Mr J Urban v Dar-Pol Recruitment Agency Ltd: 2413166/2023
JUDGMENT
[1]The claimant's application to amend his claim to include the following claims:(1) Holiday pay of £384.89;(2) £706 for an unlawful deduction of wages, described as “theft of £1 for every hour worked off the books”; and(3) £220 for “being cheated out of worked hours”, is not well-founded and fails.[2]There are no remaining claims for the Employment Tribunal to consider because the claimant confirmed at a case management hearing on 5 September 2024 that these were the claims he wished to bring. Case No. 2413166/2023 2[3]Accordingly, given the application to amend was refused and there are no remaining claims which the Tribunal has jurisdiction to consider, the claim is struck out.REASONS
[1]This was a hearing to consider the claimant's application to amend his claim and if he was permitted to amend , to hear his claims.The Facts
[2]The claimant worked for the respondent from 28 October 2022 to 30 November 2023. He presented a claim to the Employment Tribunal on 15 December 2023. The claimant ticked the box on the claim form for “other payments” and the box “I am making another type of claim which the Employment Tribunal can deal with”. He did not tick the box for holiday pay or arrears of pay. The claimant stated, “the employer did not pay my national insurance number and tax. I was employed Case No. 2413166/2023 2 illegally. I have a payslip with NIN and tax collected. I do not have an NIN number”. At box 8.2 the claimant made generalised complaints about illegal activities of the respondent. He made generalised complaints about breaches of his personal data and that the respondent was unfairly exploiting employees and violating labour and tax laws.[3]The Respondent denied all the claims and made serious allegations about the actions of the claimant.[4]Both the claimant and the respondent sent extensive correspondence to the Tribunal.[5]There were some attempts to try to clarify the claimant's claim. On 12 June Employment Judge Cookson wrote to the parties: “Employment Judge Cookson has considered some 45 documents and emails sent to the Tribunal since 15 May 2024 by both sides, the vast majority of this is correspondence emails between the parties copied to the Tribunal. It is not apparent if either party is making an application for something, and if so, what. This is not acceptable. The parties cannot reasonably expect a Judge to trawl through numerous pages trying to work out why they are being sent to the Tribunal. None of the documents will be considered further by an Employment Judge.”[6]Employment Judge Cookson then made directions ordering the claimant to send the respondent a document setting out what sums they say they are entitled to and how that has been calculated.[7]The case was listed for hearing on 5 September 2024.[8]At the outset of the that hearing before me it became clear that the claimant (based on the document he supplied to the Employment Tribunal, in a statement sent to the Tribunal on 12 June 2024 in response to Employment Judge Cookson’s order) was claiming:(1) £384.49 for accrued vacation days.(2) “Theft of one hour for every hour worked ‘off the books’ illegally”, which the claimant clarified amounted to £706; and(3) £220 the claimant says he was “cheated out of work hours”.[9]The claimant confirmed that he was not pursuing any other claim.[10]I made further directions and listed the case for hearing. I identified at paragraph 16: “As the claimant did not tick the box for a claim for holiday pay or arrears of pay the next hearing will start with considering whether the claimant can be Case No. 2413166/2023 3 allowed to amend his claim to include these claims and any objection by the respondent.”[11]I stated that if he was permitted to amend the claimant would then consider his claims. Application to Amend – The Law[12]The Tribunal has a broad discretion to allow amendments under rule 29 Employment Tribunal Rules of Procedure 2013. However, the discretion must be exercised in accordance with the overriding objective in rule 2 of the Employment Tribunal Rules of Procedure.[13]I have taken into account the Presidential Guidance on amendments to claims and the well-known legal principles in the case of Selkent Bus Company Limited v Moore [1996] ICR 836. I have reminded myself that I am balancing the injustice and hardship to the claimant in refusing the amendment against the injustice and hardship to the respondent of permitting the amendment. I have taken into account the relevant factors, including the nature of the amendment, the timing and manner of the application and the applicability of time limits and any other relevant factors.[14]I have also considered whether the amendment can be simply considered a relabelling exercise based on existing facts. I am not satisfied that is the case here. The claimant was complaining about the respondent not paying his tax and national insurance in his original claim. That cannot be a claim for unlawful deduction from wages. Concerns about such matters should be raised with the appropriate authority, which is not the Employment Tribunal.[15]It was only when the Tribunal confirmed to the claimant it could only hear a claim for unlawful deductions from his wages that his claim was identified in the 12th of June statement as a holiday pay and failure to pay wages.Conclusion
[16]The claimant is a litigant in person. However, he is an intelligent man who knew enough to present his claim form soon after his employment ended. He has access to the internet. The claimant's claim form did not contain a narrative stating that the claimant was claiming holiday pay or arrears of wages. The allegations in his claim form appeared to relate to serious generalised concerns about the way the respondent operated, allegedly illegally. The claimant's main complaint seemed to be in relation to the way the respondent had dealt with tax and national insurance, although it was very unclear.[17]There are many agencies which can deal with the concerns raised by the claimant including HMRC and the Police.[18]The respondent says the claimant had access to payslips during his employment and they were sent via email and that the respondent used payroll software called “Quick Book”. Case No. 2413166/2023 4[19]In his claim form the claimant confirmed, “I personally received a payslip” although he went on to make allegations saying although his payslip had details such as a national insurance number, he did not possess a national insurance number and that was a breach of his personal data. In other correspondence to the Tribunal the claimant confirmed that he had had access to payslips, certainly by 19 February 2024.[20]I turn first to consider the nature of the amendment.[21]The nature of the amendment is confusing. It is very difficult to understand the basis of the calculation of the claim for holiday pay and the basis or how the claimant says there has been theft of £1 for each hour worked “off the books” or what the claim of £220 for being “cheated out of work hours” actually is.[22]I turn to the issue of the timing of the application to amend. The claim was presented in December 2023. The parties wrote extensive correspondence to the Tribunal, but it was wholly unclear what the claim was. It was only when Employment Judge Cookson wrote to the parties on 12 June 2024 requiring a statement about the sums sought that the claimant set out in a statement some clearer information about what he was claiming. It was only at the hearing on 5 September 2024 that the nature of the claims that the claimant wanted to bring became clearer.[23]I reminded myself that the claimant had not ticked the box for holiday pay and had not ticked the box for unlawful deduction from wages on the claim form. If the claimant thought he had a claim for holiday pay and unpaid wages, he must have realised that his payslips during employment were not reflective of the holiday pay and payments to which he was entitled. Even if I am wrong about that and he did not realise until the respondent provided him with further pay information on 19 February 2024, he must have been aware at that point that he wanted to bring a claim for any underpayment or holiday pay. The correspondence he sent ,which was extensive, was unclear.[24]I turn to the issue of time limits. Time limits are strictly applied in the Employment Tribunal. For a claim in relation to non payment of wages, a claim should be made normally within 90 days of the last payment made to the claimant. A claim for holiday pay should be made within 90 days of termination of employment. The claimant’s employment ended on 30 November 2023. The primary time limit expired on 29 February 2024.He went to ACAS on 13 December and the certificate was issued on 15 December. Accordingly under S.207B(3) Employment Rights Act 1996 (ERA) the clock is stopped on the day ACAS received the request, 13 December and starts again the day after the certificate was issued on 15 December. Therefore the claimant gained an extra 2 days to present his claim, until 3 March 2024. However there was no clarification of the claimant's claim for holiday pay until 12 June 2024 at the very earliest, and in reality not until the hearing in September. That was considerably outside the time limit.[25]Likewise the limitation period for unlawful deduction from wages is within 90 days from when the final payment was made which appears to be 5 December 2023 based on the payslips. The primary limitation therefore expired on 4 March plus the Case No. 2413166/2023 5 extra 2 days for going to ACAS under the stop the clock provisions. As with the holiday pay, there was no indication of this until claim 12 June and it was not properly identified until 5 September 2024.[26]There is no clear explanation from the claimant as to why he did not tick the box on the original claim form for holiday pay and non payment of wages.[27]I turned to consider the balance of injustice and hardship between the parties. Reading the claim form and the response it is clear that there is a great deal of bad blood and bad feeling between the parties and a lot of issues the claimant wishes to raise which are not claims the Tribunal has jurisdiction to consider. Indeed, the Regional Employment Judge wrote to the claimant on 21 April 2024 reminding him that all communications with the Tribunal must be copied to the other side, that his email did not make it clear what he wanted the Tribunal to do and that the matters he raised could be reported to the police if he wished. The Regional Employment Judge made it clear no actions would be taken by the Tribunal and reminded the claimant the case was listed for hearing on 5 September 2024.[28]At this point I step back to consider the balance of injustice and hardship to the parties in permitting or denying the amendment. These claims for amendment claim were presented very considerably out of time. I am not satisfied there is any reason why the claims could not have been presented within the time limit. The claimant's multiple grievances against the respondent are not matters which the Tribunal has jurisdiction to consider, and they should be taken up with the appropriate authorities elsewhere.[29]There is hardship in not permitting the claimant to amend his claim. However, if I permit the amendment there is considerable hardship to the respondent having to defend a claim which it disputes and which remains very confusing from an evidential point of view.[30]It is clear from the voluminous correspondence and the further unsolicited statement the claimant has sent to the Tribunal (not ordered by the Tribunal) on 23 September 2024 that the basis of the claimant’s claims remain unclear.[31]Having taken all of these factors into account, the application to amend is refused.[32]Given that the claimant confirmed at the hearing on 5 September 2024 that there were no other claims remaining, the Tribunal has no jurisdiction to hear the case because the amendment has been disallowed and there are no remaining claims. Accordingly, the claim is struck out. Case No. 2413166/2023 6