Miss Shonagh Howe v Represented by: Margaret Coleman Lay Representative Leisure and Culture Dundee — 2021

Miss Shonagh Howe was employed by Leisure and Culture Dundee from 10 April 2017 as a lifeguard at Olympia Leisure Centre. She later became a casual member of staff, worked variable shifts, and between 6 April 2019 and 5 April 2020 was paid an average of £792 per month. The issue before the tribunal was whether she was entitled to arrears of pay from March 2020 under an unlawful deduction from wages complaint.

The tribunal found that on 22 April 2020 the respondent wrote to the claimant proposing furlough under the Coronavirus Job Retention Scheme from 24 March 2020, explaining that her agreement to work on a casual basis would continue but that she would not be required to work and would be paid 100% of her average earnings for January to March 2020. The claimant signed and returned the letter on 23 April 2020, and the tribunal found that this amounted to an agreed variation of her contract backdated to 24 March 2020. It also found that, if she had declined the furlough arrangement, she would have received no pay at all during periods when she was not assigned work.

The claimant argued that the furlough calculation should not have been based on the respondent's three-month average and that the agreement was not valid. The tribunal rejected that case, finding no basis to imply a contractual term requiring a different method of calculation and holding that the express terms agreed in the furlough letter governed the pay due. It noted that the Coronavirus Job Retention Scheme was a matter between the employer and HMRC and did not itself create a right for the claimant to enforce a different calculation under section 23 of the ERA 1996.

The tribunal concluded that the respondent had made all payments properly payable to the claimant from 24 March 2020 onwards. It therefore held that no pay arrears were due and dismissed the complaint of unlawful deduction from wages in the sum of £7,540.93.