Ms L McGarvey (in person) For the v Ms S Davis (operations director) — 2022

The claimant, Ms McGarvey, worked for Grafters Group Limited in two periods, first from 2016 to October 2018 and again from 12 December 2019. She brought a Working Time Regulations claim about accrued but unpaid holiday, including a contention that holiday should have accrued while she was furloughed from 1 April 2020. At the start of the hearing she accepted that the 2017 leave-year complaint was out of time, and she did not pursue injury to feelings or a separate universal credit point.

The tribunal held that she was not an employee, but that she was a worker for the purposes of the Working Time Regulations when she was actually on assignment. It found that there was no obligation on her to accept assignments, no mutual obligation to provide or do work between assignments, and no agreement or understanding that gaps between assignments were to be treated as working time. On the facts found, holiday accrued only when she was working on an assignment for a client.

On furlough, the tribunal found that the claimant was not assigned to a client, could not undertake hospitality work, and that furlough was not treated by the parties as an assignment. The tribunal accepted the respondent's explanation that the 30 April 2020 email referring to holiday accruing as per the contract was a clarification, not an agreement that furlough would count as an assignment. It therefore held that the claimant was not a worker of the respondent during furlough for the purpose of holiday accrual, and the Working Time Regulations claim was dismissed.

Separately, the claimant's application to strike out the response was refused because the prejudice from late service of the respondent's bundle and witness statements could be managed by giving her time to read them. However, the tribunal later found that the respondent had acted unreasonably by not immediately sending its bundle and witness statements when told on 17 June 2022 that the claimant had not received them. It made a preparation time order for 3.5 hours at £41 per hour, totalling £143.50.