Ms. S. Mullaney v Bis Recruitment Ltd London Central by remote technology (CVP) — 2020

This was a claim by Ms S. Mullaney against Bis Recruitment Ltd for unpaid wages arising from the Coronavirus Job Retention Scheme. The tribunal heard evidence from the claimant and the respondent's director, found there was no dispute on the material facts, and considered the written agency agreement, the furlough letter, and the payment records. The respondent had furloughed the claimant from 1 March 2020, then ended the arrangement on 18 June 2020 after advice that she might not be eligible and that HMRC might view a claim as abusive or fraudulent.

The tribunal held that the respondent was not obliged to furlough the claimant, but once it did so the arrangement amended the parties' contract and carried an implied obligation to pay her on the basis set out in the CJRS. It found that the claimant was eligible: she was on the PAYE record for the previous tax year, the scheme allowed agency workers, and she was entitled to work elsewhere while furloughed because the scheme only prohibited work for the furloughing employer. The judge also found it was not unreasonable that the claimant would have been looking for work and been placed on assignment during the relevant period but for the pandemic restrictions.

The tribunal rejected the respondent's reliance on the unpaid leave provisions. It found there had been no agreement for unpaid leave, and if the claimant were treated as being on unpaid leave when not working, that period would have ended when she contacted the respondent seeking work in March 2020. On the payment calculation, the tribunal held that the claimant should have been paid 80% of her corresponding weeks' pay rather than the annual average, because the corresponding-weeks basis was higher.

Using the payments made in the tax year 2019/20, the tribunal calculated that 80% of the claimant's pay for the relevant corresponding weeks was £2,399.60 for the period 1 March to 18 June 2020. After deducting the £1,131.03 actually paid, the balance of £1,268.57 was found to have been unlawfully deducted from wages, and the respondent was ordered to pay that sum.