Mrs Cecilia D’Arcy v The English Heritage Trust — 2022

Mrs Cecilia D'Arcy brought a claim for unauthorised deduction from wages arising from furlough pay said to be due for her Historic Property Steward role between January and April 2021. She had worked for the English Heritage Trust since 1 May 2018 in two separate zero-hours roles, HPS and Stone Circle Experience Host. The tribunal found that the claim related only to the HPS contract. It also recorded that the claimant had previously been furloughed in both roles during the first lockdown, and that in April 2021 the respondent upheld a grievance in part by accepting that furlough pay for the SCE role had been calculated incorrectly and paying back pay for that role.

The central issue was whether the letter of 8 January 2021 placed the claimant on furlough in her HPS role. The tribunal found that the respondent's intention was not to furlough her in HPS because she had no scheduled HPS shifts for January 2021, whereas she was furloughed in the SCE role because she did have some scheduled shifts. The letter itself was generic and did not specify which role it applied to, but when read against the earlier furlough communications and the December 2020 and January 2021 emails, the tribunal held that it was not reasonable to interpret it as creating a furlough arrangement for the HPS role.

The tribunal also held that there was no entitlement under the Coronavirus Job Retention Scheme to be placed on furlough, and that the scheme did not itself regulate the employment contract. Applying section 13 of the Employment Rights Act 1996 and ordinary principles of contractual interpretation, including Investors Compensation Scheme v West Bromwich Building Society, it concluded that the claimant was not contractually entitled to furlough in the HPS role and was not in fact furloughed in that role. The claim for unauthorised deduction from wages therefore failed and was dismissed. The tribunal noted that the respondent later corrected its furlough calculations for zero-hours workers and that the claimant had received back pay in respect of the SCE role, but that did not alter the outcome on the HPS claim.