Claimant v Team Support Staff Ltd — 2021

Mr Fernando Alves was engaged by Team Support Staff Limited as an agency worker supplied to London Underground Limited as a driver's mate. The tribunal found that he was a "worker" within section 230(3)(b) ERA 1996, relying on the contract wording, the absence of any substitution right, and the fact that he provided services to the respondent by meeting its client's labour needs.

The first element of the unlawful deduction claim, covering 4 April to 31 May 2020, was dismissed. The tribunal held that there was no express entitlement to furlough pay for that period and refused to imply a term requiring the respondent either to draw the CJRS to the claimant's attention or to make a backdated application. It held that Scally did not assist because this was not an employment relationship and the claimant already knew of the scheme, and that Braganza did not justify implying a discretion subject to a Wednesbury standard into this non-employment contract.

Even if a Braganza-type term had been implied, the tribunal found that the respondent's refusal to backdate the claim was not irrational, capricious or arbitrary. It accepted evidence that the respondent believed, based on advice it had received and the way the scheme was understood at the time, that later backdating was not available, and it noted that the claimant had not advanced the implied-term argument until shortly before the hearing.

The second element, concerning July 2020 furlough pay, succeeded. The tribunal accepted the claimant's calculation that the last three days of July 2019 and associated overtime, totalling £379.01, had not been taken into account when the July 2020 CJRS payment was worked out, producing a shortfall of £303.21 gross. It held that sums payable under the CJRS were "wages" for section 27 ERA 1996 purposes and declared that the unlawful deduction of £303.21 was well-founded, ordering payment of that sum subject to tax and National Insurance deductions.