Ms D Ogbebor v CareTech Community Services Ltd and Creative Support Ltd: 2401016/2025
JUDGMENT
[1]The claimant’s employment transferred to the second respondent by reason of a TUPE transfer on 19 August 2024.[2]The second respondent is joined as a respondent to these claims by means of Rule 35 Employment Tribunal Rules of Procedure 2024.[3]The claims against the first respondent are withdrawn by the claimant and are hereby dismissed.[4]The first respondent is ordered to provide documents and information to the claimant relevant to the claims by reason of Rule 33 Employment Tribunal Rules of Procedure 2024 by 21 January 2026, as set out below. A separate order will be served on the first respondent for these purposes.[5]The claimant’s union representative, Amanda Cunliffe, is ordered to attend the hearing on 24 March 2026 by video to give evidence relevant to the time limits for the claims by means of Rule 34 Employment Tribunal Rules of Procedure 2024. A separate order will be served on her for these purposes.[6]At the conclusion of the hearing, the Tribunal gave judgment that it was not reasonably practicable for the claimant’s complaints of unlawful deductions from wages in June and July 2024 to be presented to the Tribunal within the time limit in s23 Employment Rights Act 1996 and that they were presented within a reasonable period thereafter. However, on reflection after the hearing the Tribunal has reconsidered this decision on its own initiative (under rule 71 ET Rules of Procedure) and considers that evidence on the matter of the union’s involvement in the delay in approaching ACAS and advising the claimant on her claims needs to be considered first. As the claimant was unable to assist the Tribunal with any evidence as to the union’s actions, or reasons for the delay, at the next preliminary hearing the claimant’s trade union representative is to attend to give evidence on this subject.[7]The claimant’s other, earlier claims for unpaid wages and expenses are subject to further assessment by the Tribunal following the provision of information by the first respondent. The claimant should consider this information and then send it to the second respondent and the Tribunal no less than 21 days before the next hearing.[8]The claim form, the claimant’s further particulars, the first respondent’s response and this preliminary hearing judgment will be served on the second respondent. They will have 21 days from the date of service to submit a response to the claims.[9]Anyone affected by these case management orders may apply under Rule 30(3) Employment Tribunal Rules of Procedure 2024 to vary, suspend or set them aside, in particular where a party affected by these orders did not have a reasonable opportunity to make representations before they were made.[10]There is to be a further case management preliminary hearing in this matter on 24 March 2026, at 10am with a time estimate of 3 hours. Joining instructions will be sent to the parties shortly before the hearing.REASONS
[1]The claimant’s claims before the Tribunal are for unlawful deductions from wages. The purpose of this hearing was to clarify the claims, identify the correct respondent, and consider whether the claims were presented out of time to the Tribunal.[2]The Tribunal found it challenging during this hearing to clarify the claims and the issues around the time limits and the reasons for the delay. The claimant had clearly spent time trying to provide information and evidence to assist, as did her daughter, but key information remains unclear. Much of the evidence is in the form of partial and incomplete emails and text messages that it is difficult to follow. The claimant is clearly very upset about not receiving what she says she is owed, and this is at the forefront of her mind.[3]The claimant had withdrawn her complaint against the first respondent in correspondence before this hearing, and the first respondent’s representative had attended the hearing understanding that the first respondent would simply be dismissed from the proceedings. He therefore did not have any instructions in relation to the issues before the Tribunal. During an adjournment, he sought further information as requested by me but was largely unable to assist. Background information to the claims[4]The claimant was engaged by the first respondent as a flexi bank worker on 10 December 2020. In October 2022 the claimant became an employee contracted to work 24 hours per week. It was the claimant’s case that she regularly did overtime. On 6 December 2023 she moved back to being on a bank contract.[5]The claimant is paid monthly in arrears on or around the last day of the month, and any adjustments are made the following month. The claimant accepts that she was only paid for hours worked.[6]It is the first respondent’s case that the claimant was overpaid in May 2024. They say that she only worked 49.25 hours in May but was paid for 104 hours. This was an overpayment of £657, or 54.75 hours.[7]They recovered the alleged overpayment in June 2024 where although she worked for 104 hours, she was paid for 49.25 hours, as the first respondent had recovered the 54.75 hours overpayment from May 2024. In July 2024, the claimant was paid for 92.5 hours and in August 2024 she was paid for 89 hours.[8]It is the claimant’s case that she worked 106.15 hours in May 2024, which includes a 13-hour sleep shift and 8 hours of mandatory training. She has provided the Tribunal with a timesheet of her hours for that month. She also incurred expenses of £23 for transportation, which was a taxi used on the day a service user, LT, died. She has provided the tribunal with a taxi receipt and says this was never paid to her. She says that she was underpaid her May wages in her June 2024 payment.[9]The claimant says that she worked 117.35 hours in June 2024 and did not receive full payment for these hours in her July wages. She has provided the Tribunal with her timesheet for this month.[10]The claimant’s employment transferred to the second respondent by way of a TUPE transfer on 19 August 2024. The Tribunal has seen a letter from the second respondent to the claimant and other employees of the first respondent from June 2024 accepting that there was a TUPE transfer and confirming that employees would transfer from the first respondent to the second respondent on their existing terms and conditions.[11]The claimant continued to chase the first respondent for the underpayment of her wages in August, September and October 2024. In a message from the first respondent she appears to be assured that the discrepancy in her wages would be sorted out in September 2024. The claimant waited until the September payroll but was not paid. She contacted the first respondent again in early October 2024 but was then told that her employment had transferred to the second respondent and all money owed to her had been paid. Her evidence was that when she contacted the second respondent they told her that the debt belonged to the first respondent.[12]The claimant contacted her union, Unison, who supported her, and efforts appear to have been made by Unison, the claimant and her daughter to try to resolve the issue. In January 2025, Unison approached ACAS on behalf of the claimant to start early conciliation which continued until 7 March 2025. The conciliation was unsuccessful and the claimant issued a claim form on 24 March 2025. The claim form said that she was claiming wages of “£1589” but provided no other information.[13]In subsequent letters to the Tribunal and in her witness statement the claimant also now says that she is owed other sums of money, which are:a. £500 bonus for referring an employee, Ms Yaradua, to the first respondent on 19 August 2022;b. Wages for a further 8 hours of face-to-face training and 66 hours of online training, on dates which the claimant cannot recall but says they will be in her online training record;c. Taxi expenses from December 2023 when the claimant was asked to work at Wigan hospital at short notice and without transportation. Natasha Stuart, a manager at the first respondent, asked her to take a taxi but the claimant was never reimbursed. Time Limits[14]Are the claims for wages from June and July 2024 out of time? The earlier wages claims were not in the original claim form and will require an application to amend the claims to add them to the existing claim. This can be considered at the next hearing.[15]As set out above, the last date in the series of deductions from the claimant’s wages was 31 July 2024, which was her pay date for wages for June 2024. There was a series of deductions in June (for May) and July (for June) 2024. The claimant should have approached ACAS to start early conciliation by the 30 October 2024 for these payments, and she then needed to send her claim form to the Tribunal no more than a month later, so by 30 November 2024. She did not approach ACAS until 24 January 2025, so was almost three months late. She did not lodge her claim form until 24 March 2025, so this was almost five months late. The test the Tribunal must consider is - was it not reasonably practicable for her to have started ACAS conciliation in time? If it was not, did she submit her claim within a reasonable time afterwards?[16]“Not reasonably practicable” means “not reasonably feasible”. The Tribunal will consider further evidence at the next hearing as to whether the claimant could feasibly have started her claims earlier. The claimant has provided evidence that in September 2024 she understood that the first respondent had agreed to pay her what she said she was owed in unpaid wages from earlier in the year. She had been repeatedly emailing the first respondent since approximately June 2024 and emailed again on 3 September 2024 to set out to Michelle Woodcock of the first respondent that she was owed wages from 5 and 11 June 2024, the referral from 2022 and the taxi costs from June 2024.[17]Ms Woodcock wrote to the claimant on 4 September 2024 to say “I have escalated payment for hours as detailed upon your timesheet that you have provided.” She waited for payment of her remaining wages and expenses in the September 2024 payroll. She was clearly dismayed when that did not happen and spent some weeks chasing for payment. For example, on 2 October 2024 she wrote to Ms Woodcock “You promised me that they will pay. I waited patiently till the end of the month and today is October 2nd they have still not paid me till now.”[18]Ms Woodcock emailed on 3 October 2024 to say that the claimant was in fact not owed any money and directed her to the second respondent, who was her employer at that time.[19]She then wrote again on 24 October 2024 “Please I am writing to know the state of the money Caretech is owing me which they emailed me that Creative Support will pay me (email attached below)….”[20]The claimant continued to email in October. In her witness statement for this hearing, she says that the second respondent said that the debt belongs to the first respondent. As there appears to be reliable evidence to show there was a TUPE transfer (and the claimant and the first respondent agree there was), this is incorrect by reason of the TUPE Regulations 2006 – any such debt incurred prior to the transfer is payable by the transferee after the transfer.[21]I have explained to the claimant that there is a strict time limit for claiming amounts for unpaid wages in the Employment Tribunal, which is 3 months from the date on which the money should have been received. All of the claimant’s claims for payment were brought outside the three-month time limit.[22]The claimant appears from the evidence before the Tribunal to have contacted Unison on 2 and 3 September 2024, when she sent her membership number to Phil Powell. She was contacted again by Amanda Cunliffe of Unison in early October 2024. The Tribunal has no information about what Unison did or did not do between September/October 2024 and early 2025 and the claimant told me that she did not know what they did, and they did not give her any information during that period.[23]Indeed, the claimant says that she handed over matters entirely to Unison to negotiate on her behalf and they provided her with no information about the time limit or what was happening with her claim until she understood that ACAS early conciliation had begun on 24 January 2025. Decision on time limits reconsidered of the Tribunal’s own volition[24]After the hearing, when I was considering the evidence of the claimant, it became clear that in the interests of justice and a fair hearing it would be necessary to hear evidence from the claimant’s Unison representative, Alison Cunliffe, as to what happened in that period from September 2024 until March 2025 when conciliation ended and the claimant was told to submit a claim form to the Tribunal.[25]If the claimant has received incomplete, incorrect or misleading information and advice from her professional advisors, she is held to that, and time limits will not be extended to compensate for that. In this case, her claim for compensation would possibly be with the union for negligence or incomplete advice and her claim would not continue against the second respondent.[26]However, the union needs to be given the opportunity to explain what happened between October 2024 and March 2025. What was the claimant told? As there had been a TUPE transfer, why did the union not start proceedings against both respondents, or advise the claimant to? Why was there no information provided to the claimant about the three-month time limit for wages claims? Why did it take so long to start ACAS early conciliation? The opportunity for the union to answer these questions will be provided at the next hearing, after which a decision will be taken about whether it was not reasonably practicable for her to have brought her claims in time.[27]I have therefore decided to reconsider the decision that it was not reasonably practicable for the claimant’s complaints of unlawful deductions from wages in June and July 2024 to be presented to the Tribunal within the time limit in s23 Employment Rights Act 1996 and that they were presented within a reasonable period thereafter.[28]Evidence on the matter of the union’s involvement in the delay in approaching ACAS and advising the claimant on her claims needs to be considered first. As the claimant was unable to assist the Tribunal with any evidence as to the union’s actions, or reasons for the delay, at the next preliminary hearing the claimant’s trade union representative is to attend to give evidence on this subject. The claimant’s other money claims from before May 2024[29]I have not considered any of the new claims for money from before May 2024 as set out above, as further evidence and information is required to find out when the claimant could have expected to receive these amounts of money. However, all of them appear to be a long time ago and certainly far longer than 3 months ago. It may be that as part of her application to amend her claims, the claimant will struggle to persuade a Tribunal that it was “not reasonably practicable” for her to have brought claims for this money within 3 months of the date of non-payment, as is required for the Tribunal to extend time.[30]The claimant is concerned about making a fuss with her current employer. She expressed concern that she might not be offered any more shifts. She does not want to have to bring the second respondent to the Tribunal, however because of the way TUPE works, to be paid the money she says she is owed from when she worked for the first respondent, she needs to claim against the first respondent. She does not have a choice in this matter. I am stating the claimant’s wishes not to be in a dispute with the second respondent here for the record. Claim withdrawn against the first respondent[31]The claimant accepts that the money she says she is owed is payable by the second respondent as a result of the TUPE transfer. She wishes to withdraw her claim against the first respondent, and I have recorded that she has done so.[32]It would appear from the information before me to be the case that the second respondent is the correct respondent in these proceedings. I have therefore joined them to the claim as a second respondent. The claim will continue against them as the only respondent. If they think I am wrong about this, they are able to ask that I reconsider this decision. Order to provide documents and information (rule 33)[33]The first respondent may have access to documents and information that are required to assist the Tribunal in deciding whether the claimant is owed money, and when any such underpayment happened. I have therefore made a separate order against the first respondent to provide documents and information. Witness Order to give evidence at CVP hearing (Rule 34)[34]I have made a separate order requiring Ms Cunliffe of Unison to attend the next hearing to give evidence. The claimant is to provide her with the link to join the next hearing and any joining instructions that are sent with it. Approved by