the claimant did not take annual leave while on furlough and was entitled to be paid in lieu of accrued but untaken leave on termination. The key points were that the respondent had not discussed with staff what impact furlough would have on pre-booked annual leave, the furlough communication was silent on annual leave, and no top-up payment was made at the time the respondent said the claimant had been on leave. The tribunal noted there was little disagreement on the facts, and the dispute turned mainly on the meaning of the text exchange.

The tribunal found that the claimant had accrued 7.94 days' leave by termination. It calculated the gross entitlement at £572.20, based on 66.62 hours at £8.60 per hour, then gave credit for £61.06 already paid after termination. The final order was that the respondent pay £510.94 in lieu of leave entitlement accrued but untaken on termination. The tribunal added that, if it were wrong, the claimant would have been entitled to holiday pay for the week beginning 28 April, subject to deduction of the post-termination top-up payment.