Daniel McFarlane v City of Bradford Metropolitan District Council — 2021

The tribunal found that the claimant was engaged on an ad hoc basis as an outdoor activity instructor, paid per booked session at £138, with no obligation on the respondent to offer a minimum amount of work and no obligation on the claimant to accept a minimum amount. After the respondent’s activity centres closed in March 2020 because of the pandemic, the respondent paid for sessions that had already been booked before closure but made no further payments based on average prior earnings.

The claimant argued that he should have been paid going forward by reference to his average monthly earnings under the Coronavirus Job Retention Scheme and related Cabinet Office guidance. The tribunal held that the June 2020 furlough agreement, read objectively and in light of the covering email and existing arrangements, only entitled him to payment for pre-booked sessions cancelled because of the shutdown, ultimately at 100% of the session rate. It did not alter the arrangement so as to create an entitlement to average monthly pay.

The tribunal also considered the Cabinet Office guidance on contingent workers impacted by Covid-19. It found that the guidance did not give the claimant a free-standing legal right to monthly payments from the respondent and did not require such a term to be implied into the parties’ contract. On that basis, no further wages were properly payable and the unlawful deduction from wages claim was dismissed.