Mr D Perkins v The Best Connection Group Limited — 2021

Mr Perkins registered with The Best Connection Group Ltd in June 2019 as an agency worker and worked on a number of assignments until March 2020. His ET1 referred to unpaid holiday pay and also ticked unfair dismissal. The tribunal recorded that the unfair dismissal claim had already stood dismissed after a prior notice from Employment Judge Jenkins because the claimant did not have 2 years' service and did not object. At the hearing the claimant also referred to possible disability discrimination in his schedule of loss, but the tribunal explained that no such claim was properly before it and that any additional complaint would require a written amendment application.

The issue the tribunal decided was whether the claimant accrued holiday pay while furloughed. The written terms of engagement said the arrangement was a contract for services only during assignments, that no contract existed between assignments, that the claimant was a worker not an employee, and that he would not receive payment for time not spent on assignment. The claimant accepted in evidence that before furlough he did not accrue holiday between assignments and that he could decline assignments. He was furloughed from 11 May 2020, having last worked on assignment around 17 March 2020, and the furlough letter said he could not work for the respondent while furloughed and could work for other companies.

Applying the cited authorities on employee and worker status, including Ready Mixed Concrete, Clark, Autoclenz, Uber and Carmichael, together with the Working Time Regulations 1998 and section 13 ERA 1996 principles discussed in the judgment, the tribunal found there was no contractual right to accrue paid holiday during furlough. It held that there was no subsisting contract between assignments, no obligation on the claimant to accept work, no obligation on the respondent to offer work, and no contract under which the claimant was undertaking to personally perform work or services for the respondent while furloughed. The tribunal also said the Government guidance and the way another agency handled furlough did not determine the legal test. The holiday pay claim was therefore dismissed and no monetary award was made.