Mr W Griffiths v Coventry School Foundation — 2022

Mr Griffiths worked for Coventry School Foundation for about five years on a zero-hours contract and was entitled to the National Minimum Wage for hours worked. The respondent furloughed him during the first lockdown in 2020, but not during the second lockdown. The tribunal found that the respondent had not clearly told him in November 2020 that he was not furloughed, and he believed he would be furloughed until he received an email from HR on 23 April 2021 saying he was not eligible.

The tribunal found that, during the second lockdown, the respondent only furloughed zero-hours staff if they had worked during the two weeks before the lockdown and were scheduled to work in November 2020. Mr Griffiths accepted that he had not worked in the two weeks before the second lockdown. The tribunal accepted his evidence that he would have worked in November 2020 by attending scheduled training if lockdown had not been in place, but it found that the respondent had in fact imposed the conditions it described and was entitled to do so.

Applying section 13 of the Employment Rights Act 1996 and the Court of Appeal decision in New Century Cleaning Co Ltd v Church, the tribunal held that there was no legal basis for saying wages were properly payable for the period 5 November 2020 to 12 April 2021. The tribunal also noted that the claimant did not rely on any protected characteristic and that his complaint of unfairness was not a legal discrimination claim. The claim for unlawful deductions from wages was dismissed.

The tribunal said that, if the substantive claim had succeeded, it would have made an award for failure to provide written particulars under section 1 ERA 1996, but it had no jurisdiction to make a section 38 Employment Act 2002 award because the substantive claim failed.