(sitting alone) Mr T Callaghan v YWR Airdrie Ltd and 1 other — 2021

Mr T Callaghan and Mr E Hamilton were employed by a business trading as Your Waste Recycled and transferred to YWR Airdrie Ltd under TUPE on or about 14 February 2020. The tribunal found that the Respondent hand-delivered a letter on 26 March 2020 asking them to agree to furlough and a reduction in pay, and both Claimants signed the document and remained on furlough until their employment was ended with immediate effect on 21 July 2020 when Mr Stocks told them they were being made redundant.

The tribunal accepted that some furlough payments had been made, but found that the First Claimant had not been paid 11 weeks' wages and the Second Claimant had not been paid 9.4 weeks' wages for the period between 26 March and 21 July 2020. It rejected the Respondent's position that entitlement depended on successful and timeous receipt of Coronavirus Job Retention Scheme funds from HMRC, holding that the March letter did not make wages conditional on grant receipt and that clearer wording would have been needed to shift that risk to the Claimants. The unpaid wage claims were therefore upheld as unauthorised deductions from wages under section 13 ERA 1996.

On termination, the tribunal found that neither Claimant was given the statutory minimum notice or paid in lieu, that neither received a statutory redundancy payment at the time, and that both had 11 days of accrued untaken holiday. It held that the Claimants had not agreed to waive statutory redundancy, notice or holiday rights, and that the redundancy payments fell to be calculated by disregarding the furlough reduction under the Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020 because the relevant date for redundancy purposes was the end of the notional notice period. The First Claimant was awarded £1,485 redundancy pay and £863.27 notice damages; the Second Claimant was awarded £1,980 redundancy pay and £1,193.27 notice damages. Holiday pay was awarded at £726 each, calculated at £66 per day.