Case No 4104172/2020Venue Glasgow by CVPHearing 8 and 9 December 2021
Between
P FlynnClaimantMikeylenn LtdRespondent
Before
Employment Judge M WhitcombeDate 13 December 2021
JUDGMENT
Respondents Rule 21 of the Employment Tribunal Rules of Procedure 2013 No response has been presented to this claim and an Employment Judge has decided to issue the following judgment on the available material under rule 21:[1]The respondent has made an unauthorised deduction from the claimant’s wages and is ordered to pay the claimant the sum of £2,451.[2]The claimant was dismissed by reason of redundancy and is entitled to a redundancy payment of £1 ,530.[3]The respondent has failed to pay the claimant’s holiday entitlement and is ordered to pay the claimant the sum of £327. Employment Judge: M Whitcombe Date of Judgment: 22 October 2020 Entered in register: 20 November 2020 and copied to parties E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104172/2020 Held in Glasgow by CVP on 8 and 9 December 2021 Employment Judge: Rory McPherson Patricia Flynn Mikeylenn Ltd[1]the respondent made unauthorised deduction of wages from the claimant’s 25 wages in the sum of Six Hundred and Thirty Two Pounds and Sixty Four Pence (£632.17), being 11 weeks’ pay at contractual rate of £57.47; and[2]the claimant was dismissed in breach of contract in respect of notice and the respondent is ordered to pay damages in the sum of One Hundred and Seventy Two Pounds and Forty One Pence (£172.41), being 3 weeks’ 30 notice contractual notice pay £57.47; and[3]the claimant was dismissed by reason of redundancy and is entitled to a redundancy payment of One Thousand One Hundred and Seventy Six Pounds and Eighty Eight Pence Pounds (£1,176.88) calculated on average of paid wages 52 weeks prior to termination (£261.53 x 4.5 having Respondent Represented by G Kelly and M Lennon Directors Claimant In Person regard to the claimant’s age), the claimant having a period of 3 continuous years of service.[4]The respondent has failed to pay the claimant’s accrued (6 March to 25 May) holiday entitlement and is ordered to pay the claimant the sum of Seventy One Pounds and Forty Three Pence (£71.43).[5]As the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 do not apply, these sums are payable immediately by the respondent.
REASONS
Oral reasons were given at the hearing. Employment Judge: R McPherson Date of Judgment: 13 December 2021 Entered in register: 14 December 2021 and copied to parties E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104172/2020 (A) Held in Glasgow by CVP on 8 and 9 December 2021 Employment Judge: Rory McPherson Patricia Flynn Mikeylenn Ltd JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Employment Tribunal is that;
Preliminary Matters
[1]the respondent made unauthorised deduction of wages from the claimant’s wages in the sum of Six Hundred and Thirty Two Pounds and Sixty Four Pence (£632.17), being 11 weeks’ pay at the contractual rate of £57.47; and[2]the claimant was dismissed in breach of contract in respect of notice, and the respondent is ordered to pay damages in the sum of One Hundred and Seventy Two Pounds and Forty One Pence (£172.41), being 3 weeks’ notice contractual notice pay £57.47; and[3]the claimant was dismissed by reason of redundancy and is entitled to a 35 redundancy payment of One Thousand One Hundred and Seventy Six Respondent Represented by G Kelly and M Lennon Directors Claimant In Person 4104172/2020 (A) Page 2 Pounds and Eighty Eight Pence Pounds (£1,176.88) calculated on average of paid wages 52 weeks prior to termination (£261.53 x 4.5 having regard to the claimant’s age), the claimant having a period of 3 continuous years of service.[4]The respondent has failed to pay the claimant’s accrued (16 March to 25 May) 5 holiday entitlement and is ordered to pay the claimant the sum of Sixty Three Pounds and Twenty Two Pence (£63.22).[5]As the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 do not apply, these sums are payable immediately by the respondent.[1]On Monday 1 August 2016, the claimant commenced her continuous period of employment at King Arms public house in Fenwick, carrying out various 10 roles culminating in the role of bar staff from around November 2016.[2]The claimant worked 7 core agreed contractual hours, referred to as “basic hours,” although she commonly worked additional hours. The claimant was paid at the same rate for basic and additional hours.[3]On or around Saturday 29 February 2020, the claimant commenced a 15 period of previously agreed holiday leave to Monday 16 March 2020 (the agreed holiday period), utilising the remainder of her then outstanding accrued annual leave. The claimant was paid by her then employer (as of 29 February 2020) for that agreed holiday period.[4]In the 52 weeks prior to the expiry of the agreed holiday period, the claimant 20 was paid on average £261.53, reflecting both the basic and additional pay received. The claimant’s basic contractual entitlement to pay was £57.47. Holiday pay was calculated on contracted hours and additional hours worked.[5]On or about Monday 2 March 2020, the respondent company, established 25 for this purpose, took over the public house operation. Consequently, the claimant’s continuous period of employment and related liabilities were transferred to the respondent company. 4104172/2020 (A) Page 4[6]On the claimant’s return from the agreed holiday period by Monday 16 March 2020, she was provided with an Isolation Note (the March 2020 Isolation Note) which told her she must stay off work by official advice. The Isolation Note was a new concept introduced in response to the emerging Covid 19 pandemic and operated as equivalent to a GP-provided Fit Note. 5 The March 2020 Isolation Note, which was due to expire Sunday 22 March 2020, was provided to the respondent.[7]On Monday 23 March 2020, the Government announced a national lockdown arising from the onset of the Coronavirus pandemic. Consequently, the respondent’s public house was unable to operate, and the 10 claimant was unable to attend her next scheduled workday.[8]That week the UK Government created the Coronavirus Job Retention Scheme (“CJRS”), a new concept within UK employment law (which has become known as the Furlough Scheme) in consequence of the Covid 19 Pandemic.[9]As they were unable to operate the public house, the respondent company sought unsuccessfully to secure the benefit of the Furlough Scheme to pay the claimant, including appealing a decision rejecting their application to be eligible under the Furlough Scheme. The application had been rejected as the respondent, which had commenced operation of the public house on 20 Monday 2 March 2020, was not registered prior to that date, for an earlier effective cut-off date for HMRC’s Real Time Information process (at which date the Furlough Scheme did not exist).[10]As part of the process including the appeal, and in anticipation that their application would be approved to operate the Furlough Scheme, the 25 respondent company had understood that it was required to maintain a formal record of payments which would have ordinally been made (if operational) although it did not, in fact, made such payments. An unintended effect of that process was to create an HMRC record which erroneously suggested that payments had been made by the respondent company 30 following the claimant’s return from her agreed holiday period. 4104172/2020 (A) Page 5[11]Following upon the claimant’s return from her agreed holiday period, the respondent company did not pay the claimant. The reason for that non-payment was not the TUPE transfer of the claimant. It was the onset of the pandemic.[12]On Monday 25 May 2020, due to the ongoing absence of requirement for 5 the work carried by the claimant, the respondent terminated the claimant’s employment due to the continuing impact lockdown.[13]The respondent had remained unable to secure its eligibility to operate within the Furlough Scheme. The respondent was unable to operate the public house from the period from a few weeks after the TUPE transfer to the date 10 of redundancy. Relevant Law: Contract/TUPE[14]In terms of Reg 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), a new employer, the respondent in this case, inherits all the accrued rights and liabilities 15 connected with the contract of employment of the transferred employee. Thus, contractual terms and conditions with the previous employer automatically become the terms and conditions with that new employer, including continuing to pay basic contractual pay to an employee for the basic contractual hours. TUPE 2006 does not, however, require an employer 20 to make additional payments where additional hours are not worked. Relevant Law: Furlough[15]Since the innovation of Furlough, there have been different versions. However, for present purposes, Version 1 (Furlough) operated from Sunday 1 March to Tuesday 30 June 2020 would have been applicable. An 25 employer’s application for Furlough is required to be approved by, in effect HM Treasury. In the absence of such approval, the scheme did not operate, and the Government would not pay an employer the 80% of salary (subject to a cap of £2,500 per month) in consequence of the employer’s employees being prohibited from working. The Furlough Scheme did not create a 4104172/2020 (A) Page 6 general obligation for an employer whose application was not accepted to make any payments to an employee who could not work. Redundancy16. It was a matter of agreement that the termination of employment was by reason of redundancy. The dismissal, in any event, met the requirements of 5 s139 (1) of the Employment Rights Act 1996, being a dismissal wholly or mainly attributable to the diminished requirement of the business.17. In terms of section 223 (1) (2) of the Employment Rights Act 1996, no account is taken in the calculation for redundancy pay of a period preceding the redundancy date, during which no payments have been made.
Conclusions
[18]The claimant’s continuous period of employment and related liabilities were transferred to the respondent company by reason of TUPE 2006 on Monday 2 March 2020 to the respondent company, established for this purpose.[19]The claimant’s entitlement to redundancy is calculated reflecting the paid 15 period preceding the redundancy date. That calculation does not include, in terms of section 223(1)(2) of the Employment Rights Act 1996, the period from the end of the agreed holiday period to the date of redundancy, during which no payments were made and for which a separate award for breach of contract is made. As such the HMRC records erroneously created for that 20 period in anticipation of the respondent successful appeal against Furlough Scheme rejection are disregarded. No payment was made by the respondent company in that period.[20]The respondent company did not pay the claimant the sums she was contractually entitled to following upon the conclusion of her agreed holiday 25 period, being 11 weeks’ pay at a contractual rate of £57.47. 4104172/2020 (A) Page 7[21]The respondent company dismissed the claimant in breach of contract in respect of her entitlement to 3 weeks contractual notice pay having regard to her cumulative length of service.[22]The respondent dismissed the claimant by reason of redundancy and is entitled to a redundancy payment, calculated on an average of paid wages 5 52 weeks prior to termination (£261.53 x 4.5 having regard to the claimant’s age) having regard to the claimant having a period of 3 continuous years of service. No account is taken of the period beyond the agreed holiday period during which the claimant was not paid.[23]The respondent failed to pay, at dismissal, the claimant’s accrued holiday 10 entitlement following her return after the agreed period of holiday. The calculation of holiday pay entitlement in judgment dated 13 December 2021 issued 14 December 2021 in error referred to the period as from 6 March, that is corrected above to 16 March in terms of Rule 69 of the 2013 Rules and accordingly, on reconsideration in terms of Rule 70 of the 2013 Rules, 15 the calculation of accrued unpaid holiday pay is varied to £63.22 accordingly.[24]The claimant is entitled to the sums set out above