Mr A Uddin v The Spinning Wheel Restaurant Limited — 2022

Mr A Uddin worked for The Spinning Wheel Restaurant Limited from December 2019 as a porter/cook. The tribunal found that he was employed on a zero-hours contract, that the restaurant closed on 19 March 2020 because of the pandemic, and that he did no work and received no wages until the restaurant reopened in October 2020. The only claim before the tribunal was for unlawful deduction from wages under section 13 ERA 1996, said to relate to the period from 19 March 2020 to 30 September 2020.

The tribunal accepted that there had been communication with staff about furlough, including Zoom meetings and WhatsApp messages, and found that the respondent had told employees it would apply for furlough and pass the money on if it was obtained. It found that the respondent had not promised to top wages up to 100%, and that the arrangement was conditional on the respondent receiving furlough money from HMRC. The tribunal also found that the respondent did apply for furlough, but the application was refused because HMRC records showed no employees on the payroll on 19 March 2020, so the respondent did not qualify under the scheme.

Applying the statutory test for unlawful deductions, the tribunal held that there was no deduction from wages because no wages were properly payable during the closure period on the facts found. It also held that the claimant was not entitled to payment under the furlough arrangement because the condition for payment, receipt of furlough funds by the respondent, was not met. The claim was therefore dismissed. The judgment referred in its legal background to the Coronavirus Act 2020 and the CJRS eligibility requirement that an employer have a PAYE scheme registered on HMRC's RTI system on 19 March 2020.