Ms L Whitthorn v T Richardson (T/a Injeanious Hair & Beauty): 1404025/2023
EMPLOYMENT TRIBUNALS
Case No 1404025/2023
Between
Ms L WhitthornClaimantT Richardson (T/a Injeanious Hair & Beauty)Respondent
Before
Employment Judge N J RoperDate 13 February 2025
JUDGMENT
The judgment of the tribunal is that the claimant’s claims for discrimination, breach of contract, and for unlawful deduction from wages are all dismissed as having been presented out of time. This does not affect the claimant’s remaining claim for accrued holiday pay.
REASONS
[1]This is the judgment following a Preliminary Hearing to determine whether or not the majority of the claimant’s claims were presented in time.[2]This has been a remote hearing which has been consented to by the parties. The form of remote hearing was by CVP Video. A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing.[3]I have heard from the claimant, and from Miss Cook on her behalf. I have aIso heard from Mr Akram on behalf of the respondent. I find the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to any factual and legal submissions made by and on behalf of the respective parties. Case No. 1404025/2023 2[4]The Facts:[5]The claimant and the respondent are both hairdressers, and had been friends when they previously worked together, but unfortunately they have now fallen out acrimoniously. The claimant Ms Louise Witthorn was a self-employed hairdresser with her own salon. The respondent Tina Richardson took over her own salon in Alton which more latterly traded as Injeanious Hair & Beauty. At the beginning of 2018 the claimant started to work for the respondent. The claimant asserts she commenced employment with the respondent with effect from 11 January 2018. The respondent agrees that the claimant did some work in her salon from that time, but she asserts that the claimant remained a self-employed independent contractor in her own right. The claimant worked one eight-hour day each week at the respondent’s salon from 2018, which increased to two eight hour days each week from January 2020.[6]The claimant was pregnant during 2018 and has raised allegations of direct discrimination on the grounds of pregnancy and maternity, which are otherwise presented as claims of harassment related to her sex. They are limited in time to the period between July and December 2018. The claimant was then absent on maternity leave from 21 December 2018, and she returned to work on 5 December 2019. She claims that the respondent should have paid her statutory maternity pay during this period but has failed to do so. The respondent accepts that this was not paid, but the respondent does not accept that she had any responsibility to do so.[7]We then enter the period of the Covid-19 pandemic. There were three lockdown periods: the first was 23 March 2020 until 4 July 2020; the second was from 5 November 2020 until 2 December 2020; and the third was from 3 January 2021 until 23 March 2021. It is not in dispute that the claimant was not paid during these periods. The claimant now asserts that she should have received furlough pay during these lockdown periods. The respondent denies this, and she asserts that no agreement was ever reached between them that the claimant would receive any furlough pay, and the respondent did not claim this under the relevant Government scheme at the time.[8]The respondent asserts that following the end of the third lockdown period the parties agreed that their relationship would change to one of employer and employee. The respondent has produced copies of extracts from her computerised accounting system which show that the respondent’s business employed the claimant as a new starter and an employee with effect from 15 April 2021. She was paid and treated as an employee from this date.[9]The parties are in strong disagreement as to the commencement date of the claimant’s employment. The only contemporaneous document in support of either side is the computerised tax records which support the respondent’s contention that the claimant became an employee with effect from 15 April 2021. For this reason, on the balance of probabilities I find that the claimant worked for the respondent as a self-employed independent contractor from the start of 2018, and only became an employee on 15 April 2021.[10]The respondent then closed her salon in Alton with effect from 5 September 2022 in order to move to a new salon in Basingstoke, which opened on 13 November 2022. The claimant asserts that she was not paid during this period of time as she should have been.[11]The parties then had an acrimonious dispute, and the claimant resigned her employment with immediate effect on 21 February 2023. She claims unfair constructive dismissal. The claimant commenced the Early Conciliation process with ACAS on 12 May 2023 (Day A). ACAS issued the Early Conciliation Certificate on 23 June 2023 (Day B). The claimant presented these proceedings on 12 July 2023.[12]There was then a case management preliminary hearing by telephone before Employment Judge Volkmer and she prepared a Case Management Order dated 10 January 2024 (“the Order”). This preliminary hearing was listed to determine whether the claimant’s claims of discrimination, unauthorised deductions from wages, and breach of contract have been presented in time. In addition, this hearing was listed to determine whether or not the claimant had two years’ continuous employment such that the tribunal has jurisdiction to hear her claim for unfair constructive dismissal. Case No. 1404025/2023 3[13]The claimant has given evidence to the effect that she was unable to present these proceedings earlier because it would have been too difficult for her to have done so while still working at the respondent’s salon. She accepts that she could have obtained advice and assistance earlier than she did, when she obtained assistance from her friend Miss Cook, and also sought assistance from the CA be an early 2023. The claimant does not assert that she was precluded or otherwise prevented from issuing these proceedings by illness or other extraneous event.[14]Having established the above facts, I now apply the law.[15]The Law:[16]One of the relevant statutes is the Employment Rights Act 1996 (“the Act”).[17]Under s108(1) of the Act there is a required qualifying period of two years of continuous employment to present a claim of unfair dismissal.[18]Section 111(2) of the Act provides that an employment tribunal shall not consider a complaint of unfair dismissal unless it is presented before the end of the period of three months beginning with the effective date of termination, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[19]There are similar time limit provisions relating to the claimant’s claim for unlawful deduction from wages under s23 of the Act, and for breach of contract, which are contained in article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the Order”).[20]The claimant also claims in respect of holiday pay for accrued but untaken holiday under the Working Time Regulations 1998 (“the Regulations”), and there are similar time limit provisions in Regulation 30(2), although under Regulation 30(2)(a) time does not necessarily start to run from the termination of the relationship, and it might otherwise run from the date the payment should have been made.[21]This is also a claim alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges direct discrimination and harassment. The protected characteristics relied upon are sex and/or pregnancy/maternity.[22]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.[23]With effect from 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings.[24]Section 207B of the Act provides:(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a Case No. 1404025/2023 4 relevant provision, the power is exercisable in relation to the time limit as extended by this section.[25]Section 140B EqA provides:(1) This section applies where a time limit is set by section 123(1)(a) or section 129(3) or (4).(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when the time limit set by section 123(1)(a) or section 129(3) or(4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by section 123(1)(a) or section 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exerciseable in relation to that time limit is extended by this section.[26]The relevant law relating to Early Conciliation (“EC”) and EC certificates, and the jurisdiction of the Employment Tribunal to hear relevant proceedings is as follows. Section 18 of the Employment Tribunals Act 1996 defines “relevant proceedings” for these purposes. This includes in subsection 18(1) the discrimination at work provisions under section 20 of the EqA. Section 140B EqA sets out how the EC process is taken into account. Where the EC process applies, the limitation date should always be extended first by section 140B(3) or its equivalent. However, where this date as extended by section 140B(3) or its equivalent is within one month of the date when the claimant receives (or is deemed to receive) the EC certificate, time to present the claim is further extended under section 140B(4) for a period of one month (applying Luton Borough Council v Haque [2018] ICR 1388 EAT). In other words, it is necessary first to calculate the primary limitation period, and then add the EC period. Having reached that date, it is necessary to ask whether it is before or after one month after Day B (the date of issue of the EC certificate). If it is before then the limitation date is extended to one month after Day B. Otherwise, if it is after one month after Day B, then limitation will be extended to that later date.[27]I have been referred to and have considered the following cases, namely: Palmer and Saunders v Southend-on-Sea BC [1984] ICR 372; Porter v Bandridge Ltd [1978] IRLR 271 CA; Wall’s Meat Co v Khan [1978] IRLR 499; London Underground Ltd v Noel [1999] IRLR 621; Dedman v British Building and Engineering Appliances [1974] 1 All ER 520; London International College v Sen [1993] IRLR 333 CA; Asda Stores Ltd v Kauser UKEAT/0165/07; Schultz v Esso Petroleum Ltd [1999] IRLR 488 CA; Cullinane v Balfour Beattie Engineering Services Ltd UKEAT/0537/10; Wolverhampton University v Elbeltagi [2007] All E R (D) 303 EAT; Cygnet Behavioural Health Ltd v Britton [2022] IRLR 906 EAT; Royal Mail Group v Jhuti (UKEAT/0020/16/RN); Riley v Tesco Stores [1980] ICR 323; Croydon HA v Jaufurally [1986] ICR 4 EAT; British Coal v Keeble [1997] IRLR 336 EAT; Robertson v Bexley Community Service [2003] IRLR 434 CA; Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640; Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT; Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA; London Borough of Southwark v Afolabi [2003] IRLR 220 CA; Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23;[28]The Normal Time Limit:[29]In this case the claimant’s effective date of termination of employment was 21 February 2023. The claimant commenced the Early Conciliation process with ACAS on 12 May 2023 (“Day A”), and ACAS issued the Early Conciliation Certificate on 23 June 2023 (“Day B”). The claimant presented these proceedings on 12 July 2023. Any claims arising before 13 February 2023 have not on the face of it been brought within the normal time limit of three months. The unfair dismissal claim was brought within time. Case No. 1404025/2023 5[30]Unfair Dismissal[31]For the reasons set out above I have found that the claimant only became an employee of the respondent with effect from 15 April 2021. She did not have two years’ continues employment as at the time of the termination of her employment on 21 February 2023. Applying section 108 of the Act, this tribunal does not have jurisdiction to hear her constructive unfair dismissal claim, and it is hereby dismissed.[32]Breach of Contract and Unlawful Deductions[33]These claims not been presented within the normal time limit of three months. The grounds relied upon by the claimant for suggesting that it was not reasonably practicable to have issued proceedings within the relevant time limit are that she did not wish to poison the working relationship with the respondent and therefore did not wish to present these potential claims before their relationship deteriorated in an acrimonious manner.[34]The question of whether or not it was reasonably practicable for the claimant to have presented his claim in time is to be considered having regard to the following authorities. In Wall’s Meat Co v Khan Lord Denning, (quoting himself in Dedman v British Building and Engineering Appliances) stated "it is simply to ask this question: has the man just cause or excuse for not presenting his complaint within the prescribed time?" The burden of proof is on the claimant, see Porter v Bandridge Ltd. In addition, the Tribunal must have regard to the entire period of the time limit (Elbeltagi).[35]In Palmer and Saunders v Southend-on-Sea BC the headnote suggests: "As the authorities also make clear, the answer to that question is pre-eminently an issue of fact for the Industrial Tribunal taking all the circumstances of the given case into account, and it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, in determining whether or not it was reasonably practicable to present the complaint in time, an Industrial Tribunal may wish to consider the substantial cause of the employee’s failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Tribunal to investigate whether, at the time of dismissal, and if not when thereafter, the employee knew that he had the right to complain of unfair dismissal; in some cases the Tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for the Tribunal to know whether the employee was being advised at any material time and, if so, by whom; the extent of the advisor’s knowledge of the facts of the employee's case; and of the nature of any advice which they may have given him. It will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there was any substantial failure on the part of the employee or his adviser which led to the failure to comply with the time limit. The Industrial Tribunal may also wish to consider the manner in which and the reason for which the employee was dismissed, including the extent to which, if at all, the employer’s conciliatory appeals machinery had been used. Contrary to the argument advanced on behalf of the appellants in the present case and the obiter dictum of Kilner Brown J in Crown Agents for Overseas Governments and Administrations v Lawal [1978] IRLR542, however, the mere fact that an employee was pursuing an appeal through the internal machinery does not mean that it was not reasonably practicable for the unfair dismissal application to be made in time. The views expressed by the EAT in Bodha v Hampshire Area Health Authority on this point were preferred to those expressed in Lawal:-[36]To this end the Tribunal should consider:(1) the substantial cause of the claimant's failure to comply with the time limit;(2) whether there was any physical impediment preventing compliance, such as illness, or a postal strike;(3) whether, and if so when, the claimant knew of his rights;(4) whether the employer had misrepresented any relevant matter to the employee; and(5) whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.[37]In addition, in Palmer and Saunders v Southend-on-Sea BC, and following its general review of the authorities, the Court of Appeal (per May LJ) concluded that "reasonably practicable" does not mean reasonable (which would be too favourable to employees), and Case No. 1404025/2023 6 does not mean physically possible (which would be too favourable to employers) but means something like "reasonably feasible".[38]Subsequently in London Underground Ltd v Noel, Judge LJ stated at paragraph 24 "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 a good reason" for doing so. As Browne Wilkinson J (as he then was) observed: "The statutory test remains one of practicability … the statutory test is not satisfied just because it was reasonable not to do what could be done" (Bodha v Hampshire Area Health Authority [1982] ICR 200 at p 204).[39]The Employment Tribunal must make clear findings about why the claimant failed to present his originating application in time, and then assess whether he has demonstrated that it was not reasonably practicable to have presented it in time (London International College v Sen.[40]If the claimant professes ignorance of his right to make a claim and/or the legal regime in respect of time limits, the overarching question for the tribunal is whether that state of mind (that is the ignorance or the mistake) was itself reasonable. It is not likely to be reasonable if it arises from a failure to make such enquiries as ought to have been made in all the circumstances (Wall’s Meat Co Ltd v Khan).[41]In Cygnet Behavioural Health Ltd v Britton, the EAT reviewed the authorities from which it derived the following principles:(i) the test is a strict one (paragraphs 19 to 20, 27);(ii) the onus of proving that presentation of the claim in time was not reasonably practicable rests with the claimant;(iii) where the claimant relies on ignorance of his or her rights or the time limits, the Tribunal needs to be satisfied both of the truth of the assertion and that the ignorance was reasonable on an objective enquiry (paragraph 23); and(iv) the person considering bringing the claim is expected to appraise themselves of the time limits that apply; it is their responsibility to do so (paragraph 53).[42]Any application for extension of time must be supported by evidence. An employee seeking to avoid the application of the primary time limit must put the relevant material before the Tribunal (see Royal Mail Group v Jhuti)[43]Underhill P as he then was considered the period after the expiry of the primary time limit in Cullinane v Balfour Beattie Engineering Services Ltd (in the context of the time limit under section 139 of the Trade Union & Labour Relations (Consolidation) Act 1992, which is the same test as in section 111 of the Act) at paragraph 16: “The question at “stage 2” is what period - that is, between the expiry of the primary time limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.”[44]Applying the above legal principles, I find that it was reasonably practicable for the claimant to have presented her claims for breach of contract and unlawful deduction from wages on each occasion when the claims arose. The time limits expired for the maternity leave pay claim in early 2020; for the alleged lockdown payments in summer 2021; and in respect of the salon move within three months of 30 November 2022. I find it was really practicable for the claims to have been presented within time, and the claimant did not do so. In addition, the claimant has not discharged the burden of proof to satisfy me that the claims were then presented within such further period as was reasonable.[45]In conclusion therefore the claimant’s claims for unlawful deduction from wages and/or for breach of contract are hereby dismissed because they have been presented out of time. This does not affect claimant’s claim for accrued but unpaid holiday pay which is dealt with in the case management order of today’s date.[46]Discrimination Claim[47]The grounds relied upon by the claimant for suggesting that it would be just and equitable to extend the time limit are the same, namely that she did not wish to poison the working Case No. 1404025/2023 7 relationship with the respondent and therefore did not wish to present these potential claims before their relationship deteriorated in an acrimonious manner.[48]I have considered the factors in section 33 of the Limitation Act 1980 which is referred to in the Keeble decision. For the record, these are the length of and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the parties cooperated with any request for information; the promptness with which the claimant acted once the facts giving rise to the cause of action were known; and the steps taken by the claimant to obtain appropriate professional advice.[49]However, it is clear from the comments of Underhill LJ in Adedeji, that a rigid adherence to such a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion. He observed in paragraph 37: “The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time including in particular … “The length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.”[50]This follows the dicta of Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan at paragraphs 18 and 19: “[18] … It is plain from the language used (“such other period as the employment tribunal thinks just and equitable”) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the equality act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in the circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list … [19] that said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”[51]It is clear from the following comments of Auld LJ in Robertson v Bexley Community Service that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard: "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule". These comments have been supported in Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA.[52]This strictness of approach was approved by the Court of Appeal in Adedeji, a case in which the Court approved a refusal to extend time where the originating application was presented just three days out of time. Underhill LJ approved the assertion that there is a public interest in the enforcement of time limits and that they are applied strictly in employment tribunals.[53]Per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan (at the EAT) before the Employment Tribunal will extend time under section 123(1)(b) it will expect a claimant to be able to explain firstly why the initial time period was not met and secondly why, after that initial time period expired, the claim was not brought earlier than it was.[54]However, As Sedley LJ stated in Chief Constable of Lincolnshire Police v Caston at paragraphs 31 and 32: “In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. This has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that the limitation is not at large: there are statutory time limits which will shut Case No. 1404025/2023 8 out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact sound judgement, to be answered case-by-case by the tribunal of first instance which is empowered to answer it.”[55]In exercising its discretion, the Tribunal should consider all the factors in the particular case that it considers relevant on the facts before it, including, in particular, the length of, and the reasons for, the delay in bringing proceedings: see Adedeji per Underhill LJ (at paragraph 37).[56]In Jones v Secretary of State for Health and Social Care [2024] EAT 2, the EAT cautiones Tribunals against quoting in isolation what was said in paragraph 25 of Bexley, and a more nuanced summary is to be found in Caston.[57]The claim presented by the claimant relates to comments which she says were made to her between the period from July 2018 to December 2018 nearly five years before the presentation of these proceedings. The claimant has not convinced me that there is any good reason why she failed to present these proceedings at the time, or at any stage in the intervening period. In all the circumstances I do not consider that it would be just and equitable to allow an extension of time, and accordingly the claimant’s claims under sections 18 and 26 of the EqA are also dismissed as having been presented out of time.[58]The claimant’s remaining claim for accrued but unpaid holiday pay will proceed and it is dealt with under the attached case management order of today’s date.