Regional Employment Judge FraneyWritten submissions only for claimantWritten submissions only for respondentDate 30 April 2021
JUDGMENT
The respondent’s application for a costs order against the claimant fails and is dismissed.
REASONS
[1]At a preliminary hearing on 29 April 2021 I dismissed the two complaints brought by the claimant.[2]The first was a complaint of detriment contrary to regulation 2 of the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015. That complaint was struck out because it had no reasonable prospect of success.[3]The second complaint was a complaint of unlawful deductions from pay contrary to Part II Employment Rights Act 1996. That complaint was dismissed because it had been brought outside the applicable time period when it was reasonably practicable for it to have been brought within time.[4]My Judgment was subsequently issued in writing, with written reasons, on 6 May 2021. I will assume that the person reading this Judgment and Reasons has already read that earlier Judgment.[5]As envisaged at the end of the hearing, the respondent made an application for costs by a letter of 25 May 2021. The total amount sought was £5,382.00 plus VAT. That represented the costs for the whole case. In the alternative, the respondent sought an order for costs incurred since a costs warning letter of 9 March 2021 in the sum of £3,648 plus VAT. The costs application was accompanied by a breakdown of how those costs had been incurred, and an indexed bundle of documents running to 53 pages. Included in that bundle were extensive “without prejudice” email exchanges between the parties.[6]The claimant provided his response to the costs application on 8 June 2021. His objection to the application ran to 11 pages. He also provided a bundle of documents in support of his position which ran to 83 pages.[7]Both sides agreed that this matter could be determined on the papers without a further costs hearing, and I was content that that was a fair way to proceed. I considered the matter in chambers on 2 July 2021. I read the written material provided by both sides and made the decision set out above. My reasons were as follows. Relevant Legal Framework[8]The power to award costs is contained in the 2013 Rules of Procedure. The definition of costs appears in rule 74(1) and includes fees, charges, disbursements or expenses incurred by or on behalf of the receiving party.[9]Rule 75(1) provides that a Costs Order includes an order that a party makes a payment to another party “in respect of the costs that the receiving party has incurred while legally represented”.[10]The circumstances in which a Costs Order may be made are set out in rule 76. The relevant provision here was rule 76(1) which provides as follows: “A Tribunal may make a Costs Order or a Preparation Time Order and shall consider whether to do so where it considers that(a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) of the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.”[11]The procedure by which the costs application should be considered is set out in rule 77 and the amount which the Tribunal may award is governed by rule 78.[12]Rule 84 concerns ability to pay and reads as follows: “In deciding whether to make a costs, preparation time or wasted costs order and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made the representative’s) ability to pay.”[13]It follows from these rules as to costs that the Tribunal must go through a three stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and if so, the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage.[14]The case law on the costs powers (and their predecessors in the 2004 Rules of Procedure) include confirmation that the award of costs is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82.[15]A well-argued warning letter offering settlement can provide a basis for an order for costs if the recipient has unreasonably failed to engage properly with the points raised: Peat v Birmingham City Council UKEAT/0503/1. It is a relevant factor even though the “Calderbank” rule applicable in civil proceedings does not apply in Employment Tribunal proceedings: Kopel v Safeway Stores PLC [2003] IRLR 753.[16]In Vaughan v London Borough of Lewisham & Others (No. 2) [2013] IRLR 713 the Employment Appeal Tribunal endorsed earlier comments in AQ Ltd v Holden [2012] IRLR 648 to the effect that a litigant in person must not be judged by the standards of a professional representative. Discussion and Conclusions Self-Direction
Discussion and Conclusions
[17]The first stage in considering any costs application is to decide whether the power to award costs has arisen. The issue in this case was whether there had been unreasonable or vexatious conduct by the claimant.[18]In assessing whether the claimant behaved unreasonably I took into account the fact that he represented himself throughout these proceedings and did not have access to any legal advice. That, of course, does not make him immune from a costs order if his conduct of the proceedings was nevertheless unreasonable or vexatious.[19]I also took into account the broad general principle that an award of costs in the Employment Tribunal is the exception rather than the rule, but where proceedings are conducted unreasonably or vexatiously, and costs incurred as a consequence, it can be in accordance with the overriding objective in rule 2 to make a costs award.[20]I also reminded myself that it was important not to judge the position by hindsight alone. It became clear on 29 April 2021 that neither of the two complaints pursued could go any further, but that does not mean that an order for costs should inevitably follow.[21]Against that background I considered the points made by the respondent in the costs application. Broadly two themes emerged from that application. The first was that the claimant had acted unreasonably in pursuing his claim despite the legal difficulties it faced, particularly after a costs warning letter of 9 March 2021 which explained why the claim was legally unsustainable. The second was that the claimant’s conduct of “without prejudice” negotiations, and his expectations in relation to settlement, had been unreasonable and/or showed that he had pursued the proceedings in a vexatious way. Unreasonable pursuit of the case[22]The respondent made some points about the way in which the case had been pursued by the claimant which I did not consider amounted to unreasonable conduct. They included his attempt to strike out the response, which was rejected at the preliminary hearing before Employment Judge Benson on 20 January 2021, and his allegations of some form of “campaign” on the part of the respondent. Unsuccessful applications, and exaggerated allegations of impropriety, are frequently encountered in Employment Tribunal cases where unrepresented parties feel strongly about the way they have been treated, and where they do not have a sound understanding of the pragmatic realities of Employment Tribunal procedures.[23]The core element of this first theme, however, was that it was unreasonable for the claimant to pursue his claim at all because it was legally unsustainable on the zero hours point. In November 2020 the respondent asked the claimant to clarify exactly what his case was, and the response of 24 November 2020 made some assertions about the legal position which subsequently proved to be mistaken. The legal difficulty with the claim was discussed by Employment Judge Benson at the preliminary hearing on 20 January 2021, resulting in the listing of the public preliminary hearing on 29 April 2021.[24]The respondent places particular emphasis on its costs warning letter of 9 March 2021. A failure properly to engage with a costs warning letter can be a factor relevant to the question of unreasonable conduct, even though there is no strict rule in Employment Tribunals that costs must follow if the warning letter proves to be well-founded.[25]The costs warning letter of 9 March 2021 was in exemplary terms. It encouraged the claimant to take independent legal advice. It accurately predicted the “fundamental flaw” that the claimant had not breached his contract by obtaining secondary employment, the very point which (without having seen the costs warning letter) I described as the “core problem” in paragraph 25 of my earlier Judgment. The costs warning letter also correctly asserted that the unlawful deductions complaint had been brought out of time, and that if both substantive claims were dismissed the complaint about a failure to provide written particulars of employment would also fail. The claimant was warned that the costs to date were approximately £1,800 plus VAT but would be considerably higher by the time of the next hearing. It said that if the claimant agreed to withdraw it was very likely that the respondent would agree not to pursue any costs application.[26]With hindsight it is plain that the claimant should have accepted that proposal. It was an accurate prediction of what was going to happen at the public preliminary hearing.[27]Even so, I do not consider that the claimant acted unreasonably in pursuing his case up to receipt of that costs warning letter. The legislation is complicated and rarely encountered, even for employment lawyers. Further, he made a mistake about time limits in relation to the unlawful deductions complaint which was a reasonable one for him to make (see paragraph 42 of my earlier Judgment and Reasons).[28]The strongest argument on behalf of the respondent was that the position was made clear to the claimant in the costs warning letter, and that he acted unreasonably in not accepting the legal analysis and withdrawing his claims. Had the claimant been represented by an employment lawyer and taken the same course of action I would have considered that unreasonable. However, given his status as a litigant in person I consider that he acted reasonably in still pursuing his complaints to the preliminary hearing despite the terms of the costs warning letter. I have reached this conclusion taking into account the following factors:(a) He was a litigant in person with no specialist knowledge or understanding of employment law;(b) the zero hours provisions are complicated and rarely encountered;(c) whether his two complaints were viable was going to be decided at a preliminary hearing. This was not a case where the matter was going to continue to a lengthy final hearing if he did not withdraw;(d) it was not unreasonable for him to view with some scepticism what was being put to him by the respondent’s solicitor given his feelings of mistrust for his employer arising out of his perception of how he had been treated, and(e) it cannot be said that the this was a case in which the claimant refused to engage with the costs warning letter. He engaged fully with it and responded in some detail on 16 March 2021.[29]In summary, therefore, despite the legal flaws in his claims it was not unreasonable in my judgment for the claimant to continue to pursue his case to the preliminary hearing, despite the terms of the costs warning letter. Settlement Negotiations[30]In the costs application the respondent has provided a clear and comprehensive account of the course which settlement discussions took. It says that the claimant acted unreasonably, and that the figures he was seeking were so excessive as to show that he was behaving vexatiously.[31]I have read the relevant “without prejudice” correspondence. I have taken into account the points that had already been made to him in the costs warning letter of 9 March 2021 about the lack of merit in his zero hours claim and the time limit problem affecting his unlawful deductions complaint.[32]In broad terms the respondent made an offer on 16 March 2021 to settle for the sum of £229.86, the amount of the alleged unlawful deduction, and after further exchanges the claimant made a proposal for settlement in the sum of £18,609.09. There were further discussions through ACAS during which the claimant reduced his proposal to £12,000 and then to £6,176.22. The respondent had increased its offer to £750, pointing out that a proper quantification of the claims, if they were wellfounded, was only £1,500.[33]I have also considered the attempt made by the respondent after the preliminary hearing before me to resolve the costs issue by agreement.[34]I consider that once again the conduct of the respondent’s solicitor in seeking to resolve this matter has been exemplary. There has been a commendable attempt to explain the position to the claimant and to seek a resolution on a “without prejudice” basis in a case which the respondent, rightly, regarded as not wellfounded. However, the question for me is not whether the respondent behaved reasonably in seeking to settle the matter, but whether the claimant's conduct of those negotiations was sufficient to amount to unreasonable or vexatious conduct justifying a costs award.[35]In my judgment the claimant did not act unreasonably within the meaning of rule 76(1)(a) so as to mean that the power to award costs has arisen. Although there was a great disparity between his figures and the respondent’s proposals, that is of course not unusual in litigation. Importantly, however, the claimant's proposals were based on a suggestion that the terms of settlement include terms upon which his employment should come to an end, primarily by way of redundancy. Although the respondent rightly observes that the termination of employment was no part of the litigation, the claimant's view that it could still be discussed and form part of resolution was a reasonable one given his views about how he had been treated and his concerns about what might happen in future. Accordingly, although his proposals for compensation significantly exceeded the amount which the Tribunal might have awarded had his claim succeeded, he was negotiating on a wider basis that this Employment Tribunal litigation alone.[36]Further, this was not a situation where the claimant failed to engage with settlement discussions. He engaged fully with them and made a number of proposals in which he moved considerably in what he was prepared to accept in return for withdrawing his claim.[37]Taking this into account, and his status as an unrepresented litigant unfamiliar with this area of law, I do not consider that he acted unreasonably in the conduct of the negotiations.[38]Nor do I consider that his approach to settlement evidences that the claim was pursued vexatiously. The claimant was doing his best to put a value on his claims, taking into account the wider possibility of an agreement encompassing termination of employment.[39]For those reasons I concluded that the power to award costs had not arisen. My decision would have been different had the claimant been legally represented. The rejection of this costs application should not be seen in any way as a criticism of the approach that the respondent’s solicitor has taken, which in my view has been exemplary.[40]That means that it is not necessary for me to consider the two further questions of whether to make a costs order, and if so in what amount. However, I would observe that the amount to be awarded, if an award were appropriate, might well have been considerably less than sought by the respondent, even given the alternative amount restricted to the period after the costs warning letter, because the information I have about the claimant’s ability to pay indicates that his income has been very limited indeed over the last 15 months or so, making any substantial costs award very unlikely.
Introduction
[1]Following a case management hearing in private before Employment Judge Benson on 20 January 2021, this public preliminary hearing was listed to determine two matters.[2]The first was whether the complaint of detriment under regulation 2 of the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (“the Zero Hours Regulations”) should be struck out on the grounds that it had no reasonable prospects of success. I will call this the “zero hours issue”.[3]The second was whether the complaint of unlawful deductions from pay could proceed given that the claim form was presented outside the period of three months from the date of the alleged unauthorised deduction. I will call this the “time limit issue”. Summary of the Proceedings[4]Having undergone early conciliation between 17 August and 17 September 2020, the claimant presented his claim form on 15 October 2020. He had been employed as a Customer Care Agent by the respondent since 2007. His claim form said that he was on a zero hours contract with a clause which prevented him working for other employers, and that this had prevented him from obtaining other employment whilst furloughed under the Coronavirus Job Retention Scheme from the spring of 2020. He alleged that his furlough pay on 10 May 2020 was too low, the shortfall being £229.86. He had pursued a grievance but the respondent had not allowed him to do so.[5]The respondent initially filed a holding response because the internal proceedings were ongoing, but subsequently amended grounds of resistance were provided on 19 January 2021. They asserted that the unlawful deductions complaint was out of time, but that in any event the furlough payment had been correctly calculated. It was also denied that there was any exclusivity clause in the contract, but the response suggested in any event that the zero hours detriment complaint had no reasonable prospect of success.[6]The complaints and issues were clarified by Employment Judge Benson at the preliminary hearing on 20 January 2021. The substantive complaints were of unlawful deductions from pay in relation to the payment on 10 May 2020, and of detriment contrary to regulation 2 of the Zero Hours Regulations. If either claim succeeded the claimant would also seek an award of four weeks’ pay for failure to provide a written statement of the main terms of his employment, and he sought an uplift to any compensation awarded on the basis of an unreasonable failure to follow the ACAS Code of Practice in relation to grievance procedures.[7]The claimant was required to supply some further information after the preliminary hearing. The acts or deliberate failures to act giving rise to the detriment were said to be a failure to clarify the exclusivity clause, and failing to allow the claimant a grievance hearing. These meant that he was unable to pursue alternative employment that would have supplemented his limited furlough payments. He said that this caused him loss of earnings and stress.
The Hearing
[8]The Code V in the heading indicates that this hearing was conducted by video conference call using the HMCTS Cloud Video Platform. That was proportionate and fair given the issues to be determined, and there were no significant difficulties with the technology.[9]I had a bundle of documents running to 217 pages, and any references to page numbers in these reasons are a reference to that bundle. Mr O’Neill had supplied a written submission.[10]On the zero hours issue I heard no evidence but the claimant made an oral submission. Mr O’Neill’s submissions were in writing.[11]On the time limit issue I heard evidence on affirmation from the claimant, pursuant to a two page witness statement which he had supplied during the hearing. We had a break in the hearing to allow Mr O’Neill and I to read it. After the evidence I heard an oral submission from both sides before making my decision.[12]These reasons will deal with the zero hours issue then the time limit issue. Zero Hours Issue – Legal Framework[13]The position of zero hours workers is addressed by sections 27A and 27B of the Employment Rights Act 1996. Section 27A defines a “zero hours contract”, and identifies in subsection (3) provisions which are unenforceable. It is convenient to call such a provision an “exclusivity clause”.[14]The definition of an exclusivity clause is as follows: “Any provision of a zero hours contract which –(a) prohibits the worker from doing work or performing services under another contract or under any other arrangement, or(b) prohibits the worker from doing so without the employer’s consent...”[15]A clause of that kind is by section 27A(3) unenforceable against the worker.[16]Section 27B empowers the Secretary of State to make further provision by means of regulations. The Zero Hours Regulations from 2015 make provisions for unfair dismissal and the right not to be subjected to a detriment.[17]The detriment provision is section 2(2), which is as follows: “(2) A worker who works under a zero hours contract has the right not to be subjected to any detriment by, or as a result of, any act, or any deliberate failure to act, of an employer done for the reason specified in paragraph (3). (3) The reason is that the worker breached a provision or purported provision of the zero hours contract to which section 27A(3) of the 1996 Act applies.” Zero Hours Strike Out Decision[18]Rule 37 of the Employment Tribunals Rules of Procedure 2013 provides that a Tribunal may strike out all or part of a claim or response on the ground that it has no reasonable prospect of success.[19]This power should not be too readily exercised. Cases should not be struck out when the central facts are in dispute, as striking out the case will deprive the claimant of an opportunity to prove those facts at the final hearing. The correct approach, therefore, is to take the claimant's factual case at its highest, unless it is contradicted by plainly inconsistent documents. Complaints of detriment are analogous to complaints of discrimination under the Equality Act 2010, where the approach to striking out was summarised by the Employment Appeal Tribunal in Mechkarov v Citibank NA [2016] ICR 1121 as follows in paragraph 14: “On the basis of those authorities, the approach that should be taken in a strike out application in a discrimination case is as follows:(1) only in the clearest case should a discrimination claim be struck out;(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;(3) the Claimant’s case must ordinarily be taken at its highest;(4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.” I applied this approach to the zero hours issue.[21]In addition I assumed in favour of the claimant that his contract did contain an exclusivity clause which fell within section 27A(3). That is something which is not accepted by the respondent and which would have to be determined at a final hearing if the matter proceeded.[22]I also took account of the claimant's confirmation, provided previously in writing and given again at this hearing, that he did not do any work for an alternative employer. His case is that he was deterred from seeking such work by the exclusivity clause, not realising at the time that it was legally unenforceable.[23]Having considered Mr O’Neill’s written submission, I identified the main point for the claimant and invited him to respond to it. He raised two arguments. The first was that his expressed intention to work elsewhere was sufficient to amount to a breach of the clause in his contract, and therefore the detrimental treatment that flowed was a consequence of that breach. He said that the respondent had “deemed” it to be a breach. The second argument was that the clause prevented him not just from performing other work but also from even looking for it, and therefore that even though he did not actually work he had been in breach of the clause in question.[24]I considered both of these arguments but I was satisfied that this claim had no reasonable prospect of success.[25]The core problem faced on the first argument was that regulation 2(3) identifies very precisely the conduct on the part of the employee which must be the reason for the detriment if the protection is to be activated. It is that the worker breached the provision to which section 27A(3) applies. It is not engaged if the worker is thinking about possibly breaching it, or was deterred from breaching it. There must be an actual breach by “doing work or performing services under another contract”.[26]On this point I considered whether the claimant might have an argument that there was an anticipatory breach, which would occur if he conducted himself in such a way as to make clear that he would definitely be breaching the contract in the future. In my judgment this would only be tenable as an argument if the claimant had accepted an offer of other employment and notified the respondent of the date he would be starting. Even taking his factual case at its highest, this had not happened.[27]It followed that as the claimant had not done work or performed services under another contract, he was not in breach of the exclusivity provision in his contract (assuming that it existed as he maintained) and therefore his actions did not attract any protection under regulation 2. The claim had no reasonable prospect of success.[28]I also considered his alternative argument that the clause operated so as to prevent him even seeking work. The difficulty with this argument is that a clause which prohibits an employee from seeking other work, as opposed to actually doing it, would be outside the scope of section 27A(3). It is only clauses which prevent employees actually doing work which are rendered unenforceable and which then trigger protection if the employee breaches the clause and is treated detrimentally as a result.[29]For those reasons I concluded that the complaint under the Zero Hours Regulations had no reasonable prospect of success, and I struck it out. Time Limit Issue – the Law[30]The time limit for a complaint of unauthorised deductions from pay appears in section 23 of the Employment Rights Act 1996: (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…. (4) Where the employment tribunal is satisfied that it was not reasonably practicable for the complaint 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.”[31]Two issues may therefore arise if the complaint is outside the primary time limit in subsection (2): firstly, whether it was not reasonably practicable for the claimant to present the complaint within time, and, secondly, if so, whether it was presented within such further period as is reasonable.[32]Something is “reasonably practicable” if it is “reasonably feasible” (see Palmer v Southend-on-Sea Borough Council [1984] ICR 372, Court of Appeal). The court approved the statement in Bodha v Hampshire Area Health Authority [1982] ICR 200 that the existence of a pending internal appeal does not of itself justify a finding that it was not reasonably practicable to bring a claim.[33]Ignorance of one’s rights can make it not reasonably practicable to present a claim within time as long as that ignorance is itself reasonable. An employee aware of the right to bring a claim can reasonably be expected to make enquiries about time limits: Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488 Employment Appeal Tribunal.[34]In Marks and Spencer Plc v Williams-Ryan [2005] ICR 1293 the Court of Appeal reviewed some of the authorities and confirmed in paragraph 20 that a liberal approach in favour of the employee was still appropriate. What is reasonably practicable and what further period might be reasonable are ultimately questions of fact for the Tribunal. Time Limit Issue – Findings of Fact[35]Having heard the evidence I made the following findings of fact.[36]The claimant was aware prior to 10 May 2020 the basis upon which his furlough pay would be deducted. There had been an exchange of emails on 5 and 6 May (pages 74 and 75) in which he was told that the method of calculation would follow Government guidelines and the issue was not negotiable.[37]He was aware in broad terms of his right to go to an Employment Tribunal, although he did not have specific understanding of the time limit position at this stage. The claimant was a member of the GMB trade union, and did take advice from them during May about the rules of the furlough scheme. The union told him, however, that he would have to exhaust the internal procedures before he could access legal advice.[38]In the claimant's previous experience during his years of employment for the respondent any errors in payslips had been corrected the following month. Despite being told that the method of calculation was not negotiable, he hoped that it might be corrected in the payslip on 10 June 2020.[39]When he saw this had not been done he brought his grievance on 11 June 2020. The claimant believed that he ought to exhaust his internal grievance before taking legal proceedings. He formed the view that the grievance ought to take a total of 42 days, since according to the relevant procedures an initial response was due within 28 days and any appeal might take a further 14 days. He anticipated that the grievance ought to be resolved by 23 July 2020.[40]That remained his view even despite email correspondence of 18 June 2020 (page 84) telling him that he could not bring a grievance about a company process issue. His response the following day (page 84) sought to appeal that decision or in the alternative to lodge a second grievance.[41]By late July the claimant had carried out some research and had seen the page on the ACAS website (page 52) which says that the time limit for making a claim to an Employment Tribunal is “three months less one day”. It gives an example of an unfair dismissal complaint where time runs from the date of the dismissal.[42]Crucially, I found as a fact that the claimant thought that his three month less one day period ran from the failure to correct the error in the payslip on 10 June 2020. However, he had not seen anything on the ACAS website which said that, and in truth it was a misunderstanding of the law. That misunderstanding was the real reason that his claim was lodged out of time. He thought that the three month time limit for commencing early conciliation in order to “stop the clock” expired on 9 September 2020. It actually expired on 9 August 2020.[43]In mid-August the claimant was informed that he would be coming back to work in the last week of August. He knew he would be very busy then and decided to start the ACAS conciliation process before then rather than wait until what he thought was the last date on 9 September. He commenced ACAS early conciliation on 17 August. He knew he could not bring a claim until the certificate was issued. ACAS issued their certificate on 17 September 2020. He believed that he had a calendar month to lodge his claim and therefore that 16 October 2020 would be the last day. In truth this was a misapprehension, because the one month extension under the legislation from the date of the certificate only applies if the conciliation period starts within the primary time limit.[44]Rather than leave his online submission of the claim form until what he thought was the very last day, he did it the day before. That is why his claim form was lodged on 15 October 2020, over two months after the primary limitation period expired. Part of the reason he left it until the end of what he thought was the limitation period was because he was very busy supporting his family and friends at this time due to a number of issues arising out of the pandemic. Time Limit issue - Submissions[45]Mr O’Neill had prepared a written submission and he relied on that and the questions he put in cross examination as a summary of his case as to why time should not be extended. He submitted that it was reasonably feasible for the claimant to have ascertained, by means of internet research or otherwise, that the time limit ran from the date of the deduction, not from the date of the failure to correct it. It was therefore reasonably practicable for the claimant to have presented his claim within time. He was well equipped to undertake such research, as was evident from the terms of his submissions and emails which frequently referred to particular pieces of legislation. Further, once the ACAS conciliation period ended he could reasonably have lodged his claim more quickly as he still had time to do that despite the family issues. He was still furloughed at that stage and therefore had the hours which otherwise would have been working hours available to him.[46]In his submission Mr Dellal emphasised that the deductions were continuing even to the present time, although he had chosen to limit his claim form only to the deduction made on 10 May 2020. He had believed that the payment on 10 May 2020 could not be considered as a deduction until the respondent had had a chance to put it right the following month. He thought that if he were to bring a Tribunal claim before the next payment it would be regarded as premature. His position was that he had behaved reasonably throughout and the claim should be allowed to proceed. Time Limit Issue – Decision[47]As a matter of law, it is plain from section 23(2)(a) that the three month time limit started to run on the date of the alleged underpayment, not the date on which the respondent could have corrected it. The claimant was wrong in his belief that it could not be regarded as a deduction until the following payday had passed.[48]Further, it is clear that the claimant operated under a mistaken belief that his three month limitation period was running from 10 June 2020 rather than 10 May 2020. His actions after that period were entirely consistent with this view and showed a good understanding of the interaction between Tribunal time limits and early conciliation, save for the misapprehension about when time started to run. He knew that the three months from 10 June would allow sufficient time for the grievance to be completed, which is always to be encouraged before a Tribunal claim is brought, and he knew that by going to ACAS the clock would stop and he would not be able to lodge his claim until the ACAS conciliation certificate had been issued. He also understood that once that was issued he had a calendar month in which to bring his claim. In the light of that misapprehension his actions that followed were entirely reasonable.[49]This case therefore turned upon the question whether his mistaken belief that time was running from 10 June 2020 was one which it was not reasonably practicable for him to have corrected. Could he reasonably have found out that time started to run on 10 May?[50]In my judgment it was reasonably practicable for him to have ascertained the correct position. For example, the ACAS website itself in the advice section contains a page on deductions from pay which makes clear that where there is a single deduction the three month period runs from the date of the deduction. That same information is easily ascertainable by means of internet research using Google or another search engine. The claimant could also have made a specific enquiry about time limits of his trade union, just as he sought advice about the furlough rules. I accepted Mr O’Neill’s submission that the claimant was well able to research and ascertain the relevant law, having done so on more complex matters such as the Zero Hours Regulations, or the applicability of an uplift where an employer unreasonably fails to comply with the ACAS Code of Practice on Discipline and Grievance Procedures.[51]It follows that in my view it was reasonably practicable for the claimant to have brought his claim within time by carrying out research which would have identified the correct position, and which could then have informed his approach to time limits in the weeks that followed. The first condition for extending time under section 23(4) is not met, and the complaint of unlawful deductions from pay is dismissed.
Conclusion
[52]The complaint in relation to detriment under the Zero Hours Regulations is struck out because it has no reasonable prospect of success.[53]The complaint of unauthorised deductions from pay in relation to the deduction on 10 May 2020 is dismissed because it was brought out of time and the claimant has not established that time should be extended.[54]That means that the Tribunal no longer has any power to make an award for any failure to supply a written statement of the main terms of employment, and therefore these proceedings are at an end.[55]Mr O’Neill indicated at the end of the hearing that his client would consider whether to make an application for costs. Any such application should be made within 28 days of the date that this Judgment is sent to the parties. It must be copied to the claimant and set out details of the amount claimed, how it has been calculated, and why it is considered that the claimant has acted unreasonably. The claimant will have an opportunity to respond within 14 days of receiving any such application, and I will then determine the costs application on the papers unless either side requests a further hearing.[56]If an application is pursued the claimant can find more information about costs in Guidance Note 7 attached to the Presidential Guidance on General Case Management found at this website: https://www.judiciary.uk/publications/employment-rules-and-legislation-practicedirections/