Mr P Fisher v Westmorland and Furness Council and Cumberland Council: 2413651/2023
JUDGMENT
[1]The claim against the first respondent is dismissed following a withdrawal of that claim by the claimant.[2]It was reasonably practicable for the Claimant’s claim for unlawful deduction of wages to have been brought within the required time period and as it was not brought within the required time period the claim against the second respondent is dismissed.REASONS
[3]Oral judgment was given at the hearing on 28 June 2024. The claimant requested written reasons at the end of the hearing.[4]The claimant was employed by the respondent as an operations assistant from 1 September 2012 until he retired on 5 October 2023. The claimant presented a claim on 22 December 2023 for unauthorised deductions from wages in respect of unpaid wages during his period of sickness absence from September 2022 to 9 May 2023, and in particular in respect of his wages being reduced to nil from 22 March 2023.[5]In Section 15 of his claim form, the claimant says he is aware his claim was submitted out of time. The respondent in their grounds of response raise time limit issues. The claim was listed for a public preliminary hearing to consider time limit issues. The Issues for the Tribunal to decide[6]The issues to be determined were: 6.1 Was the unauthorised deductions from wages claim made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:6.1.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the date of payment of the wages from which the deduction was made?6.1.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the last one?6.1.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?6.1.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within such further period as the Tribunal considers reasonable?Evidence
[7]I considered the claim form and respondents’ grounds of response, the claimant’s bundle of evidence comprising 39 pages and the documents the claimant submitted with his response to the respondents’ Skeleton argument. The claimant gave sworn evidence during the hearing.Findings of Fact
[8]The claimant was employed by the respondent as an operations assistant from 1 September 2012 until he retired on 5 October 2023.[9]The claimant was absent from work due to sickness from September 2022 until 9 May 2023. He returned to work on 10 May 2023 at which time his period of nil pay ended. The claimant was informed by letter dated 28 February 2023 about the period of time for which he would be entitled to full pay and then half pay and that if he remained absent from work beyond 22 March 2023, that would be unpaid sickness absence.[10]The claimant was aware by the date of his return to work on 10 May 2023 that he could make a claim for unauthorised deductions of wages in respect of the wages and pension payments he considered had not been fully paid during his absence period. He was told by his union during his sickness absence that a three month time limit applied to such a claim, but at that stage, during his sickness absence, he was unsure when that time period ran from. After returning to work on 10 May 2023, the claimant began to collate all the relevant information he needed to quantify his claim. The claimant had done some online research about his claim and was aware he could find out information online but says he did limited research at that stage as he was going to seek advice from his union.[11]The relevant date for the last deduction from wages is 9 May 2023. The last date for submitting a claim to the Tribunal was 8 August 2023.[12]On 14 June 2023, the claimant submitted a case form to his union setting out details of his claim for lost pay and pension contributions. He had no response from his union so chased them up by email on 18 July 2023, saying he was on holiday for 6 weeks but would be contactable. The claimant did not receive a response further to that email, so he chased the union again by email dated 30 August 2023.[13]The union again did not respond, so the claimant chased them by telephone (although there is no record of the exact dates on which the telephone calls were made) and the union advised the claimant to fill in a further form which he did and posted back to the union on 6 November 2023. On 11 December 2023, the claimant’s union told him his claim was out of time. The claimant contacted ACAS on that date and on 13 December 2023 he obtained a certificate from ACAS. The claimant submitted his claim form on 22 December 2023.Law
[14]The right not to suffer an unauthorised deduction is contained in section 13(1) of the Employment Rights Act 1996 (ERA).[15]Section 23 ERA gives a worker the right to complain to an Employment Tribunal of an unauthorised deduction from wages.[16]Section 23 (2) provides 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. Section 23 (3) where a complaint is brought under this section in respect of—(a) a series of deductions or payments, the references in subsection (2) to the deduction is to the last deduction in the series.[17]Section 23 (4) provides 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.[18]I was referred by the respondent to case law including Times Newspapers Ltd v O’Regan 1977 IRLR 101 EAT, Asda Stoes Ltd V Kauser EAT 0165/07, Lowri v Beck Services Ltd v Brophy 2019 EWCA Civ 2490 CA and London Borough of Islington v Brown EAT 0155/08.Discussion and conclusions
[19]The claimant did not bring his claim within the initial 3 month period to do so which ended on 8 August 2023. He did not contact ACAS within that initial 3 month period so there was no extension to the time limit by reason of early conciliation.[20]The reason why the claimant did not contact ACAS or bring his claim within the three month time period is that he was relying on his union to respond to his claim query and to provide advice to him and take the claim forward.[21]The claimant knew of his right to bring a claim and that there was a 3 month time limit, prior to his return to work on 10 May 2023. The claimant, being aware of the 3 month time limit, on his return to work collated information to enable him to quantify his claim. He did some research about bringing a claim but, as he confirmed in evidence, he did only a limited amount of research as he intended to seek advice from his union. He then submitted his case form to his union on 14 June 2023. The claimant chased his union on one occasion within the initial 3 month time limit and did not take any action himself to obtain further advice or information elsewhere or to refer to ACAS or present his claim to the employment tribunal. The only explanation offered by the claimant for not taking any of these actions was that he was waiting for his union to respond to his case form and to advise and take matters forward on his behalf.[22]Whilst the union had not responded to the claimant’s case form submitted to them on 14 June 2023, the claimant himself took little action to follow up with the union (1 chaser email within the 3 month time limit) or do further research or take advice elsewhere in relation to his claim. He was aware there was a 3 month time limit and with that knowledge it would be expected he would take further action to ensure his claim was brought in time especially when he knew time limits were important, information is readily available online as to time limits and bringing claims and further, the claimant had already carried out some initial research in relation to his claim.[23]I find that it was reasonably practicable for the claimant’s claim for unlawful deduction from wages to have been brought within the required time period and as the claim was not brought within the relevant 3 month period the claim is dismissed. Employment Judge Fearon Date: 20 July 2024