Mr M Surtees v London Borough of Southwark: 2311719/2024
JUDGMENT
The claim of unauthorised deductions from wages in respect of sick pay and unauthorised deductions from holiday pay was not presented within the applicable time limit. It was reasonably practicable to do so. The claim of unauthorised deductions from wages is therefore dismissed.REASONS
[1]The Claimant in this case is Mr Marc Surtees, and the Respondent is the London Borough of Southwark. I will refer to the parties as the Claimant and the Respondent.[2]The Respondent argues that the Claimant did not bring his claim within the required time limit and that therefore the Tribunal has no jurisdiction to hear it. My judgment, and these written reasons, relate solely to that preliminary issue.[3]The Claimant brings a claim for unauthorised deduction from wages in respect of both sick pay and holiday pay. In summary, the Claimant asserts he is entitled to sick pay and holiday pay (in relation to statutory bank holidays) and that the respondent has unlawfully deducted these sums from his wages. The Respondent denies any sums are owing to the Claimant and accordingly says no unauthorised deductions were made.[4]The Claimant was retired from the Respondent with effect from 31 March 2024 on the grounds of ill health. His final payslip was 19 April 2024. The parties agree that, if the alleged deductions were made, they formed a series of potential deductions, and that the Claimant’s final payslip marks the date of the end of that series.[5]For the purposes of s.23 Employment Rights Act 1996, the Claimant was required to bring his claim to the Tribunal within 3 months, less one day, of 19 April 2024, subject to any ACAS early conciliation extension. The Claimant accepts that he did not bring his claim within that period. He began early conciliation on 8 November 2024, and his claim form was received by the Tribunal on 4 December 2024.[6]The Claimant argues that it was not reasonably practicable for him to bring his claim in time because of the state of his health, and that the claim was presented within a reasonable period thereafter. The Respondent says that the Claimant’s health conditions, and the effect of those at the relevant time, did not mean it was not reasonably practicable for the Claimant to bring his claim in time.[7]Finally, although the judgment in this matter was finalised by me on 12 March 2026 there was an administrative delay in sending it to the parties. I apologise to the parties on behalf of HMCTS for that delay. In the meantime, the request for written reasons was received in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024. Accordingly, the judgment and reasons are included together here. Issues for determination[8]The sole issue I need to decide is that set out in the agreed list of issues at page 38 of the bundle (issue 1.1.3 & 1.1.4). Specifically:a. Was it reasonably practicable for the claim to be made to the tribunal within the time limit; andb. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period thereafter.The hearing
[9]The matter was heard before me, at an in-person hearing, on 12 and 13 March 2026. I was provided with an agreed file of documents at the start of the hearing. The Claimant gave evidence.[10]During the hearing, in a discussion about the law, I explained to the Claimant what the case law says in relation to medical evidence. During the hearing the Claimant provided further medical evidence which was added to the file of documents (the supplementary bundle). The Claimant then gave further evidence about that additional medical evidence.[11]I heard closing arguments from both Mr Allibone and Mr Nacif and then gave an oral judgment with full reasons.Facts
[12]The relevant facts are as follows. Whilst, I have read and considered the documents which the parties identified I should read in advance of the hearing, those referenced in the witness statements and those to which my attention was drawn during the hearing. I have only made the findings of fact which were relevant to the issue I had to decide. Where I have had to resolve any conflict of evidence, I will explain how I have done so. References to page numbers are to the agreed bundle of documents. Interactions between the Claimant and the Respondent[13]In or around July 2022, the Claimant agreed with the respondent that he would be medically retired (page 73). It took the Respondent 21 months to complete the process, and the Claimant retired from the Respondent with effect from 31 March 2024 (page 242).[14]During the period between July 2022 and the Claimant’s retirement, he lodged complaints with the Respondent about his statutory bank holiday entitlement and the conduct of HR, raising a grievance against Mr Longbottom of the Respondent.[15]In terms of his pay, he was initially paid his full salary, which reduced to half in June 2022 and then to nil in January 2023. After that period, he received no pay (page 125).[16]In November 2022, the Claimant found out that his sick pay was not going to be extended. He asked the Respondent to review the position and appealed that decision internally.[17]In January 2023, the Claimant raised the issue of holiday entitlement with HR because his medical retirement was being progressed, and the council began to calculate his annual leave entitlements.[18]On 21 February 2023, the Claimant set out in an email his frustration about how long the process of medical retirement was taking (page 135).[19]On 4 July 2023, his union representative, Mr King, asked for clarification about what the Claimant should be being paid because his pay had stopped (page 234).[20]On 30 March 2024 the Claimant emailed Mr Longbottom of the Respondent to say that there were outstanding matters such as leave payments that needed to be agreed before he signed the paperwork for his retirement (page 165).[21]Nonetheless, pursuant to a letter dated 2 April 2024, the Claimant was retired from the Respondent with effect from 31 March 2024 (page 242). He fundamentally disagreed with this decision to have his retirement take effect from this date because there were still appeals ongoing in relation to the issue of his pay entitlement.[22]The letter of 2 April 2024 explained that the Claimant’s last day of service would be 31 March 2024, and that he would receive 12 weeks’ PILON together and pay for all untaken annual leave between 2022 and 2024 (including carry forward from 2021). It also explained that the Pension Department would contact the Claimant to make arrangements for the payment of his pension and lump sum figure on the Claimant’s return of the relevant form.[23]In an email dated 2 April 2024, the Claimant made clear that he was likely to have to appeal his annual leave entitlement in the settlement as that had not been part of his other appeal (I infer the appeal about his entitlement to sick pay). He stated he would need to seek advice from his union (page 163). In a later email that day he asked again for a breakdown of his leave (page 164).[24]In an email dated 16 April 2024, the Claimant complained to the Respondent about their decision to hear the grievance the Claimant had raised against the conduct of Mr Longbottom without a panel (page 69).[25]The Claimant’s final payslip was dated 19 April 2024. It was for a gross sum of £12,323.82 (page 429).[26]The Claimant did not speak to Mr King or his union about enforcing his rights at this point, partly due to his health and partly because he was still going through an internal appeals process.[27]The Claimant had been able to resolve certain earlier complaints against the Respondent in relation to his pension entitlement and his contractual terms and conditions via these internal processes. He wanted to try and go through the right internal process in relation to the matters which are the subject of these claims.[28]The Claimant should have contacted ACAS by no later than 18 July 2024 for the claims to have been presented potentially in time.[29]At some point between 2 April 2024 and 22 July 2024 the Claimant raised a complaint about untaken leave at the point of his retirement and the entitlement to be paid for that leave.[30]On 22 July 2024, the Claimant was sent a letter from Mr Parker of the Respondent responding to the challenge the Claimant had raised about his untaken leave at the point of retirement. His conclusion was that the Respondent had been paid all the untaken annual leave entitlement (page 48). That same day, the Claimant emailed Mr Plant at the Respondent to appeal that decision, and that appeal was handled by Ms Tsang at the Respondent (page 55).[31]On 5 August the Claimant emailed Ms Tsang of the Respondent to enquire about a status update in relation to that appeal. He then asked why he had not been invited to attend a meeting she had arranged with Mr King (pages 53-54).[32]On 6 August 2024 the Claimant’s appeal in relation to his entitlement to untaken annual leave in relation to the Bank Holiday periods was declined by Ms Tsang. By 6 August 2024 therefore, the Claimant had no further outstanding appeals (page 55-56).[33]At some point, and I infer it was between 6 August 2024 and 2 September 2024, the Claimant, with the assistance of Mr King, referred the matter to Councillor Cryan, who was the member of the Council with responsibility for staff (page 124).[34]On 2 September 2024, in response to an email sent by Mr King, Councillor Cryan confirmed that she had limited ability to intervene in staffing matters and referred the matter back to Mr Plant at the Respondent (page 124).[35]Following that response, a friend suggested an Employment Tribunal claim. The Claimant looked it up on the internet and sent an email to ACAS. The Claimant’s own evidence was that was all that was required.[36]EC began on 8 November 2024 and finished on 28 November 2024 (page 4). ACAS told the Claimant the next stage was an Employment Tribunal claim. The Claimant’s ET1 was received by the Tribunal on 4 December 2024 (page 5).[37]I accept the Claimant’s evidence that following his retirement he was no longer a member of the Union and his contact with Mr King reduced, and that rather than Mr King being his Trade Union Representative, Mr King was continuing to help him on a voluntary basis as a friend. I find, based on the correspondence (for example that of 2 September with Councillor Cryan) that the Claimant was still able to discuss matters with Mr King. The Claimant’s evidence as to his health[38]From February 2022 the Claimant became increasingly unwell. He was diagnosed with bilateral pulmonary embolism in his lung and pneumonia. He has had complications relating to his spleen, liver and pancreas. He has been diagnosed as having Lupus Anticoagulant, which increases the risk of thrombosis. His treatment was complex and ongoing, involving regular care from multiple specialist departments. The effect of the conditions and treatments were life threatening and life changing for the Claimant. It was against this backdrop that the agreement that the Claimant should be medically retired was formed.[39]I heard evidence from the Claimant as to the state of his physical and mental health in the period between 19 April 2024 and 4 December 2024 as follows:a. Following his retirement in March 2024, he continued to undergo intensive medical treatment and was dealing with a relapse of his condition.b. He was unable to function coherently for many months and did not have the mental capacity to apply for any basic sickness benefits.c. The prolonged uncertainty over his employment (and consequently his financial situation) caused sustained psychological distress.d. He had to appeal the Respondent at every turn, and they were ignoring him.e. Following his retirement, he was at his lowest physical and mental ebb.f. The stress exacerbated his existing conditions, contributing to fatigue, insomnia and worsening his existing conditions.g. At this time, he lived on his own and had no support.h. His only assistance was a friend who would accompany him to hospital and help him wash.i. He was bed bound most of the time and could not walk far unaided.j. He was attending hospital 3 times a week and was a patient of 5 different consultants.k. He has bipolar disorder. From January 2024 he was suffering very badly from depression. The responses he was getting from the Respondent were exacerbating that. He felt like he was in a big fog for that year. He could not function.l. Whilst the Claimant had a mobile phone, he did not have the motivation to use it because of the depression he was suffering which was very low. His medication had to be increased.m. He did not have the wherewithal to find out what his legal rights were. He naïvely believed HR would take care of him, as they had in the past in relation to those other matters.n. One of the impacts of these matters is that his memory from 2018 onwards has disappeared.[40]When challenged by the Respondent’s Counsel as to how, given the state of his health, the Claimant was able between April and August to progress his appeal against the Respondent’s decision on holiday pay, the Claimant’s evidence was as follows:a. He would use his phone from his bed to chase matters up with the Respondent. He had got into a habit of that. These issues pre-dated his retirement, and he could deal with those because he had been complaining about them for so long.b. However, he did not have the mental or physical capacity to embark on anything other than the occasional monitoring of the existing appeals or complaints with the Respondent.c. The emails he was receiving during that time piqued his interest, but he was doing the best he could with the phone and the occasional moments of clarity he had.d. In relation to the meeting with Ms Tsang, he may have been able to attend that via Zoom. The medical evidence[41]The medical evidence provided by the Claimant (in the supplementary bundle unless otherwise stated), and which relates to the period between March and December 2024 shows the following:a. A letter dated 4 March 2024 from the Department of Colorectal surgery notes that the Claimant had a past medical history of bipolar disorder. The Claimant was discharged back to the GP, with a further surveillance review to follow in two years’ time.b. A letter dated 7 May 2024, from a Consultant Haematologist to the Claimant’s GP records a telephone consultation with the Claimant. There was a possibility the Claimant required long term anti-coagulation medication. Blood tests and an X-ray were required. It was agreed that the further blood tests would be reviewed before making a long-term anticoagulant plan.c. A letter dated 6 June 2024, from a Consultant Haematologist to the Claimant’s GP records a telephone consultation with the Claimant. There was a discussion about changing the Claimant’s medication. It recorded that the Claimant was being referred by the GP to a rheumatologist. The Claimant was to be seen in diagnostic haematology.d. A letter dated 3 July 2024, from a Consultant Haematologist to the Claimant’s GP records an in-person consultation with the Claimant. The Claimant was diagnosed with an indolent disease which would only need treatment in certain circumstances. The main symptom was joint pain, and the Claimant was due to see the Rheumatology team. The Claimant also reported feeling more fatigued than previously. A review was booked for 6 months’ time. This letter records that the Claimant was taking mirtazapine, which is an antidepressant medication.e. A letter dated 15 August 2024, from a Consultant Haematologist to the Claimant’s GP records that she held a telephone consultation with the Claimant on 15 August 2024 (page 57). She records that the Claimant had just retired from project management in construction and was loving life. He went to the gym five times a week, played golf and was doing reformer pilates. His breathing was much improved, and he was taking medication with no issues. It concludes stating that all in all he was doing well, and the next appointment would be in 6 months. The Claimant’s evidence is that this letter was then corrected by a subsequent letter. The letter referred to things he told the Consultant he wanted to do, not what he was doing.f. A letter dated 19 August 2024 from the Rheumatology clinic to the Claimant’s GP records an in-person consultation. The Claimant was diagnosed with likely generalised osteoarthritis following a referral for joint pain ongoing since 2022. It records the Claimant as being active – gym/pilates. This letter also records that the Claimant was taking mirtazapine.g. A letter dated 6 February 2025, from a consultant Haematologist to the Claimant’s GP records a telephone conversation (page 59). The letter notes that he was tolerating an increased dose of medication well. It also noted that the Claimant wanted the Haematologist to clarify that he was currently going to the gym once a week and playing golf once a month in the summer months and that was different to what was described in the last letter. The Claimant would be seen again in 6 months with a view to being discharged then. The Claimant’s evidence is that this was the correcting letter previously described. Observations on the evidence regarding the Claimant’s health[42]Aside from the reference to the past medical history of bipolar disorder (in the letter of March 2024), and the two letters which record that the Claimant was taking an antidepressant, none of the medical evidence records any further information about the Claimant’s mental health.[43]I cannot reconcile the Claimant’s evidence as to his physical and mental state at the time with the medical evidence provided. Whilst it is clear that the Claimant was suffering from a number of medical conditions during this period, there is very little description of their impact on the Claimant’s day-to-day life. What there is, for example, in the letters which describe the Claimant’s physical activities, is not consistent with the Claimant’s evidence that he was bed bound.[44]I have considered the Claimant’s explanation for the medical letter of 15 August 2024, which records him as loving life and lists certain physical activities the Claimant was performing. Even if that letter is wrong as to the extent of the Claimant’s physical activity, I am satisfied on the balance of probabilities that the Claimant was capable of some degree of exercise. This is because:a. the letter of 19 August, a few days later – also records the Claimant as being active in relation to the gym and pilates.b. the letter of 6 February, which the Claimant says corrects the position, refers to the Claimant playing golf in the summer – given the letter is written in February I consider it more likely than not that this letter is referring to Summer 2024, not some future summer.[45]I therefore find that, contrary to the Claimant’s evidence, the Claimant could exercise between August 2024 and December 2024.[46]As to the Claimant’s mental health, the medical evidence is limited to confirmation that the Claimant had bipolar disorder and that he was taking an anti-depressant. I accept that position. There is no medical evidence to support the Claimant’s evidence that his mental health was at its lowest ebb and that his medication needed to be increased.[47]I have considered the Claimant’s explanation that he was able to deal with the appeal against his holiday complaint only because it was a complaint that was already underway and the emails piqued his interest. However, I cannot accept the Claimant’s account that his depression was such that did not have the wherewithal to embark on anything new and simply could not function. This is because:a. The Claimant did continue to function – he emailed Mr Plant to initiate the appeal. He proactively chased Ms Tsang, and his evidence was that he could attend a meeting by Zoom.b. He was also able, via Mr King, to raise a complaint to the Councillor responsible for staff – which was a new avenue the Claimant pursued once his appeal was rejected. Relevant law Time limitsRelevant law
[48]I discussed the law set out below with the parties at the hearing.[49]Section 23 of the Employment Rights Act 1996 provides as follows: 23 Complaints to employment tribunals.(1) A worker may present a complaint to an employment tribunal – (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 (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.(3) Where a complaint is brought under this section in respect of – (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, 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. (3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2).(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.[50]Time limits are fundamental to the Tribunal’s jurisdiction. If a claim is presented outside of the time limit, the Tribunal has no jurisdiction to hear it, unless the Tribunal grants an extension of time. The burden is on the Claimant to prove that the presentation of the claim in time was not reasonably practicable.[51]The onus of proving that presentation in time was not reasonably practicable rests on the Claimant. That imposes a duty upon him to show precisely why it was that he did not present his complaint. (Porter v Bandridge Ltd [1978] ICR 943, CA).[52]The key legal principles relevant to the instant case are as follows:a. What is reasonably practicable is a question of fact, and thus a matter for the tribunal to decide (Wall’s Meat Co Ltd v Khan 1979 ICR 52, CA).b. The test should be given a liberal interpretation in favour of the employee (Lowri Beck Services Ltd v Brophy 2019 EWCA Civ. 2490, CA).c. The test the Tribunal needs to apply is not to simply look at what was possible, but to ask whether it was reasonable to expect that which was possible to have been done (Asda Stores v Kauser EAT 0165/07).d. Reasonably practicable carries the same sense as the words ‘reasonably feasible’. Factors which can make something not reasonably feasible include illness or mental illness (University Hospitals Bristol NHS Foundation Trust v Williams [2012] EAT 0291/12)e. If a person suffers from a debilitating illness, they may not be able to submit a claim in time. The test is one of practicability – what can be done – not whether it is reasonable not to do what can be done (Schultz v Esso Petroleum Co Ltd 1999 ICR 1202, CA).f. Stress, as opposed to illness or incapacity is unlikely to be sufficient reason for not presenting a claim in time (Asda Stores v Kauser EAT 0165/07).g. Generally, an Employment Tribunal will expect to see medical evidence if illness is the reason relied upon for extending the time limit. The EAT has stated that medical evidence is not essential but is desirable (Norbert Dentressangle Logistics Ltd v Hutton EATS 0011/13).h. In assessing whether ignorance of the law is reasonable, the correct test is not whether the claimant knew of their rights but whether they ought to have known of them (Porter v Bandridge Ltd 1978 ICR 943, CA).i. A person who is considering bringing a claim is expected to appraise themselves of the time limits that apply; it is their responsibility to do so (Cygnet Behavioural Health Ltd v Britton 2022 IRLR 906, EAT).j. Where a claimant has been able to do other things during the period between their dismissal and the expiry of the time limit, the tribunal should consider why their conditions prevented the claimant from finding out about the time limit and/or presenting the claim (Cygnet Behavioural Health Ltd v Britton 2022 IRLR 906, EAT).k. The existence of an impending internal appeal is not in itself sufficient to justify a finding that it was not reasonably practicable to present a complaint to the tribunal within the time limit (Palmer v Southend-on-Sea Borough Council [1984] ICR 372.[53]The test of what is a reasonable time thereafter requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in the circumstances for proceedings to be instituted, having regard to the strong public interest in claims being brought promptly and within a primary limitation period of three months (Cullinane v Balfour Beatty Engineering Services Ltd and anor EAT 0537/10). Discussion and conclusion[54]A debilitating illness can make the investigation as to legal rights and the bringing of a claim not reasonably feasible. As my findings of fact show, I accept the Claimant was unwell, both physically and mentally during this period of time. He was dealing with multiple diagnoses. No doubt that was challenging for him, and it was clear from the Claimant’s evidence that his perception of the Respondent’s purported stonewalling and intransigence exacerbated those challenges.[55]However, the medical evidence must support the Claimant’s illness and demonstrate why it prevented the Claimant from bringing the claim in time. The Claimant candidly accepted that his memory of matters from 2018 onwards had been affected by his ill health. As I have stated, the medical evidence shows the Claimant was managing multiple conditions. However, there is no medical evidence to support how the Claimant’s various conditions prevented the Claimant from finding out about the time limit or bringing the claim.[56]I must consider what could be done, not whether it was reasonable not to do what could be done. There is evidence that the Claimant was able, between April 2024 and December 2024, to continue to pursue an appeal against the Respondent’s decision not to pay the Claimant holiday pay for the Statutory Bank Holidays, and that he had as early as April 2024 indicated he would need to do so. On the Claimant’s own account, he would have been capable of attending a Zoom meeting about that with Ms Tsang. The Claimant’s ability to deal with these matters undermines his account of the severity of his depression at that time, and there is no medical evidence as to that before me.[57]There is also evidence that, from at least August 2024, the Claimant was performing some degree of exercise. Those matters, taken together, do not establish that the Claimant’s illnesses were so debilitating as to prevent him from engaging with his appeal and exercising, which required both cognitive and physical effort and ability.[58]I have considered the Claimant’s argument that the fact he was too ill to apply for sickness benefit demonstrates the extent of his incapacity, but I do not find that argument particularly persuasive. The Claimant by then had been medically retired on a pension. The fact that the Claimant did not do something does not demonstrate what could be done.[59]Whilst I recognise that the holiday pay complaint was a complaint with the Respondent that was already underway, and it was therefore perhaps easier to deal with, the substance of it is essentially the same as that which forms his claim for holiday pay before the Tribunal. Accordingly, the jump between ascertaining his legal rights in relation to that matter and bringing the claim was a relatively small one.[60]Further, there has been no evidence that I have been taken to during the hearing to suggest that he was still seeking a resolution of any complaint about his entitlement to sick pay after April 2024. Again, the jump to ascertaining his legal rights and bringing the claim was a small one.[61]As the Claimant accepts, all that was required to appraise himself of his legal rights was to look on the internet and contact ACAS who were able to direct him to the Tribunal.[62]I also acknowledge that the Claimant was trying to resolve matters internally, and his previous success at doing that left him with an impression that was the best way of dealing with things. But the existence of an impending appeal is not in itself sufficient to justify a finding that it was not reasonably practicable to present a complaint in time. In any event by August 2024 that process was exhausted, but the Claimant did not approach ACAS until November 2024.[63]For all those reasons, I do not consider it was not reasonably feasible for the Claimant to appraise himself of his legal rights between April 2024 and November 2024 and to bring the claim in time. It was possible to do so and reasonable to expect it to have been done.[64]I accept that the effect of it is that the Claimant’s claim is dismissed and he will not get the opportunity to pursue it further. I appreciate that this will leave the Claimant with a sense of injustice. But the law is clear, and it is my job to apply it. For the reasons I have given, I cannot find it was not reasonably practicable for these claims to have been presented in time.[65]Accordingly, I have no further discretion to exercise. The complaint must be dismissed. Approved by: