Mrs A Pimperton v Mellors Catering Services Ltd: 1803281/2021
JUDGMENT
AFTER PRELIMINARY HEARING The claim is dismissed, having been presented out of time.REASONS
[1]The Respondent provides catering services to schools. The Claimant works for the Respondent as a general kitchen assistant at Rawmarsh Community School. After a period of early conciliation through ACAS from 9 to 15 June 2021, she presented a claim to the Tribunal on 18 June 2021 alleging that the Respondent had failed to pay her the correct amount of holiday pay during a period from March to September 2020.[2]The Tribunal has to decide as a preliminary point whether it has power to deal with the claim in the light of the date on which it was presented and the time limits for such claims.[3]The time limit for presenting a claim of underpayment of holiday pay is slightly different according to how the claim is categorised. If it is viewed as a claim under the Working Time Regulations 1998 (WTR) that an employer had failed to pay a worker any part of the amount due to her for a period of leave under Regulation 16(1) WTR, the claim must be made before the end of the period of three months beginning with the date on which it is alleged the payment should have been made (Regulation 30(2)(a)). The claim can proceed, however, if the Tribunal is satisfied that it was not reasonably practicable for the worker to present the claim by that date and she has presented it within a further period that the Tribunal considers reasonable (Regulation 30(2)(b)).[4]If the claim is viewed as a claim that the employer has made an unauthorised deduction from the worker’s wages (which includes holiday pay), the claim must be made before the end of the period of three months beginning with the date of payment of the underpayment or, if there is a series of underpayments, before the end of the period of three months beginning with the last underpayment in the series (Section 23(3) of the Employment Rights Act 1996 – the ERA). If the Tribunal is satisfied that it was not reasonably practicable for the worker to present the claim by that date, the claim can still proceed if the Tribunal accepts that it was made within a further period the Tribunal considers reasonable (Section 23(4) ERA).[5]In either case, the legislation extends the time limit for bringing a claim to allow for the period of early conciliation through ACAS, but only if the worker contacted ACAS to start the early conciliation process within the three month time limit (see Regulation 30B WTR and Section 207B ERA).[6]At the Preliminary Hearing, the Claimant confirmed that the dates on which she believed she had been underpaid holiday pay were 1 and 29 May, 24 June, 24 July and 21 August 2020. For the purposes of establishing whether the claim has been presented in time, the Tribunal views this as an alleged series of unauthorised deductions from wages ending with 21 August 2020. As she did not contact ACAS under the early conciliation procedure until 9 June 2021, the period of early conciliation does not extend the time limit for her claim. Her claim should have been presented by 20 November 2020. It was not in fact made until nearly seven months later.[7]It is for the Claimant to establish that it was not reasonably feasible for her to present her claim within the usual three-month time limit. The fact that a Claimant does not know of her right to bring a claim or the time limit for bringing it does not mean it was not reasonably feasible for her to present the claim, unless her ignorance of her right and the time limit was reasonable. The Tribunal takes judicial notice of the fact that information about the right to holiday pay and how to enforce it is readily available on the internet, including, for example, on Government and ACAS websites that are authoritative, free, and easy to access.[8]On 21 September 2021, the Tribunal directed the Claimant to provide a statement setting out her evidence on why her claim was not presented earlier 14 days before the Preliminary Hearing. On 26 November 2021 that direction was varied to require the Claimant to provide her statement 28 days in advance of the Hearing. The Claimant did not submit a witness statement but she and some of her fellow Claimants did send in a letter in which they said that they were unaware of their rights “at this time”. They had discovered that an ex-colleague had put a claim in against the Respondent and been paid out, but she had been told not to disclose this to anyone else. At the Preliminary Hearing, the Claimant gave oral evidence about the circumstances surrounding her claim. On the basis of that letter and oral evidence, the Tribunal makes the following findings.[9]The Claimant was on furlough from March to September 2020. At that time, she assumed that she was being paid correctly. At the October 2020 half-term break, the Claimant was furloughed again and was paid at 80% of her normal rate of pay, but then received a 20% top up in their pay on 13 November. She and her colleagues wondered why the Respondent had done this, given that they had not received a top up for their pay during furlough before, and the Claimant queried it with her manager. The Claimant believes that her manager spoke to someone else in the company who eventually stated that the payments were right.[10]Sometime in May 2021 the Claimant found out that a former colleague had received a payout, though she did not know what this was for. She questioned for the first time whether she might also have a claim. She approached ACAS on 9 June and brought a claim to the Tribunal nine days later.[11]The Tribunal accepts that it was not reasonably feasible for the Claimant to have presented a claim within the three-month time limit. It was not until she saw that she had received a top up to her furlough pay for the October halfterm break that she had reason to query the way in which she had paid during the earlier period of furlough. It was not reasonably practicable for her to research her right to holiday pay and how to enforce it in the week before the time limit expired.[12]The Tribunal does not accept, however, that the Claimant then brough her claim within another reasonable period. The Tribunal accepts that the Claimant was not aware of her rights at this time, but she took no steps to find out about them and how to enforce them. Although she queried what she had been paid for the October half-term with her manager, when she was told that she had been paid correctly, she did nothing to check whether that meant she had been paid incorrectly for the previous period of furlough. Although she herself rarely uses the internet, her son is able to do so, and the Tribunal finds that she would have found out about her rights and how to enforce them if she had taken reasonable steps to research them. It was not until several months later, on discovering that an ex-colleague had received a pay out, that she did anything to progress a claim to the Tribunal.[13]As the Tribunal does not accept the claim has been brought within a further reasonable period, it is dismissed.