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The first COVID-19 related Employment Tribunal Claim

In December 2020 the Jersey Employment and Discrimination Tribunal (Tribunal) gave a judgment in the case between Mr Hague-Holmes (Claimant) and PG Plumbing (2014) Limited (Respondent). This is thought to be the first judgment of a court or tribunal within the United Kingdom and its surrounding British Crown Dependencies, which relates to the wage subsidies introduced to support businesses and employees impacted by COVID-19.

The Respondent was forced to temporarily close as a result of the pandemic and subsequent lockdown in Jersey. Consequently, several employees, including the Claimant were temporarily laid off. The Respondent misunderstood the Jersey Government’s COVID-19 Co-Funded Payroll Scheme (Scheme) rules and wrongly assumed that the Scheme did not apply to their employees. As a result, the Claimant was not paid during the period of lay off.

The Respondent realised its error too late and its application to the Government for wage subsidies under the Scheme was rejected. The Claimant subsequently brought a claim in the Tribunal to recover the wages he had not been paid.

The Claimant’s claim was unsuccessful because the Tribunal considered that the Respondent had legitimately exercised a contractual power to lay the employee off for short periods. Nevertheless, the Tribunal’s judgment stated that the Respondent had clearly interpreted the rules of the Scheme incorrectly. It also expressed the view that the error the Respondent had made was unreasonable.

The Deputy Chairman of the Tribunal said: “On any reading of the Scheme documentation it is not [an error which]any person should make, let alone an employer who has employees depending on their salary to be able to cover they day-to-day outgoings”.

The important thing to note is that the Tribunal concluded that the Scheme was an arrangement between the Jersey Government and employers. The Claimant’s contract of employment and entitlement to pay under it was not affected by the mere fact of the Scheme’s existence. It also concluded that the issue of whether an employee has been paid properly is “a matter between the employee and employer, and not the States”.

This case was heard in Jersey and related to the Jersey Government’s own wage scheme, not the UK Government’s Coronavirus Job Retention Scheme (CRJS). It is, though, an indication of things to come in the UK in relation to disputes concerning entitlements to pay under the CRJS and UK employment tribunals being required to adjudicate employer failures to pay furloughed employees correctly.

If you have any questions about the CRJS, please email or call our Employment Law team today on 0113 207 0000.

 

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Paul Kelly

Partner and Head of Employment
Employment Law
PKelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks
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Paul Kelly Blacks Solicitors LLP