The claimant registered with the respondent, an employment agency, in June 2019.  The claimant worked on various assignments from June 2019 until the Coronavirus Lockdown was announced in March 2020.  There was uncertainty as to whether furlough would be given as the respondent had cash-flow concerns and thus were reluctant to make the payments and wait for Government reimbursement and they were unsure whether agency workers would be entitled.

The claimant was informed in May that due to his long service and importance he had been identified as a worker who was eligible to join the furlough scheme. The claimant’s relationship with the respondent ended in the Summer of 2020 and at this point he sought to seek payment of holiday pay.

The claim brought by the claimant was for the outstanding holiday pay and the accrual of holiday pay during his period of furlough. The claimant relied upon extracts from the Government website on furlough which stated that workers have the right to build up holiday entitlement when they are furloughed. Agency workers would have their usual right to holiday entitlement. However, the respondent also relied on some government advice which stated:

‘…some agency workers on a contract for services may not be entitled to the accrual of holiday or to take holiday under the Working Time Regulations while on furlough because they are not workers or treated as workers under those regulations when between assignments or otherwise not working on assignments’

The Tribunal had to determine whether there was accrual during the furloughed period. The Tribunal first noted that the Coronavirus Job Retention Scheme and the Government Guidance did not create legally enforceable rights. Those rights would come under the Employment Rights Act 1996 or the Working Time Regulations 1998 in relation to unauthorised deductions/holiday pay.

In examining this against the claimant’s situation, the Tribunal noted that the claimant was not entitled to holiday pay when he was not on assignment. He had not been on assignment directly before he had been placed on furlough. As the furlough letter expressly stated that the claimant could not work for the respondent whilst on furlough it meant that there was no contractual right to accrue paid holiday entitlement. As a result, the claimant’s case was dismissed.

Practical Lessons

It seems contrary to the spirit of the furlough scheme to not allow the accrual of holiday pay. The position taken here was a heavily legalistic one examining the Employment Rights Act and Working Time Regulations and that led to the decision that as the claimant was not on assignment, he had no contractual right to accrue holiday pay.

There are difficulties with this decision both theoretical and practical. The primary difficulty is that the claimant was still being paid on the basis that the Scheme kept the individual employed yet they were unable to take on the assignments due to a Global Pandemic. It is submitted that that aspect needed to be given greater credence and that the decision reached here is unfair to the claimant.
https://assets.publishing.service.gov.uk/media/60e3065d8fa8f50abb32628b/Mr_D_Perkins_v_The_Best_Connection_Group_Limited_1602061.2020___-_reserved_judgment_.pdf