EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4105274/2020 (V) & others Held remotely on January 2021 Employment Judge: W A Meiklejohn Miss L Mulholland v Maxwell Bruce Limited — 2021

The claimants were employed by Maxwell Bruce Ltd until redundancy on 31 July 2020. Their contracts provided 25 days' annual leave plus 9 statutory holidays. They were furloughed from 1 April 2020. On 9 June 2020 Mr Donaldson emailed staff saying accrued holiday would be paid up to 30 June on the 27 June pay run, with furlough pay and holiday pay shown separately. The tribunal found that email did not amount to a valid notice under regulation 15 of the Working Time Regulations 1998 because it did not specify the days on which leave was to be taken and did not give the required advance notice.

Because the email was ineffective, the tribunal held that no days between 9 June 2020 and termination on 31 July 2020 were annual leave for any claimant. The reduction in June furlough pay was therefore an unlawful deduction from wages within section 13 of the Employment Rights Act 1996. The tribunal calculated the gross shortfalls as £1,539.95 for the first claimant, £1,233.59 for the second claimant, and £815.27 for the third claimant, and ordered those sums to be paid gross subject to deductions for tax and employee National Insurance.

The tribunal also held that each claimant was entitled to additional holiday pay on termination under regulation 14 of the Working Time Regulations 1998. It accepted that the contractual holiday terms were more favourable than the statutory position under regulation 17. On that basis it calculated accrued holiday pay balances of £744.69 for the first claimant, £157.87 for the second claimant, and £255.76 for the third claimant, taking account of the holiday already paid in June 2020 and, for the first claimant, the January leave carried over from 2019.