Mr M Akioyame v Epsom and St Helier University Hospital NHS Trust: 2305005/2022 and 2300999/2023
JUDGMENT
[1]The claim for unlawful deduction from wages is struck out save for the claims described as follows in the Claimant’s schedule of loss dated 28/6/23 “Audit of 01/10/2022 - 28/12/22 shows 9 overruns at £222.00=£1998.00, 30/05/2022-18/05/2022 additional 9 overruns at 222.00= £1998.00”.[2]The Claimant’s application to amend his claim to include a direct age discrimination claim is refused[3]The Claimant’s application to amend his direct race discrimination claim to add the material in paragraphs 3.1-3.4 inclusive of his document entitled “Further and Better Particulars For Hearing on 18/6/2024” is refused.REASONS
[1]I was referred to a bundle of 199 pages, to a document entitled “Further and Better Particulars For Hearing on 18/6/2024 and Application to Add Age Discrimination claim” and to the Respondent’s written submissions. I did not receive any witness evidence. I received oral submissions from both sides. The wages claim[2]This is set out in the Claimants Schedule of Loss dated 28/6/23 as follows: Unpaid Wages: 111 days at £200.00 (period 30/03/2020-20/07/2020) = £22,200.00 Extra 2 sessions per week (30/03/2020-21/06/2020 = £5,328.00 Extra 1 session per week (22/06/2020-31/03/2021 = £8214.00 30/05/2022-18/05/2022, additional 9 overruns at £222.00 period = £1998.00 Audit of 01/10/2022- 28/12/2022- show 9 overruns at £222.00= £1998.00[3]Relevant parts of section 23 ERA 1996 read as follows: 23 (1)A worker may present a complaint to an employment tribunal— 2305005/2022 & 2300999/2023 2 (a)that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (2)Subject to subsection (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 was made, or ... (3)Where a complaint is brought under this section in respect of— (a)a series of deductions or payments, or ... the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (4)Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (4A)An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint.[4]I reject the Claimant’s submission that a claim for a wage-deduction prior to the two-year period can be claimed if it is part of a series of deductions ending within the two year period, which submission is contrary to the clear meaning of the words “(despite subsections (3) and (4))” in section 23(4A).[5]The Claimant presented two claims claiming unpaid wages, the first of which on 29/12/22. The two-year period ending with that date started on 30/12/20. The period of three months prior to the presentation of the claim (as extended by ACAS conciliation) started on 15/9/22.[6]The claims for £22200 and £5328 are for wages said to have been deducted earlier than the two-year period and hence they are barred by section 23(4A).[7]An unspecified part of the claim for £8214.00 is for deductions made within the two-year period but I find that any claim that that was part of a series of deductions ending on or after 15/9/22 (ie part of a series with the claim described as “Audit of 01/10/2022- 28/12/2022- show 9 overruns at £222.00= £1998.00”) has no reasonable prospect of success, because they are described differently by the Claimant and there is a gap of 18 months between 31/3/21 and 1/10/22.[8]The Claimant has not given any evidence and I am not satisfied that it was not reasonably practicable for him to bring his claim for the £8214 in time.[9]The period in respect of which the first claimed sum of £1998.00 is made is unclear as it reads “30/05/2022-18/05/2022”. It appears to fall within the 2-year period but earlier than Case number 2305005/2022 & 2300999/2023 EMPLOYMENT TRIBUNALS Heard at: Croydon (by video) on: 25 October 2024 Claimant: Mr Martin Akioyame Respondent: Epsom & St Helier University Hospital NHS Trust Before: Employment Judge Fowell Representations: Claimant: Rhys Johns of Counsel, instructed by Craden Moore solicitors Respondent: Stuart Brittenden KC, instructed by Bevan Brittan LLP[1]The application to strike out the claim of race discrimination, made on the basis that the claimant had failed to comply with the Tribunal’s order of 18 June 2024 and/or was guilty of unreasonable conduct, is dismissed as disproportionate.[2]The claimant is to pay the respondent’s costs of the application, in the sum of £1,950