The claimant commenced work for the respondent on 3rd February 2020, prior to the opening of the business on the 12th February 2020.  At interview the claimant outlined that she would require 16 hours per week to leave the job she had previously been in.   In terms of her employment with the respondent, the claimant worked variable hours ranging from 11 hours one week to 29 hours another week.  The Tribunal found that this led to a flexible contract without guaranteeing any minimum hours.

The issue arising leading to this case was due to the lockdown announcement on 23rd March 2020 in the UK and the NI Regulations brought in on 28th March 2020, which led to the respondent business having to temporarily close. In April 2020, the respondent gave the claimant a total of 18 hours for work, relating to the respondent’s website which allowed her to work from home.  She was advised that there would be no further work until the shop could reopen. The respondent applied to the furlough scheme for the claimant, but it was rejected. The reason it was rejected was that there had been no employees on the payroll on 19th March 2020 as the relevant records were only submitted on 24th March 2020. The claimant was told on 15th June 2020 that the appeal for furlough had been rejected and she would not be receiving the support.

The claimant brought a claim for unlawful deduction from wages relating to the inability to receive furlough pay during the first lockdown. The Tribunal noted that it was ‘unfortunate’ that eligibility for furlough was taken as a snapshot from 19th March 2020 which clearly did not give any allowance for the respondent being a new business. When there was no furlough support the Tribunal found that there was no underlying contractual obligation to provide a guaranteed wage.  Therefore, there was no breach of contract and no unlawful deduction from wages.   Therefore, the claim was dismissed.

Practical Lessons

This demonstrates one of the first forays of the NI Tribunal into the cases thrown up as a result of the Coronavirus Pandemic.  Cases already decided in other jurisdictions have shown different approaches.  In England and Wales, it was found in Ferguson v Tuck Inn Café that despite not being able to make a furlough application there was an unauthorised deduction from wages despite no contract being in place.  However, in Jersey there was a strict contractual position taken in Hague-Holmes v PG Plumbing regarding a contractual lay-off clause. The NI position does seem to take the latter approach.  Perhaps this is just a matter of bad timing for the claimant, and this has led to the lack of support or it could be more demonstrable of a strictly contractual approach being taken when it comes to claims based upon furlough.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/