Mrs L Ede v PLM Optometrists — 2022

The claimant initially registered claims of unfair dismissal and unlawful deduction from wages, but she clarified that she was not pursuing unfair dismissal because she had obtained alternative employment and had suffered no financial loss from her resignation. The tribunal therefore dealt only with whether the respondent had made unauthorised deductions from wages in relation to pay under flexible furlough.

The claimant’s contract provided for work on Monday, Friday and Saturday, and the evidence showed that her hours were later adjusted by agreement in a WhatsApp exchange on 6 August 2020. A letter dated 5 February 2021 set out flexible furlough arrangements, including that the claimant might be asked to come in and work some or all of her hours, that contracted hours not worked would be paid at 80%, and that the arrangement was temporary. Between 1 March 2021 and 30 June 2021 she worked a number of Tuesdays and Wednesdays, as well as some of her contracted days. Her hourly rate was £8.91, and she claimed £814.40 for 92 hours worked on days she said she was not contracted to work.

The tribunal held that the relevant question was the claimant’s contract of employment, not the way the CJRS flexible furlough scheme operated. It found there had been no agreement to change her contract so that she was paid by reference to total monthly hours irrespective of the days worked. On the tribunal’s analysis, flexible furlough only varied the contract to the extent agreed between the parties: the claimant was entitled to 100% pay for hours worked, 80% pay for contractual hours not worked, and payment for additional hours worked on days when she was not contracted to work.

The tribunal concluded that the hours worked on non-contracted days were properly payable within section 13 of the Employment Rights Act 1996, and that the respondent had therefore made unauthorised deductions. It ordered the respondent to pay the claimant £814.40. The tribunal noted that the respondent had taken advice and that the scheme was complex, but that did not alter the contractual analysis.