Mrs. B Pacholczyk (1) Miss D Gil (2) v LSB Employment Limited — 2022

The tribunal considered written agency contracts dated 13 August 2019 for the First Claimant and 6 June 2019 for the Second Claimant. It found the contracts were validly executed, that the claimants were bound by them, and that the terms stated the agency worker was not an employee and that no contract existed between assignments. Applying the contractual wording and the factual evidence, the tribunal found that neither claimant was an employee of the Respondent. It relied on the absence of mutuality of obligation and any evidence of control during assignments, and accepted that the Respondent's contractual description of the relationship as one of worker status reflected the reality.

The issue was whether annual leave accrued during furlough periods in 2021 and, if so, whether pay in lieu of untaken leave was due on termination. The tribunal accepted that the claimants were furloughed in March 2021 and again from June to September 2021, and that they received furlough pay, but no payment was made for annual leave in relation to those furlough periods. It held that furlough was not "working time" for the purposes of the Working Time Regulations 1998 because the claimants were not working, not at the employer's disposal, and not receiving relevant training. There was also no workforce agreement or other written agreement treating furlough as working time.

On the contract, the tribunal held that clause 7 on annual leave was only engaged during an assignment and that clause 2 meant no contract existed between assignments. Because the furlough periods were between assignments, no contractual annual leave accrued during those periods and no entitlement to payment in lieu arose at termination. The tribunal noted that the claimants had received holiday pay in lieu of accrued leave for time worked on assignment in 2021, but that did not extend to furlough time. Both claims for holiday pay were therefore dismissed as not well-founded.