Mrs H M Pilling v Department for Work and Pensions: 2410289/2023
JUDGMENT
This has been a remote hearing which has been consented to by the parties. The form of remote hearing was by a video hearing through HMCTS Cloud Video Platform. A face-to-face hearing was not held because the relevant matters could be determined in a remote hearing. The Judgment of the Employment Tribunal is that:[1]The claimant’s complaints for the shortfall of her annual leave entitlement on overtime payments is out of time, pursuant to section 23 Employment Rights Act 1996 and regulation 30 Working Time Regulations 1998. It was not reasonably practicable for the claimant to bring these complaints within the 3-month statutory time limits although claim was presented outside such further period as the Tribunal determined was reasonable.[2]Consequently, the Employment Tribunal does not have jurisdiction to hear the complaints brought by the claimant on 3 October 2023 and proceedings are now dismissed. _____________________________________ Case Number: 2410289/2023 V 2REASONS
[1]This has been a remote hearing which has been consented to by the claimant and the respondent. The form of remote hearing was a video hearing through the HMCTS cloud video platform and all the participants, save as to the Judge, were not physically at the hearing centre.[2]Employment Judge Benson ordered this hearing. The purpose of the hearing was to consider the time limit questions set out in her case management summary of 26 February 2024.[3]At the outset of the hearing, I confirmed that all participants had access to, and had had time to go through, the Hearing Bundle, which consisted of 184 pages. This included the claimant’s statement, plus attachments, and the witness statement of Ms Fiona McNeil, the respondent’s Holiday Pay Implementation Lead. I read the statements in advance and considered the documents referred to therein. I heard from the claimant. I did not hear from Ms McNeil because I did not regard her evidence on time limits as particularly relevant. The claimant’s evidence was key.The law
[4]The time limits for claims of breach of contract, holiday pay and arrears of pay (i.e. a shortfall or non-payment of wages) are set out in the Employment Tribunals Case Number: 2410289/2023 V 2 Extension of Jurisdiction Order 1994, Regulation 30 Working Time Regulations 1998 and section 23 Employment Rights Act 1996 respectively. The legal tests are substantially thre same.[5]The complaint must normally be presented to the Employment Tribunal within 3 months of the non-payment, or within such further period as the Tribunal considers reasonable where it was not reasonably practical for the complaint to be presented within 3 months.[6]The Employment Tribunal’s discretionary power to extend time limit is subject to a two-part test: i. The Tribunal must be satisfied that it was not reasonably practical for the claim to be presented in time. ii. The Tribunal must be satisfied that the claim was presented within such further period as the Tribunal considers reasonable.[7]Reasonably practical does not mean reasonably or physically possible, but rather something like “reasonably feasible”: see Palmer v Southend on Sea BC [1984] ICR 372 CA. The determination of what is reasonably practical is a question of fact for the Tribunal (see Miller v Community Links Trust Limited UKEAT/0486/07. The burden of proof is on the claimant.[8]The recourse to Employment Tribunal proceedings is considered to be sufficiently well known that ignorance of the remedy and the appropriate time limits will not normally be accepted as an excuse (see for example Read in Partnership Ltd v Fraine UKAEAT/0520/10, John Lewis Partnership v Charmaine UKEAT/0079/11 and Walls Meat Co Ltd v Khan [1979] ICR 52.[9]The ACAS Early Conciliation period will extend time limits for the parties to attempt to resolve their differences without the need for Employment Tribunal proceedings: see s18A and s18B Employment Tribunals Act 1996 and the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014. However, as in this instance, where the conciliation period is outside the statutory time limit the extension of time for conciliation cannot be relied upon.Findings of fact
[10]The claimant was a longstanding employee of the respondent, latterly as an EO Caseworker (TDA). She managed a Team of 4 staff, so she was reasonably senior. She was employed from 28 November 1994 until 31 January 2023, when she took voluntary redundancy. The claimant’s claim was in respect of backdated holiday pay on overtime for the period December 2017 to 31 January 2023 (when she stopped being an employee).[11]The claimant’s last wages and work-related pay was made on 28 February 2023. This is the date when the payments claimed fell due, although I accept that the claimant did not know that she had a claim at this point. Case Number: 2410289/2023 V 3[12]The claimant needed to issue proceedings or apply for an ACAS Early Conciliation certificate by 27 May 2023, or her claim would on the face of it be out of time.[13]The claimant issued her Claim Form on 3 October 2023, which was after a period of ASAS Early Conciliation between 25 September 2023 and 2 October 2023. The claim was issued 4 months and 1 week outside the statutory time limit.[14]In evidence the claimant confirmed that she received her final payslip on 27 February 2023 [Hearing Bundle page 76]. Holiday pay was normally included in the payslip. She also said that she was aware of possible Employment Tribunal proceedings as a remedy available for any shortfall in her wages.[15]In her Claim Form the claimant said that she found out from a former colleague that the respondent was paying backdated holiday pay on overtime [HB17]. In evidence to the Tribunal the claimant said that she knew of this when she met former DWP colleagues for lunch during May 2023. The claimant could not remember the precise date, so it is not clear whether this was inside the 3-month time limit or just outside it.[16]The respondent contended that a number of the respondent’s former employees raised claims in May 2023, but the claimant said that she did not know that colleagues had raised potential claims. This is difficult to understand given that the claimant met colleagues that month.[17]Current employees of the respondent were paid their backdated holiday pay based on overtime on 30 June 2023. The claimant was aware of this at that time [see HB55].[18]The claimant first raised the issue of the non-payment of this money with her trade union, The PCS, the following week, on 4 July 2023 [HB17, HB55]. This was the date when the claimant said that she realised that she had a shortfall in the money due to her. I do not accept this, I determine that the claimant knew that she could be owed this money from May 2023, when she was advised by her former colleagues. I also determine that the claimant knew that she would not be paid the money she contended she was owed on 4 July 2023 when she raised this with the PCS [see HB55].[19]The claimant said that she was advised on 4 July 2023 that backdated holiday pay was only authorised to current employees in post on 31 March 2023, which was after the claimant had left work.[20]The claimant said that she took this up with a local senior manager from the respondent, Garry Smith, who I believe was also a PCS representative, on 18 July 2023. Mr Smith said that he would contact the respondent’s Human Resources representative. On 31 July 2023 the claimant said Mr Smith told her that they were still waiting to find out if ex-employees were going to be paid this money. I do not see any Case Number: 2410289/2023 V 4 doubt about the respondent’s position , but if there was any doubt on the claimant’s side then this was made clear to PCS on 11 August 2023 [HB120]; namely that the respondent did not intend to make payments to people no longer employed.[21]The claim said that she was not aware of some of her colleagues had raised a potential claim with the respondent in May and had issued proceeding in July and August 2023.[22]The claimant said that she only became aware of the strict Employment Tribunal’s time limits after she spoke to ACAS. She said that she undertook research about ACAS but not about time limits in the Employment Tribunal, I do not believe this. The PCS were supporting the claimant since 4 July 2023. I do not believe that a trade union would not know about Employment Tribunal time limits and/or advise the claimant of the need to issue proceedings urgently.[23]The PCS were dealing with the claimant’s case. The claimant said in evidence that both the PCS and Mr Smith told her to be patient. The claimant said that this was because the PCS were liaising with the respondent; however, the claimant’s case was also prima facie out of time at that point so I believe that this was a factor in attempting to resolve this matter outside Employment Tribunal proceedings.[24]The claimant said took this up with her trade union again on 14 September 2023 and was told that the respondents had decided that only employee still in place on 31 March 2023 would receive the money [HB17]. I do not accept this. The claim knew from 4 July 2023 at the latest that she had a potential claim against the respondent and that the respondent had paid the backdated holiday pay to erstwhile current employee but not ex-employee of the claimant’s tenure.[25]I determine that it was not reasonably practical for the claimant to issue proceedings within the appropriate time limit because I accept that she may not have known that she had a claim by 27 May 2023 or that she discovered this a very short time before the 3-month limitation period expired. However, the claimant knew by 4 July 2023 that she had such a claim, and she should have acted promptly. In such circumstances, it was important that the claimant did not delay further. Proceedings should have been issued at that point or shortly thereafter, certainly within 2 weeks. At this stage the cause of action arose over 4 months before and the claim was over 1 month outside the primary limitation.[26]In fact, the claimant referred the case to PCS and Mr Smith and delayed issuing proceedings while both sought to attempt to change the respondent’s position on the payments to former employees. Ultimately both were unsuccessful, and predicably so from the correspondence contained within the hearing bundle.[27]Unfortunately, the claimant held back too long, and another 2 months followed without any material progress. By the time the claimant issued proceedings she was 4 months and 1 week outside the primary limitation date, but more importantly, 2½ months or more beyond the further period that I determine was a reasonable additional time frame to issue proceedings for this claim. Case Number: 2410289/2023 V 5[28]So, I strike out the claim for breach of contract and/or holiday pay and/or arrears of pay because, whilst I do not consider that it was reasonably practical for the claimant to issue proceedings within the primary statutory time limit, I am not satisfied that she presented the claim within such further period as I consider reasonable.