Mr R Kincaid v Booth Welsh Automation Limited — 2021

Mr Kincaid brought a claim of unlawful deductions from wages under section 13 of the Employment Rights Act 1996, saying that during his Covid-related absence from 18 January to 26 January 2021 he should have been placed on furlough and paid more than statutory sick pay. The gross sum said to be lost was agreed at £828.94. The tribunal recorded that his written contract, which incorporated the Scottish Joint Industry Board rules, provided only for SSP in cases of absence due to ill health.

The tribunal found that there was no evidence of any written or oral agreement to place Mr Kincaid on furlough leave, and no evidence of any agreement to pay more than SSP during sickness absence. It considered the claimant's reliance on comments made by Mr Mutter at a site meeting on 18 January 2021, but held that those comments were only an observation about a hypothetical situation and did not amount to an express contractual commitment or offer capable of acceptance.

The tribunal also rejected any implied-term case. It found no evidence of a custom or practice of placing employees in the claimant's position on furlough for short-term absence, and no basis for implying a term either on business efficacy or under the officious bystander test. It held that the existence of the Coronavirus Job Retention Scheme did not itself create an obligation on the respondent to use furlough to provide a higher level of pay in these circumstances.

The claim was therefore dismissed. The tribunal noted that the claimant remained employed when he presented the claim, so the case proceeded only under section 13 ERA 1996 and was not a breach of contract claim.