Mrs A Ashokan and Mr D Paramasivan v Ganns Ltd Subway: 2304534/2025 and 2304535/2025 Mrs A Ashokan and Mr D Paramasivan v Ganns Ltd Subway: 2304534/2025 and 2304535/2025
EMPLOYMENT TRIBUNALS
Case No 2304534/2025, 2304535/2025
Between
Mrs A Ashokan and Mr D ParamasivanClaimantGanns Ltd SubwayRespondent
Before
Employment Judge EnglandDate 6 March 2026
REASONS
[1]These joined cases were listed for trial to hear claims of holiday pay. The parties attended a preliminary hearing on 11 December 2025 at which the issues were discussed, including a question of whether the claims were started in time.[2]There was to be a 1 day trial on 11 December 2025 but this was instead converted to a preliminary because neither party was ready for trial. The question of whether the claims were started in time was highlighted but the Tribunal decided to list that matter to be dealt with at the further listed trial. I heard evidence and submissions about the preliminary issue of whether the claims were issued in time as well as considered relevant documentation provided to me for the trial.[3]The relevant agreed dates for both claims are:a. ACAS early conciliation periods: 15 April 2025 - 22 April 2025.b. Issuing of claims: 30 April 2025[4]Although the PH records that it is agreed that both Claimants’ employment ended on 16 December 2024, consistent with the ET1s and ET3s, the Claimants informed me that they were last paid on 13 December and consider they were dismissed on 15 December because this is when they were told they were removed and were removed from the Whatsapp groups that provided shifts.[5]The Respondent argued that the Claimants were not dismissed but ‘left of their own volition’, they were allocated a shift in the week of 16 December but did not attend work and the Respondent considered that their last working day was 31 December 2024 based on immigration documentation. The Respondent agreed that the last payment was made on 13 December and that the Claimants were paid fortnightly.[6]It was not necessary to determine the exact date that employment ended because on either account the Claimants were not employed by the end of December 2024 at the latest. The difference in potential end date was so small I did not consider that it affected my considerations of the time limits.[7]The Claimants contacted ACAS to begin the early conciliation period out of time because the start date (15 April 2025) is over 3 months from the end of employment. This 3 month deadline is the time set by Parliament regardless of whichever legal label is applied to the holiday pay claim.[8]The legal test requires me to consider if it was ‘not reasonably practicable’ for the Claimants to have started their claim in time. There is vast case law about this test and a summary includes:a. The burden for proving the claims are in time is on the Claimant [Marks & Spencer v Williams-Ryan [2005] IRLR 562].b. The classic explanation of what ‘reasonably practicable’ means is that of May LJ in Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, who equated the test with “was it reasonably feasible” [particularly paras. 34 and 35]. This was further considered in Asda Stores Ltd v Kauser UKEAT/0165/07.c. Marks & Spencer v Williams-Ryan [2005] IRLR 562 highlighted the need to apply “a liberal interpretation in favour of the employee.”, as well as consider “not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances.”[9]I took into account that:a. The Claimant’s first language is not English, although they do speak and understand English well. They have not asked for or needed an interpreter for the Tribunal proceedings.b. They were subject to immigration controls for their visa purposes and this places them in a position of vulnerability around job security.c. Nevertheless, they had been asking about the holiday pay owed to them since October 2024 and therefore had a relatively long period before the time limit of 3 months ran out in which they believed they were owed holiday pay and were challenging what they had been given.d. They contacted the Citizens Advice Bureau (CAB) by mid December 2024 and had written to their employer in that regard to claim for more holiday pay.e. By 14 December 2025 they had raised a grievance about holiday pay.f. They contacted the CAB again on 02 January 2025, as explained in oral evidence.[10]I concluded that:a. The Claimants were aware of the holiday pay owed many months before the Tribunal time limit expired and they had taken advice from the CAB with at least 2.5 months left.b. The lack of clarity about when employment ended did not assist the practicability of starting a claim but that occurred in December 2024 and I did not consider it was objectively reasonable, or subjectively as a fact, that the Claimants were unaware of their end date such that this impacted on their ability to start a claim earlier. They understood by the start of January 2025 that they were no longer employed and their own case is they were not employed from midDecember 2024.c. Ultimately, the Claimants presented no reason why they were able to know about and start the claim process in mid April, as they did, but not 2-4 weeks earlier as they would have needed to have done to have started the claim in time.d. It was therefore not “not reasonably practicable” to have issued the claims in time and the claims were dismissed for being out of time.[11]If I had have decided that it was not reasonably practicable to have started the claims in time, I would have concluded that the claims were started within a reasonable time after that point because the period was relatively short. I include this point merely for completeness and it does not change the fact that the claims are out of time.[12]As stated in the hearing, my decision does not reflect the merits of the claims but a technical point about Tribunal time limits set by Parliament. My initial view of the papers was that the Claimants had not been treated particularly well in terms of communication from and control held by the Respondent, but these are not matters I can take into account on this technical point.