Tiler loses unfair dismissal claim over co-funded pay

Monday 22 February 2021

A tiler, who claimed he was unfairly dismissed during last year’s lockdown, has lost his case.

Carlos Fernandes took his employer, Adelino Fernandes Ltd, to an Employment Tribunal because he said he was forced to resign after his boss failed to pay his wages, which were being paid out of the Government’s Co-Funded Payroll Scheme.

However, he incorrectly believed that his employer should have applied to access the scheme – and started paying him from it – last April. He said he had heard from a number of his friends that the companies they worked for had already applied that month.

The scheme did not open until May and Mr [Adelino] Fernandes transferred Mr Fernandes’ £1,600 wage to him on the same day that he received it from the Government, on 18 May.

Knowing that he had been paid after checking his bank balance, Mr Fernandes resigned a day later because, he told the Tribunal, “of the way Mr [Adelino] Fernandes had treated him."

It its judgment, the Tribunal said: “Mr [Carlos] Fenandes’s evidence was that he became more and more unhappy with the situation and felt he should have been paid at the end of April. He accepted that he had not sought to contact Mr Fernandes after 15/16 April [when people told him they were already receiving Government funding] until he called him on 19 May to resign.”

It concluded: “The Tribunal finds on the evidence that there was no breach of contract, repudiatory or otherwise, on the part of [Adelino] Fernandes Ltd.  

“There was an agreed variation to the contract that [Carlos] Fernandes would be paid £1,600 per month during the lockdown period once [Adelino] Fernandes Ltd had received payment from the Government.  

“It received monies on 18 May 2020 from the Government and paid the £1600 to Mr [Carlos] Fernandes on that day.  Having received the monies, the Mr [Carlos] Fernandes resigned without notice the following day.  By reason of the above, he was not constructively dismissed.”

However, the Tribunal did award Mr [Carlos] Fernandes £717 – equivalent to one week’s pay – because his employer had failed to provide him with a written contract. 

“[The employer’s] failure in this regard represents a breach of a basic employment right,” it said. “To award no compensation would undermine the purpose of the law in this regard.”

Mr [Carlos] Fernandes was also awarded two days’ pay for work which he had carried out before he resigned. This was not contested by his former employer.