The claimant worked in a café from 2003 which changed hands in 2009 and the owners subsequently moved it into a limited company in 2018.  This limited company is the respondent to the proceedings.    On Tuesday 24th March 2020 the café was required to close as a result of the restrictions brought in to combat the coronavirus outbreak in the UK.   The claimant’s understanding was that she had been furloughed but she never received anything from the respondent and despite many attempts she gave up and subsequently started alternative employment in August 2020.

The respondent disputed the claim citing that whilst they made an application under the Coronavirus Job Protection Scheme, they were not granted an award for ‘technical reasons’.  These technical reasons were never expanded upon.  The claimant worked 21.5 hours per week, and she received her pay in cash.  She was never supplied with any statement of particulars or a payslip.  Indeed, her details were only ever submitted to HMRC in February 2020 on a retrospective basis in an attempt to claim under the Coronavirus Job Retention Scheme.  This became clear to the claimant when she received a tax code for the very first time in April 2020 and when she rang HMRC to find out why it was because they had only been notified that she had been in paid work.  This, the Tribunal found, may have been the technical issue preventing the claim from being made.    When the café was required to close, she was told that she would be furloughed but this was never put in writing.

As a result, the Tribunal found that there had been an unlawful deduction in wages as there had been nothing in writing from the claimant stating that her pay was to be reduced to 80% nor was there anything to suggest that her pay would be reduced to zero, as it in fact was.   The Tribunal thus calculated the deduction related to 100% of the claimant’s wages rather than merely 80%.  This meant she was able to recover the sum from 24th March until she resigned in late August.  She was also awarded 4 weeks’ pay for the failure to provide written particulars.

Practical Lessons

There will undoubtedly be more cases that come before the Tribunal relating to employment law changes associated with coronavirus.  The interesting point here is that the unlawful deduction from wages when there was never any written agreement regarding furlough and no pay ever given was on a 100% basis rather than an 80% basis.  The support schemes put into place by the Government are also likely to unearth some ‘interesting’ working arrangements which have flown below HMRCs radar and the effect of that may mean that employers are not due any support money for those employees thus leading to Tribunal action.
https://assets.publishing.service.gov.uk/media/5fdb774be90e07452a1c44c9/Mr_M_Ferguson_v_Tuck_Inn_Cafe_Ltd_-_1803798.2020_-_Final.pdf