Claimant v Thirsty Kirsty Ltd — 2022

The claimant was a member of bar staff at the respondent's Oxford Bar in Edinburgh, working variable hours from 18 May 2019 to 18 June 2020. He was placed on furlough from 27 March 2020 to 18 June 2020 and was paid £54.40 gross per week, which the respondent calculated as 80% of one eight-hour shift at his hourly rate of £8.50. The tribunal accepted the evidence of both witnesses and found the factual background was largely not in dispute.

On the furlough pay complaint, the tribunal rejected the claimant's argument that he was entitled to be paid 80% of his average earnings under the Coronavirus Job Retention Scheme. It held that the CJRS was a reimbursement scheme between government and employer, not a free-standing right for an employee to receive a particular amount of furlough pay. Because the claimant had no guaranteed hours and the respondent was free under his contract not to offer work from week to week, the tribunal held that the payments made did not amount to unlawful deductions from wages or a breach of contract.

The separate complaint about pension contributions was not determined on the merits. The tribunal explained at the outset that it had no jurisdiction to make a finding about whether an employer had failed to make occupational pension contributions, and it also recorded that there was no evidence before it on that point. That complaint was therefore dismissed.

The tribunal upheld the holiday pay claim. It found that the claimant was entitled to accrue annual leave and, because the respondent had not designated a holiday year, the relevant reference year ran from 18 May each year. Using a 35-hour full-time comparator, it calculated the claimant's annual entitlement at 133 hours and found that he accrued 11.1 hours between 18 May and 18 June 2020. The tribunal valued that entitlement at the April 2020 National Minimum Wage rate of £8.72, giving a gross award of £96.79, with no deductions for tax or National Insurance.