Mr T White v Ringwood Body Consultancy Ltd: 1401400/2022
JUDGMENT
The Claimant’s claim of unlawful deduction from wages is dismissed, for want of jurisdiction.REASONS
[1]The Claimant was employed by the Respondent as an Osteopath, for approximately a year and a half, until his resignation, with effect 31 August 2021. There is no dispute that the limitation period for presenting his claim, taking into account the extension for ACAS Early Conciliation (EC) expired on 8 February 2022, but that he did not do so until 20 April 2022, approximately two and a half months later. His claim was for alleged arrears of pay/commission/holiday pay.[2]This substantive hearing therefore determined, as a preliminary issue, whether or not the Tribunal had jurisdiction to consider that claim and if it did, to then go on to decide it.[3]By way of a preliminary point prior to consideration of this issue Mr Brown applied for leave to adduce evidence of ‘without prejudice’ correspondence from the Claimant, going to the limitation point and not currently in either party’s bundle. Mr Pickett objected to that application due to its lateness and the potential prejudice to the time allowed for this Hearing (3 hours). I refused the application, on the basis that in any event, there was no dispute between the parties that there had been without prejudice negotiations during early conciliation and continuing thereafter into early February 2022 and therefore that agreed fact could be taken into account, without sight of without prejudice correspondence.The Law
[4]The statutory test is set out in s.23 of the Employment Rights Act 1996 (‘ERA’), namely: (2) Subject to sub-section (4) an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with –(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction is made, or(b) … (4) Where the employment tribunal is satisfied that it was not reasonably practicable for the complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if is presented within such further period as the tribunal considers reasonable.[5]I referred myself to the guidance in the cases of Wall’s Meat Co Ltd v Khan [1979] ICR 52, EWCA, as to the Tribunal’s discretion in such matters (an empirical factual test based on common sense) and also that as stated in Porter v Bandridge Ltd [1978] ICR 943, EWCA, the burden of proof of satisfying the statutory test is upon the Claimant.[6]That latter authority, in which the Court of Appeal was referred to the earlier case of Dedman v British Building and Engineering Appliances [1973] IRLR 379 EWCA, also stated that where a claimant pleads ignorance as to his rights, the tribunal must ask further questions ‘what were his opportunities for finding out his rights? Did he take them? If not, why not? Was he misled or deceived?’ The Court went on to say that the correct test is not whether the Claimant knew of his rights, but whether he ought to have known of them.[7]While, in the Dedman case, it was indicated that the same test, as contained in s.111(2) ERA (in relation to claims of unfair dismissal), should be given a liberal construction in favour of the employee, more recent authority, such as London Underground v Noel [1999] IRLR 621 EWCA said this: “By section 111(2)(b) this period may be extended when the tribunal is satisfied ‘that it was not reasonably practicable for the complaint to be presented before the end of that period’. The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, ‘in all the circumstances’, nor when it is ‘just and reasonable’, nor even where the tribunal, ‘considers that there is good reason’ for doing so.” The test is, therefore, a strict one, perhaps in contrast to the “just and equitable” extension in the case of discrimination claims, in which test the Tribunal has considerably greater discretion.The Facts
[8]I heard evidence from the Claimant and both representatives made submissions. 9. ‘Not Reasonably Practicable’ and ‘within such further period as was reasonable’. I summarise the Claimant’s evidence on this point as follows:a. He had, in early September 2021, taken legal advice from a solicitor specialising in employment law. He said that the solicitor had advised him only on the merits of his claim for deduction from wages, not in respect of bringing a claim. However, he did say that that solicitor had advised him to delay presenting the claim as much as possible, to allow for negotiations. He did, however, inform the Respondent in early September that it was his intention to take legal proceedings. But as this threat did not get the desired response from the Respondent, he accordingly entered into ACAS EC approximately two or three days before expiry of the initial three-month time limit.b. He had been in ‘without prejudice’ discussions with the Respondent, until either 3 February 2022 (his evidence in reexamination), or 8 February 2022 (his evidence in crossexamination), at which point he told ACAS that he would ‘go to the Tribunal’.c. He ‘truly believed’ that the ACAS EC process was the process of ‘bringing the claim’. He did not understand receipt of the EC Certificate as indicating that that process was at an end and that he needed therefore to present his claim to the Tribunal.d. On 14 February 2022, having not heard from the Tribunal, he contacted ACAS, who, he said, told him that he ‘could expect to hear from the Tribunal. They informed me to wait 4-6 weeks.’ He agreed, however that despite this deadline, he still did not present his claim until eight weeks later.e. He said that he had, thereafter, ‘withheld’ bringing the claim, as he feared retribution from the Respondent as to provision of a suitable reference, which he needed for employment in Dubai, where he had gone on 30 January 2022.f. He said that this employment was his ‘main priority’ and that he had put the tribunal claim ‘on the back-burner’, as his ‘future career was more important’.[10]Conclusions in respect of ‘reasonably practicable’. I concluded that it was reasonably practicable for the Claimant to have met the extended limitation date of 8 February 2022 and I do so for the following reasons:a. It seems highly unlikely that the employment solicitor from whom the Claimant took advice in early September 2021 will not have advised him of the relevant time limits and indeed the Claimant exhibited that knowledge by entering into EC, a few days before expiry of the initial three-month time limit, thus allowing, as he said, maximum time for negotiation.b. I don’t accept his evidence that ACAS either told him, or even implied to him that they would be bringing or processing his claim, on his behalf. He has provided no corroborative evidence to support such an assertion and I note that ACAS will advise many thousands of claimants in such cases, the vast majority of whom understand and comply with the need for them to present the claim to the Tribunal within the time limit. It seems inherently unlikely, therefore that an ACAS conciliator would have made such a mistake. The EC certificate itself says that its purpose is ‘to confirm that the prospective claimant (my emphasis) has complied with the requirement … to contact ACAS before instituting proceedings in the Employment Tribunal (clearly indicating that it is for the Claimant to do so).c. When it was suggested to him that he is an intelligent and educated man, he did not demur, but despite those attributes he agreed that he had failed to carry out any research of his own on the issue of who was to bring the claim and by when. He didn’t, for example, even visit the ACAS website (which is crystal-clear on these issues), to satisfy himself that he was proceeding in the correct manner. I take judicial notice that a simple Google search, questioning as to how long a claimant has after the conclusion of EC in which her or she has to bring a claim, reveals several correct and easily understood answers. I consider that this stance of his is four-square with the test in Bandridge, indicating that if it is in fact true that he didn’t know the true situation, then he ought to have done. He had ample opportunity to find out this information, but which he did not avail himself of and I don’t believe that he was mislead by ACAS.[11]Conclusions in respect of ‘further reasonable period’. Even, however, if I were wrong to conclude that it was reasonably practicable for the Claimant to have presented his claim within time, I find, in any event that he thereafter failed to present it within such further time as was reasonable. I do so for the following reasons:a. He delayed a further two and a half months before presenting his claim.b. Even if his account of being told by ACAS that he could expect to hear from the Tribunal within four to six weeks was true (which I don’t accept), he nonetheless took no action, despite there being no such contact from the Tribunal, until eight weeks later.c. It was clear from his evidence that it was his choice to ‘withhold’ his claim, putting it ‘on the back-burner’, when, as I have found, he either will have, or should have known that it was out of time and he must, accordingly, accept the consequences of that choice.Conclusion
[12]For these reasons, therefore, the Claimant’s claim of unlawful deductions from wages is dismissed, for want of jurisdiction.