Accruing Holiday Whilst Furloughed – Another Case Decided

An Employment Tribunal has recently dismissed a claim for holiday pay allegedly accrued by a temporary agency worker whilst on furlough, in contrast with another recent case which found in the agency worker’s favour.

In the latest case, Mr D Perkins v The Best Connection Group Limited (case no. 1602061/2020), Mr Perkins brought a claim for unpaid holiday whilst on furlough from May to July 2020.  The recruitment agency (The Best Connection Group Ltd) argued that whilst on furlough and not working on an assignment, Mr Perkins was not a worker for the purposes of the Working Time Regulations, and therefore did not accrue holiday during that period.

The case hinged on the fact that Mr Perkins was engaged on a contract for services, and that the terms of that contract stated that no contract would exist between the worker and the agency between assignments.  In other words, holiday would only be accrued during periods when a contracted existed between the two parties, i.e. whilst working on assignment.  For the avoidance of doubt, the contract also confirmed that Mr Perkins was engaged as a worker, not an employee.

The Judge concluded that there was no contract between the parties when the claimant was not on assignment and there was no separate agreement confirming the claimant would accrue holiday when on furlough.  In addition, the claimant was only a worker within the meaning of the working time regulations when working on an assignment.

It is unhelpful that two recent employment tribunals with similar claims (for holiday pay during furlough) have reached different conclusions, however it is reflective of lack of legal clarity surrounding the intricacies of furlough and there are likely to more cases to come.

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