REWARD
Furlough notice pay, isolation dismissal, discrimination
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Bayliff v Fileturn Ltd The employment tribunal (ET) has evaluated the calculation of notice pay whilst furloughed before the law was changed in July 2020. The job retention scheme was introduced in March 2020 to assist businesses suffering a downturn as a result of the coronavirus pandemic and associated lockdown restrictions. The scheme involved placing employees on ‘furlough’, meaning they remained on their employer’s payroll but did not carry out work for their employer, with the government covering 80% of their wages. Guidance on the use of the furlough scheme was fast-changing, with new information regularly being released. One such issue was that of calculating pay for employees on furlough who were also serving notice. Initial guidance had been unclear on whether they should receive
80% of their wages or if this should be 100%, which would have necessitated their pay being topped up by the employer. On 30 July 2020, the UK government announced that it would be changing the law to clarify this, outlining that the calculations for statutory notice pay should be based on pre-furlough pay and not the reduced 80%. This came into force on 31 July 2020. As with much of the changing guidance at the time, this particular change only led, unfortunately, to further confusion. Specifically, a question was raised as to whether this new rule would apply to notices being served prior to 31 July 2020. No new guidance was published to clarify this point. In this case, the employee was furloughed under the scheme and received 80% of his wages. Around a month later, he was given notice of his employment
being terminated. The employer provided 80% of his notice pay up until 30 July 2020 and, in line with the changing law, from this date he was provided 100%. The employee later brought a claim to a tribunal for unlawful deduction from wages. He claimed that he should have been paid 100% for the entirety of his notice period. The tribunal dismissed the claim. In their judgment, they stated that as the new law came into force on 31 July 2020, it only applied to notice pay calculations from that specific date. Any calculations that took place prior to this did not need to be retrospectively increased as a result. When applied to the employee’s situation, this meant that he had been correctly paid his full notice entitlement and his claim therefore could not succeed. Rodgers v Leeds Laser Cutting Ltd The ET has held that an employee was not automatically unfairly dismissed following his refusal to come into work during the first coronavirus lockdown.
...question was raised as to whether this new rule would apply to notices being served prior to 31 July 2020.
| Professional in Payroll, Pensions and Reward | July / August 2021 | Issue 72 30
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