Mr A Ekoue v Samworth Brothers Ltd T/a Bradgate Bakery: 2604138/2020 and Others
EMPLOYMENT TRIBUNALS
Case No 2604138/2020
Between
Mr A EkoueClaimantSamworth Brothers Limited t/a Bradgate BakeryRespondent
Before
Employment Judge Victoria ButlerIn person for claimantDate 6 October 2022
JUDGMENT
[1]The claimant’s application to amend his claim to include allegations one, two and three is refused.[2]Allegation four is struck out because it has no reasonable prospect of success.
REASONS
[1]There are a number of live claims involving the Claimant and his partner, Ms Krejcova, which have been combined to form a multiple[2]The Claimant was employed by Samworth Brothers Limited at Bradgate Bakery (“Bradgate Bakery”). Ms Krejcova was employed by A La Carte Recruitment (“ALC”) which is a recruitment agency and was assigned to work at the Bradgate Bakery. There is no contractual relationship between ALC and the Claimant.[3]The parties attended a closed telephone preliminary hearing on 15 February 2021 before my colleague, Employment Judge Ahmed (“EJ Ahmed”). He set out the existing claims within the multiple in his case management summary 1 of 15 and it appears that some may be duplicates. He also ordered the Claimants to provide further and better particulars of their claims, more particularly that “they should specify each and every act or allegation of race, disability, or maternity/pregnancy discrimination in these proceedings”. They were also ordered to provide witness statements.[4]The following claims relevant to this judgment within the multiple are: Case no: 2602474/20 – Ms Krejcova (pages 1 -13)[5]The Claimant issued this claim on behalf of Ms Krejcova on 22 June 2020 in respect of pregnancy and maternity discrimination and ‘other payments’. The claim was rejected because there was no early conciliation certificate in respect of the proceedings.[6]Ms Krejcova contacted ACAS on 20 November 2020 and the claim was subsequently accepted in her name only on 29 November 2020. Case no: 2604138/2020 (pages 15 – 26)[7]The Claimant issued this claim on 18 November 2020 alleging race discrimination, disability discrimination and breach of contract. He says that the Respondent had no intention of responding to his various complaints (of which there were nine in total) and only did so when he issued proceedings.[8]The Claimant states in the ET1 that he sent documents in support of his claim to the Tribunal by post, but these were not received by the Tribunal or the Respondent. Case no: 26041500/20 – ‘other payments’ (pages 49- 60)[9]This claim was issued on 30 December 2020 and relates to ‘other payments’ but there is no detail of the complaint provided. The Claimant simply states ‘please see attached send to you by Post office’ but again, no supporting documentation was ever received by the Tribunal or the Respondent. Further particulars[10]The Claimant submitted further and better particulars of his claims/an amendment application on 6 March 2021. The particulars of the discrimination claim mirror that initially complained of, namely that the Respondent failed to deal with his complaints in a timely manner (p.124). He also confirmed that the disability relied on is anxiety which started on 7 April 2020 and was communicated to the Respondent on 20 April 2020 (page 124). However, he does not particularise allegations one, two and three (more below).
The hearing
[11]This hearing was an open preliminary hearing to determine (in respect of both Mr Ekoue and Ms Krejkova): 2 of 15 “1.1 Whether the complaints of race, disability, pregnancy and maternity discrimination should be struck out as having been presented out of time; 1.2 Whether any or all of the complaints should be struck out if it is considered that:1.2.1 they are a duplicate of other claims;1.2.2 they amount to an abuse of process;1.2.3 that have no reasonable prospect of success within the mearing of Rule 37(1)(a) of the Employment Tribunal Rules of procedure 2013; 1.3 Alternatively, to determine if the Claimants should be required to pay a deposit as a condition of continuing with any or all of the complaints or any allegations or arguments in respect of them, if it is considered that they have little reasonable prospect of success, and if so to decide the amount of the deposit; and 1.4 To identify the issues any make such case management orders as are necessary for the future conduct of the case.”[12]Unfortunately, both days were taken up dealing with the Claimant’s case, so I was unable to deal with the matters relevant to Ms Krejcova. Her case has been re-listed for a two-day hearing before me.[13]To be clear, this judgment only relates to Mr Ekoue (referred to as the Claimant) and Samworth Brothers Limited (referred to as the Respondent).[14]During the course of the hearing, Mr Ekoue made a number of allegations against the Respondent about disclosure, more particularly that it had failed to disclose the second page of a letter which he said was ‘crucial’ to his case. It emerged that this was simply a copying error and after spending a disproportionate amount of time getting to the bottom of the matter, the Claimant had the missing page in his possession all along and it was far from crucial – three lines long and of no material substance.[15]After dealing with the above, I asked the Claimant to summarise the allegations for me in a ‘bullet point’ format. It was a difficult task to elicit exactly what the allegations are, but they are primarily allegations of direct race discrimination summarised as follows: Allegation one[16]That he was denied the right to accompany Ms Krejcova at a meeting on 23 January 2020 chaired by the Respondent. This was a meeting to investigate her grievance relating to an incident where she claims she collapsed at work on 28 October 2019 causing her to miscarry. 3 of 15[17]As above, the Claimant is not employed by ALC and there was, therefore, no statutory right for him to accompany her. The Claimant says that it was since the meeting that ‘all his problems started’, and the Respondent started to ‘block’ him.[18]The Respondent says that the Claimant was asked to leave the meeting because of ‘unnecessary disruption through inappropriate behaviour’ and that the Respondent does not allow family members to accompany partners in such meetings because they are too involved (page 588). Allegation two[19]That he was denied the right to training and education. He says that in July 2019, he was issued with a contract for a relief semi-skilled engineer requiring him to receive training. His colleague, Mr M Onyegbula was also offered the same contract and their manager, Mr M Mutemererwa, advised that they could not be trained concurrently. Mr Mutemererwa was selected to undertake training first and was still undertaking it on 26 March 2020.[20]The Claimant says that he was denied to opportunity to start his training and ‘gave up’ and changed his shift on 18 January 2020.[21]The Claimant says that this allegation also amounts to discrimination because of something arising in consequence of his disability. He does not say what the ‘something’ arising is or why his treatment was because of that something.[22]The Respondent says that the Claimant was fully aware that only one employee could be trained at a time and that Mr Mutemererwa was trained first by ‘no means of selection’. The Claimant was advised when he made a request to change shift that there was no vacancy for a relief semi-skilled engineer on that shift and the offer of training was withdrawn when he confirmed he still wanted to change (page 189). It also points out that Mr Onyegbula and Mr Mutemererwa are both people of colour. Allegation three[23]The Claimant relies on the Respondent’s letter dated 9 April 2020 which accused him of ‘aggressive and unacceptable’ behaviour in his grievance appeal meeting on 3 April 2020 and explained that his conduct was to be the subject of an investigation as it could be regarded as gross misconduct (page 213). He says that on receipt of this letter he realised the Respondent was ‘trying to kill me, trying to destroy me’.[24]The Claimant asserts that this allegation also amounts to direct disability discrimination. Allegation four 4 of 15[25]That the Respondent failed to respond to his various complaints and that ‘they have never been answered’ (my notes). Application to amend[26]The Claimant accepted that allegations one, two and three are entirely new and not pleaded in any of the existing claim forms. The detail of these claims was advanced for the first time at the hearing before me.[27]Accordingly, he was required to make an application to amend his claim and was given opportunity to do so at the hearing. I explained to him the factors that I was required to consider, namely the nature of the amendment, time limits and the timing and nature of the application. Submissions – the application to amend The Claimant[28]As above, the Claimant acknowledged that allegations one, two and three are not pleaded in any existing claim and are entirely new complaints.[29]He sought to argue that they were not out of time given that he submitted his first claim on 22 June 2020. He says that the claim was rejected without his or his partner’s knowledge and, once they learned that it had been rejected on 13 November 2020, it was re-submitted on 18 November 2020. He also provided further and better particulars on 6 March 2021 in accordance with EJ Ahmed’s orders. The Respondent[30]Given the considerable amount of time spent eliciting the necessary information from the Claimant, I ordered the Respondent to submit written submissions which were duly provided.[31]The Respondent says that the first claim was never intended to be a claim for race or disability discrimination - it is a claim for pregnancy and maternity discrimination and “other payments” but, regardless, it was properly rejected because the Claimant failed to obtain an early conciliation certificate. The Claimant’s attempt to rely on the first claim to attempt to bring the claims in time is entirely ‘fallacious’. It does not relate in any way to the allegations now raised and, further, the Claimant failed to give an explanation as to why he did not raise them in his second claim issued in November 2020.[32]The Claimant frequently threatened the Respondent with litigation during his employ yet did not seek to introduce the allegations until March 2021.[33]The Respondent also deals with the merits of each allegation. In respect of allegation one, the Claimant’s partner was not an employee of the Respondent. Accordingly, the Claimant had no right to accompany her at the meeting, either under the Respondent’s policy or the ACAS code of practice. For the allegation 5 of 15 to succeed, the Claimant would have to show that the manager who conducted the meeting, Mr Alex Arthur (who is also a person of colour), refused to allow the Claimant to continue to attend the meeting because he is a person of colour. It submits that the appropriate comparator would be a hypothetical white person who was a family member of an agency worker complainant who had demonstrated an emotional involvement in the issues and, therefore, the allegation has no prospects of success.[34]In respect of allegation two, it submits that given that Mr Onyegbula and Mr Mutemererwa are both persons of colour it is ‘somewhat unlikely’ that the treatment received by the Claimant was because he is a person of colour. Of particular note, during the hearing the Claimant said that his training was ‘blocked’ because he had ‘exercised his right to free speech’ at the meeting on 23 January 2021. Accordingly, the allegation is bound to fail[35]In respect of allegation three, the Claimant admitted that he lost his temper in the meeting on 7 April 2020. Further, he only makes one reference to this letter in his witness statement and, at the hearing, the Claimant said that on receipt of the letter he realised that the Respondent was “trying to kill him” - but failed to give any reason to suggest why the letter amounted to less favourable treatment. The correct comparator is a white person who lost his temper and behaved in the same manner as the Claimant. The complaint has no reasonable chance of succeeding.[36]More generally, the Respondent submits that any allegation occurring prior to 7 December 2020 is out of time because the Claimant did not submit his further particulars until 6 March 2021. Accordingly, allegation one is over eight months out of time, allegation two is over ten months out of time and allegation three is almost eight months out of time.[37]The Respondent submits that the balance of prejudice would fall against it if the amendments are allowed and the delay in raising the allegations will have an impact on the cogency of its evidence. Strike out/deposit application[38]Turning to allegation four, the Respondent accepts that this allegation is pleaded and in time. However, it submits that it should be struck out as having no reasonable prospect of successful or, alternatively, that it should be subject to a deposit order.[39]In the ET1, the Claimant simply states (verbatim): “The organisation I am complaining about did not have any intention to respond to complaints instead the time limit of their own policy (7 days). Nine complaints in total were send since 06.03.2020 but any of them was respond till time I decided to contact you. 6 of 15 As formally I need to deal Grievance Meeting with them regarding matter I was complaining about, this circumstance to refused to respond complaints basically delayed the time to contact ACAS and submitted you my claim. Last information received from the business was 08.11.2020 where they decided to submit answer before end of the week but this timeline was breached. Date 13.11.2020 the business did contact me again that they will submitted response within the week, but today date (18.11.2020) any response was send”.[40]The Respondent asserts that the Claimant was aware that it was undertaking significant investigatory work into his numerous complaints and kept him updated of the same. It was not in breach of its own grievance policy and was taking active steps to determine numerous and complex grievances submitted by the Claimant. In summary, the Claimant has simply made an assertion of different treatment with no foundation or explanation as to why it amounts to direct race discrimination. The law Application to amend
The law
[41]The starting point in an application to amend is always the original pleading set out in the ET1. In Chandok v Tirkey 2015 ICR 527, the EAT said: “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with the time limits but which is otherwise free to be augmented by whatever the parties choose to add or subject merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1.”[42]In dealing with an application to amend, the Tribunal will take into consideration its duty under the overriding objective: to ensure that the parties are on an equal footing; to deal with the case in a way that is proportionate to the complexity and importance of the issues; to avoid unnecessary formality and seek flexibility in the proceedings; to avoid delay so far as compatible with proper consideration of the issues; and to save expense.[43]In Cocking v Sandhurst Stationers Ltd [1974] ICR 650 the President held that regard should be had to all the circumstances of the case and in particular the Tribunal should “consider any injustice or hardship which may be caused to any of the parties if the proposed amendment was allowed or, as the case may, be refused”.[44]In Selkent Bus Co Ltd v Moore [1996] I.C.R. 836 the EAT held that relevant circumstances include: 7 of 15 "Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal has to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions e.g., in the case of unfair dismissal, S.67 of the 1978 Act.(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision."[45]The Presidential Guidance on General Case Management (“the Guidance”) incorporates the factors set out in Cocking and Selkent.[46]In respect of re-labelling, the Guidance provides: “While there may be a flexibility of approach to applications to re-label facts already set out, there are limits. Claimants must set out the specific acts complained of, as Tribunals are only able to adjudicate on specific complaints. A general complaint in the claim 8 of 15 form will not suffice. Further an employer is entitled to know the claim is has to meet”.[47]Under ‘Time Limits’ the Guidance provides: “The Tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Where for instance a claimant fails to provide a clear statement of a proposed amendment when given the opportunity through case management orders to do so, an application at the hearing may be refused because of the hardship that would accrue to the respondent”.[48]A Tribunal can allow an application to amend but reserve any limitation points until the final hearing which might be necessary in cases where it is not possible to make a determination without hearing the evidence – Galilee v Commissioner of the Metropolis UKEAT/0207/16. Time limits[49]Section 123(1) of the Equality Act 2010 provides that a complaint may not be brought after the end of(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the Tribunal thinks just and equitable.[50]Under section 123(3) conduct extending over a period is to be treated as done at the end of the period; and failure to do something is to be treated as occurring when the person in question decided on it.[51]Under section 123(4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something(a) when P does an act inconsistent with doing it; or(b) If P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Striking out a claim or part of it – Rule 37 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013[52]Rule 37 provides: “At any stage of the proceedings, either on its own initiative or on the application of a party, the Tribunal may strike out all or part of a claim or response on any of the following grounds:(a) That it is scandalous or vexatious or has no reasonable prospect of success.(b) That the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent (as the case may be) has been scandalous, unreasonable or vexatious; (b) For non-compliance with any of these Rules or with an order of the Tribunal;(c) That it has not been actively pursued;(d) That the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out.)” 9 of 15[53]In dealing with an application to strike out all or part of a claim the Tribunal must be satisfied that there is “no reasonable prospect” of success in respect of that claim or complaint. It is not sufficient to determine that the chances of success are remote or that the claim or part of it is likely, or even highly likely to fail - it must be bound to fail. As Lady Smith explained in Balls v Downham Market High School and College [2011] IRLR 217, EAT (paragraph 6): “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the words “no” because it shows the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in the submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects…”[54]Claims or complaints where there are material issues of fact which can only be determined by an Employment Tribunal will rarely, if ever, be appropriate to be struck out as having no reasonable prospect of success before the evidence has been deliberated.[55]When consideration is being given to striking out discrimination claims particular care must be exercised and it will rarely, if ever, be appropriate to do so in cases where the evidence is in dispute. The Claimant’s case should be taken at its highest, unless it can legitimately be said as enjoying no reasonable prospect of succeeding at a substantive hearing. Deposit Orders – Rule 39 Employment Tribunals (Constitution & Rules of Procedure Regulations 2013[56]Rule 39 provides: “(1) Where at a Preliminary Hearing (under Rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.” (3) The Tribunal reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. 10 of 15 Where a response is struck out, the consequences shall be as if no response had been presented as set out in Rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides a specific allegation or argument against the paying party for substantially the same reasons given in the deposit order: -(a) The paying party shall be treated as having acted unreasonably pursuing that specific allegation or argument for the purpose of Rule 76 unless the contrary is shown and;(b) The deposit shall be paid to the other party or if there is more than one to each other party (or the parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[57]Accordingly, the Tribunal may make a Deposit Order where allegations or arguments have little reasonable prospect of succeeding. It remains the Tribunal’s discretion to determine if such an Order should be made, even where there is little reasonable prospect of success.[58]The Tribunal should identify the allegations or arguments that have little prospect of success and to discourage their pursuit by ordering a sum to be paid, consequently placing the party at risk of costs if the claim is pursued and subsequently fails.[59]The Tribunal is not restricted to considering purely legal issues and am entitled to have regard to the likelihood of the Claimant being able to establish the facts necessary to the case and can reach a provisional view as to the credibility of the assertions being advanced. Conclusion – application to amend[60]In considering the application to amend to include allegations one, two and three, I considered the interests of justice and balance of hardship as I am required to do, including the nature of the amendment, time limits and the timing and manner of the application. I also felt that it was appropriate to consider whether the claim, as amended, has any reasonable prospect of success.[61]The Claimant concedes that the allegations are entirely new thereby amounting to a substantial alteration pleading a new cause of action.[62]Turning to time limits, the proposed amendments are clearly out of time. The Claimant sought to argue that they were in time given that he submitted his first claim to the Tribunal on 22 June 2020. However, that claim was issued on behalf of his partner and related to pregnancy and maternity discrimination and other payments, and not race or disability discrimination. It was properly rejected and notification of the same was sent to the named representative. The Claimant was not aware that the claim was rejected until he made enquiries with the Tribunal on 13 November 2020. The claim was subsequently accepted 11 of 15 on 29 November 2020 in Ms Krejcova’s name only and cannot be used as a vehicle to bring the Claimant’s claim in time.[63]The Claimant submitted his second claim on 18 November 2020 alleging race discrimination, disability discrimination and breach of contract but only in respect of allegation four. The first time the new allegations were articulated was during this hearing, albeit the Respondent uses the date of 6 March 2021 when the further particulars/application to amend was submitted. Even using the earlier date of 6 March 2021, I am entirely in agreement with the Respondent that any allegation occurring before 7 December 2020 is outside the primary time limit. Of course, taking the later dates of this hearing (16 & 17 June 2021) the allegations are even further out of time.[64]To recap, allegation one occurred on 23 January 2020, allegation two occurred on or around 26 March 2020 at the latest and allegation three on 9 April 2020. By 7 December 2020, the Claimant had submitted his resignation and his grievances had been determined. Furthermore, he had not attended his place of work since April 2020. Clearly, the allegations are out time even on the earlier date.[65]The Claimant has made no coherent argument that the allegations amounted to conduct extending over a period but even if he did, given that the Claimant had resigned by 7 December 2020, and his grievances had been determined, any final allegation is still outside the primary time limit.[66]I have considered whether it is just and equitable to extend the time limit to allow the claims to proceed. The Claimant was unable to explain why he had failed to raise these allegations prior the hearing. Of course, he referred to the June 2020 claim but as I have already explained, this was in no way related to race or disability discrimination. The Claimant was fully aware of his entitlement to issue proceedings in the Tribunal, having threatened the same in his correspondence with the Respondent on numerous occasions. He submitted a claim on behalf of his partner on 22 June 2020 and submitted his first claim on 18 November 2020 - he was not ignorant of his rights. Absent any credible explanation as to why the Claimant failed to raise these matters earlier, I conclude that it is not just and equitable to extend time.[67]My considerations in respect of time limits also apply to my consideration of the timing and manner of the application to amend. The Claimant has simply not provided any explanation for the delay.[68]Finally, it would seem to me that in any event, the three allegations have no, or at best little, reasonable prospects of success. The Claimant has simply made assertions of discrimination but no more than that and I am persuaded by the Respondent’s submissions in respect of each. I am mindful that it is rare to find overt evidence of discrimination, but there must be something more than a simple assertion of different treatment – he would need to establish primary facts from which the Tribunal could draw an inference that the treatment was because of the Claimant’s race or in any way related to disability, as the case may be. 12 of 15[69]I have concluded that the application to amend should be refused. It was entirely within the Claimant’s gift to present the allegations at a much earlier stage and he failed to explain why he neglected to do so, despite being fully aware of his legal entitlements. The allegations relied on date back to January 2020 and are out of time, placing the Respondent at a disadvantage given that by the time this matter comes to trial, the allegations will be substantially over two years old, without justification. Accordingly, the balance of injustice and hardship will fall against the Respondent if the amendment were allowed. Conclusion - strike out/deposit order[70]The Respondent submits that allegation four should be struck out as having no reasonable prospect of success given that the Claimant has failed to explain in his further particulars, his witness statement or in the two days before me any matter in support of his allegation that the delay in delivering his grievance outcome was because of or in way related to race or disability. He was aware that the Respondent was investigating his grievances, it held a grievance hearing with him on 22 October 2020 and delivered a lengthy outcome thereafter. Further, there was no breach of the Respondent’s grievance procedure.[71]Within the bundle for this hearing, I observe the following:[72]On 10 March 2020, the Claimant raised a grievance alleging discrimination which was fully investigated, and an outcome delivered. He was offered the right to appeal which he duly exercised. An appeal hearing was conducted on 2 April 2020 and an outcome delivered thereafter.[73]The Claimant was absent from work from 29 April 2020 and the Respondent maintained appropriate contact with him regarding his welfare. The Claimant habitually wrote accusatory letters in response to any contact from the Respondent, especially during his sickness absence.[74]On 13 June 2020, the Claimant raised a further grievance. He was invited to attend a grievance hearing, but the Claimant initially declined to attend, citing that he was unfit to do so. The hearing was re-scheduled for 3 August 2020 and an outcome delivered on 5 August 2020.[75]Thereafter, the Claimant raised more complaints (often referring to ‘libel defamation’) culminating in a further grievance dated 20 September 2020 which was not e-mailed to the Respondent until 6 October 2020.[76]A grievance hearing was scheduled for 13 October 20210 but postponed at the Claimant’s request until 22 October 2020. Following the hearing, the Respondent investigated each letter of complaint/grievance that the Claimant said it had failed to respond to and interviewed five employees relevant to the complaints. This had been undertaken before the Claimant issued his claim on 18 November 2020. 13 of 15[77]A comprehensive outcome was provided by way of letter dated 23 November 2020 comprising over seven pages. Had the Claimant not postponed the first hearing, the outcome may well have been delivered prior to 18 November 2020. However, it is abundantly clear that the Respondent was taking his grievance seriously and investigating it in accordance with its grievance procedure and the Claimant was aware of the steps it was taking.[78]The Respondent’s grievance procedure states that each stage (the grievance meeting and subsequent outcome) will occur ‘normally within one week’. This is not an absolute deadline and the procedure is clear that further investigation may be undertaken after the grievance hearing. As above, the Claimant raised numerous issues and the grievance officer conducted five further interviews after the hearing before producing a comprehensive grievance outcome. In light of this, I do not consider that a period of four-and-a-half weeks to deliver the grievance was unreasonable.[79]The power to strike out discrimination claims should only be exercised in rare circumstances and not where the central facts are in dispute. The correct approach is to take the Claimant’s case at its highest, as it is set out in the claim, unless contradicted by plainly inconsistent documents. As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. Having said that, the above guidance is not to be taken as amounting to a fetter on the Tribunal’s discretion.[80]The thrust of the Claimant’s case is that the Respondent had no intention of responding to his complaints from 6 March 2020 until he issued this claim. This is simply not correct and his assertion in this regard is misleading at best. The Respondent had previously dealt with the Claimant’s grievances dated 10 March 2020 and 13 June 2020 properly and in accordance with its grievance procedure. It was doing the same with the most recent grievance prior to proceedings being issued. The documents evidencing the same are entirely inconsistent with the Claimant’s pleaded case.[81]Notably, in the hearing before me the Claimant said on a number of occasions that all his problems started after he tried to accompany Ms Krejcova at her grievance hearing and did not state that race was a factor.[82]Even if I take the Claimant’s case at its highest, I cannot conclude that it has any reasonable prospect of success. His claim is so obviously contradicted by the documents and of equal concern, he appears to have mislead the Tribunal. He says specifically that none of his complaints since 6 March 2020 have been responded to but the documents evidence this to be a false assertion as I set out above. As such, I conclude that allegation four has no reasonable prospect of success and is, therefore, struck out. 14 of 15[1]The claimant pursues 3 claims: one relates to unpaid holiday pay; one relates to unpaid sick pay and one relates to unpaid pay for shared parental leave. I set out the details below. There was a fourth claim that related to holiday pay in respect of bank holidays. The claimant has withdrawn that. Therefore I have dismissed it on withdrawal. Page 1 of 12 The respondent denies the claims. Hearing[3]The hearing took place at Leicester. Everyone attended the hearing centre.[4]The claimant represented himself. His first language is French. He acted through an interpreter. On the first day the interpreter was Ms C Ebbing, and on the second day it was Mr K Eter. Neither party raised with me any suggestion that there were difficulties with the interpretation. Nothing happened that gave me any reason to think that there were issues with interpretation.[5]The respondent was represented by Ms C Finlay, Solicitor.[6]Mr A Ekoue gave oral evidence to the Tribunal on his own behalf. Mr D Ball gave evidence to the Tribunal on behalf of the respondent. Each witness adopted their own written witness statement as their evidence. Each party cross-examined the other’s witness.[7]Mr Ekoue’s statement was in English. He confirmed to me he can read and write English and speak it reasonably well in an informal setting. Therefore he wrote his statement in English and he understood what it said. His statement was quite clear and easy to read. He used the services of the interpreter only because he feared the Tribunal room would be a lot more formal than daily life and because there may be difficult concepts or special words used that he would not be able to understand. In the circumstances, I am satisfied therefore that his statement can be taken as an accurate record of what he wanted to say even though it is not in his first language. The fact he used an interpreter at the hearing is irrelevant to the decisions that I must make.[8]There was an agreed bundle of documents in a file. It consisted of about 300 pages.[9]Each party at the end of the case presented their arguments to me about why they should succeed.[10]I have taken into account the arguments, documents to which I was referred and the evidence of each witness.[11]Because Mr Ekoue does not speak English as his first language I decided to reserve and to write out my decision afterwards in order that Mr Ekoue can take time to read it and understand it. The parties agreed to this approach.[12]No party has suggested this hearing was unfair. I am satisfied it was a fair hearing.[13]At the start of the hearing, the respondent sought permission to amend its response to correct some factual errors relating to the days of the week that Mr Ekoue worked and to correct some dates. After discussing the issue with him, Mr Ekoue agreed to the amendment. They corrected some obvious errors. It did not change the substance of the response or raise new issues for me to consider. I granted permission therefore because no party was prejudiced by the amendment. Page 2 of 12[14]On the second day, Mr Ekoue suggested Employment Judge Victoria Butler has made an error when she recorded details of the claims that he was pursuing. He had not provided a written document setting out what those errors were. He had not given advance notice to the respondents of the alleged errors. It was her list that we had used to identify the claims and issues at the start of the hearing and which he agreed represented his claims.[15]I did not allow Mr Ekoue permission to amend his claim. I applied Vaughan v Modality Partnership [2021] ICR 535 (EAT) and the cases cited in that decision. The error was something he should have known about well before the hearing and, at the latest, he should have raised it at the start of the hearing when I asked if there any issues I had to deal with. He did not present an amendment in writing so I could not see what correction he proposed. All the matters he wanted to raise or could raise were well within his knowledge.[16]Besides the Learned Judge had ordered that any party who wanted to correct her list of issues (or anything else in the order) should write to the Tribunal within 14 days of the order being sent to them. It was sent to them on 17 January 2022. He had had a chance to suggest the correction. A significant amount of time had passed since. There was no good reason for the delay. The respondent had prepared on the basis the list was accurate and conducted cross-examination the previous day on the basis it was accurate. The balance of hardship and prejudice fell in the respondent’s favour.[17]Though I have set out my decision in discrete parts, the hearing was one composite hearing. Issues[18]Employment Judge Victoria Butler identified the issues in her order that was management order.[19]Ignoring the withdrawn claim, they are 19.1. The holiday pay claim: A claim for holiday pay for the period April 2019 to March 2020. He says he has received payment in the amount of £1519.65and avers a shortfall of £653.85;. 19.2. The sick pay claim: A shortfall of statutory sick pay for the period 4th of June 2020 and 6th of August 2020 19.3. The shared parental leave pay claim: A shortfall in pay while she was on shared parental leave between 17th of September 2020 and the 3rd December 2020[20]In addition I am satisfied that I must consider whether the claims are in time. Mr Ekoue suggested that Employment Judge Victoria Butler had already decided the claims were in time. I disagree. Having read paragraphs 3, 7 and 12 of her case management summary, I am satisfied that she had made no such determination of the issue and left it for the final hearing. The opening words of paragraph 12 “If the respondent makes applications in respect of time limits…” suggest the question of time limits was something Page 3 of 12 she had not decided, otherwise there would be no possibility of any such application. In addition her judgment sent to the parties on 17 January 2022 does not rule on the issue.[21]The law only allows me to decide cases that are either presented in time or where I have exercised a power to extend time so the claim is effectively presented in time. If neither of those situations apply then I do not have the jurisdiction to consider the claim, whatever its merits. Because it has not been considered already, I must consider it as part of my decision. Some common background Dates of presentation of the claim and early conciliation[22]The claim was presented to the Tribunal on 30 December 2020. Early conciliation through ACAS commenced on 26 November 2020. It ended on 30 November 2020.[23]Mr Ekoue had presented a number of claims to the Tribunal that ran alongside this one. The first of which I am aware was presented on 26 June 2020.[24]Mr Ekoue ceased to be an employee on 31 December 2020. The holiday pay claim How he put his claim[25]Mr Ekoue’s claim is that he was not paid what he was entitled to. He says he is owed £653.85.[26]However at the hearing he attempted to put the claim a different way. Instead he sought to say that the respondents refused to let him take leave to which he was entitled. That is that the issue that Employment Judge Victoria Butler identified. Mr Ekoue never sought to have that corrected. It is not the claim he presented to the Tribunal. He made no application to amend his claim to argue this point. It is the case as presented that matters and against which the claimant’s case is to be judged: Chandhok v Tirkey UKEAT/0190/14 (EAT). The claim is not simply a document to get things started. In my opinion in the absence of an amendment to add the allegation, his allegation that the respondent did not let the claimant take his leave is one that I do not have jurisdiction to decide. However I will express my views on it because I heard evidence about it. Legal basis of the claim and time limit[27]It is clear that the claim could proceed as either 27.1. A claim for unauthorised deduction from wages under the Employment Rights Act 1996 Part II, or 27.2. A claim for breach of the Working Time Regulations 1998.[28]I was not addressed on the particular legal basis for the claim. In my view it makes no difference since at the heart of this dispute is a factual issue alone.[29]In addition in each case the time limit is the same: 3 months to present the claim, and I can only extend time if it was not reasonably practicable to Page 4 of 12 present the claim in time, and it was presented in a reasonable period thereafter: Employment Rights Act 1996 section 23 and Working Time Regulations 1998 regulation 30. The time limit for the claim under the Employment Rights Act 1996 starts when the deduction was made. The time limit for the claim under the regulations commences when payment should have been made or the employee should have been permitted to take leave. His work and the contract of employment and Mr Ekoue’s work[30]Mr Ekoue was employed latterly as a hygiene operative. He was a member of a team of operatives at the respondent’s food processing factory. Hygiene is self-evidently important in the factory. The hygiene team needs a minimum number of operatives to be able to maintain acceptable hygiene standards.[31]Mr Ekoue’s contract of employment contains the following relevant clauses.[32]Clause 9.4 confirmed that pay was weekly, one week in arrears. The pay week ran from Sunday to Saturday inclusive. I accept therefore Mr Ball’s evidence that an employee who worked say Friday, Saturday, Sunday and Monday would have Friday and Saturday paid on one payslip, and Sunday and Monday on the payslip a week later.[33]The contract continues “12.1 Our holiday year is from April to March. “12.2 You are entitled to 20 days paid holiday during the holiday year, inclusive of any bank or public holidays (bank holidays) that fall on a day on which you are contracted to work. Your holiday entitlement accrues a rate of 1.66 days in each complete calendar month of service in a holiday year. “12.3 All holidays must be agreed in advance by your line manager .... All holidays must be taken in line with the applicable holiday booking procedure. “12.4 You must take all your holiday in the current holiday year as holiday may not be carried over into the following year save as required by law. You will not be given payments in lieu of any holiday not taken, save in accordance with clause 13.2 below on termination of your employment.”[34]Clause 13 confirms how holiday pay is calculated. At the time it was calculated by reference to a 12-week average as the regulations then provided. His work pattern[35]When Mr Ekoue commenced his employment, he worked a shift pattern of 4 days at work and 4 days not at work (i.e. “4-on and 4-off”). Taking a full working week as 5 days, he therefore worked 4/5 of a full working week. He was on this working pattern at the start of April 2019.[36]On 18 January 2020 his working hours increased. He now worked 5 days per week (i.e. a full working week) from Friday to Tuesday inclusive. This was his working pattern at the end of March 2020. Page 5 of 12 The need to book leave and restrictions[37]The respondent requires adequate cover of its hygiene team. To achieve that it limits the number of people who may take leave at any one time.[38]Mr Ekoue says he was not aware of any requirement to give adequate notice of the need to book holiday. I reject his evidence on this.[39]Firstly there is a document called the Bradgate Brief. This is a newsletter for staff. The newsletter on 27 January 2020 highlighted issues with quality and customer complaints about plastic. The newsletter also said: “Holidays: A reminder to book any outstanding holidays you may have as we are fast approaching the end of the holiday year.” Mr Ball told me that managers or team leaders would brief employees in their team on the contents. I accept this. It is an inherently plausible process. It would seem counterintuitive for example to write a document about e.g. quality issues and complaints about plastic but then not take active steps to draw the attention of staff members to them. I see no reason why the respondent would write about the need to take holidays but then not highlight it at the meeting.[40]I also accept that the newsletter was put on a staff noticeboard. Mr Ekoue complained there were a lot of documents on the notice board. That may be so. However he did not suggest it was never put there or that he was denied a reasonable opportunity to read it.[41]It also seems to me to be inherently plausible that this issue about booking holidays was raised. There is no benefit to this respondent of staff not taking their leave – their processes are set up to accommodate it. In addition it is common sense that requesting holiday at the last moment it likely to be more difficult to accommodate that requesting it in advance. Therefore I think it is more credible the respondent would highlight this to promote the smooth running of their operation.[42]Finally the respondent’s letter to Mr Ekoue on 1 April 2020 on the topic of why they refused him leave mentions that the issue of giving plenty of notice was raised on 6 and 27 January and 3 February 2020. I have no reason to doubt the accuracy of those dates.[43]The letter also referred to the handbook which says “All holidays must be taken in the current holiday year and may not be carried over into the following year or paid in lieu. All holidays should be booked at least two weeks in advance and must be authorised by your team leader/manager and will normally be given on a first come first served basis.” I was not taken to the handbook. However Mr Ekoue did not suggest this quote was incorrect or that he was denied access to the handbook. Given my findings above and the nature of the work, I accept the handbook says this and he would have had reasonable access to it Page 6 of 12 His attempts to book leave[44]On 4 March 2020 Mr Ekoue tried to book 8 days of holiday. The respondent was able to allocate only 5 days of the requested leave otherwise they would be short-staffed.[45]On 25 March 2020 Mr Ekoue complained he had been denied the opportunity to take leave and sought payment for the days he was unable to take.[46]The respondent replied on 1 April 2020 as quoted above. Payslips, holiday entitlement and holiday taken[47]The respondent conceded for simplicity that Mr Ekoue worked 3/4ths of the year at 4-on and 4-off, and 1/4 of the year on a 5-day week. Strictly, because the change was mid-January it is not quite accurate, because he spent less than 3 months of the April 2019-March 2020 year on a 5-day week. However it is more favourable to the claimant to take the respondent’s concession, so I do so.[48]The respondent calculated his entitlement therefore for April 2019 to March 2020 as follows = 3/4 x 20 + 1/4 x 28 = 15 + 7 = 21 days[49]I accept this calculation is accurate. It reflects the number of days worked and how it divides over the year in which Mr Ekoue’s working pattern changed from 4-on 4-off to 5 days per week.[50]Examination of the payslips shows that between April 2019 and March 2020 he took 22 days leave for which he was paid. Mr Ekoue has not shown me any days where he took holiday but was not paid. Denial of leave[51]Mr Ekoue was denied 3 days leave that he wanted to take when he made his request at the start of March 2020.[52]Regulation 15(1) of the Working Time Regulations 1998 required Mr Ekoue to give notice of his intention to take leave that is twice as long as the leave he wanted to take.[53]Regulation 15(2) and 15(4) entitles an employer to prevent a person taking leave provided they give notice that is twice as many days in advance of the notice declining leave as the length of leave which the employer wishes to stop the employee taking leave. It is recognised that this may result in an employee losing their entitlement to holiday where the employer does not act unreasonably: Lyons v Mitie Security [2010] ICR 628 (EAT).[54]I am satisfied that the respondent denial of leave was reasonable. Firstly they did grant him the majority of this leave. It seems implausible they would grant him the majority of his leave but then unreasonably deny him 3 days. Secondly his request was late, even though he had been reminded on 3 occasions, in the staff handbook and in the staff bulletin to book early. I Page 7 of 12 accept the respondents require a minimum number of members of the team to be present. This is a food production business and hygiene is obviously important. It is reasonable and plausible they would not go below the numbers of hygiene operatives required to maintain a safe place of work.[55]Mr Ekoue did not complain that the respondent failed to give him sufficient notice of the denial of his request. Therefore I have no reason to doubt that the respondent complied with the notice requirements when declining his request. Time for bringing the claim[56]I have not gone into the detail of establishing the exact date that Mr Ekoue accrued the right to bring a claim. It is on any case about 1 April 2020 at the latest. On a rough calculation therefore he had until about 30 June 2020 to present a claim. Whatever the precise start and end date, it is plain his claim was presented well outside of the 3-month time limit.[57]He did not commence early conciliation until nearly 5 months later and well outside the time limit for presenting a claim. He also delayed for more than a month after conciliation ended.[58]He provided no evidence to me about why it was not reasonably practicable for him to bring the claim in time. He told me he had spoken to ACAS on a number of occasions, showing he was capable of seeking advice. He did not suggest they misled him about the time limit. He also presented a claim on 26 June which shows he knew how to present claims to the Tribunal and was capable of presenting them. Law and conclusions Time limit[59]I have already identified the relevant time limit is 3 months, and test for extending time limits depends on whether it was not reasonably practicable to present the claim in time, and if not, whether he presented within a reasonable time thereafter.[60]Previous cases have explained the approach I should take to whether something was reasonably practicable. 60.1. The words should be given a ‘liberal construction in favour of the employee’ Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53 (CA); 60.2. It is a factual question: Wall’s Meat Co Ltd v Khan 1979 ICR 52 (CA); 60.3. It is for the claimant to prove it was not reasonably practicable to present the claim in time. 60.4. The focus is on what could be done: Schultz v Esso Petroleum Co Ltd [1999] ICR 1202 (CA); Asda Stores Ltd v Kauser EAT 0165/07 (EAT).[61]I conclude that it was reasonably practicable to bring the claims in time. He has provided no evidence from which I could conclude it was not reasonably practicable for him to present the claim either. In addition he has shown he Page 8 of 12 was capable of presenting claims much earlier than he presented this claim and of presenting claims before the time limit expired (because he did so), he could take advice or guidance (because he spoke to ACAS), he delayed for a further month after conciliation and has not explained that delay.[62]It follows the claim is out of time. I do not have jurisdiction to consider it. Therefore it is dismissed. Alternative
Conclusions
[63]Alternatively I would have dismissed the claim on the merits anyway. He was entitled to 21 days of paid leave in the April 2019-March 2020 holiday year. He took 22 days. The payslips show he was paid for all of those days. Therefore he has not suffered a loss.[64]As I noted above, strictly the complaint he was denied leave is not one before me. However I have heard evidence and can comment on it. If it were a claim before me I would have dismissed it. Based on my findings of fact he requested leave too late. He had been warned of the need to make a prompt request. He did not do so. The respondent accommodated him so far as possible. They could not accommodate 3 of the days requested. Based on my findings of fact, that refusal to let him take leave was reasonable because it would have adversely impacted the respondent’s hygiene requirements at short notice. There is no suggestion the respondent gave insufficient notice. The sick pay claim[65]This claim consists of 2 parts: 65.1. Part I: An alleged underpayment of statutory sick pay for the week ending 4 June 2020; 65.2. Part II: An alleged underpayment of the same on 6 August 2020.[66]This is a claim for unauthorised deductions from wages under the Employment Rights Act 1996 part II. Time limits[67]Without deciding, I treat these both as a series of deductions. It is most beneficial to the claimant to do so. Time starts to run therefore from 6 August. The last day to present a claim is 5 November 2020. The claimant did not do so.[68]I repeat the facts above about the lack of evidence to show it was not reasonably practicable for him to bring a claim, that he was able to present a claim in June. I also repeat the law about time limits and how to apply the test of reasonable practicability.[69]For the same reasons set out above, I am satisfied that it was reasonably practicable for the claimant to have presented his claim in time. Therefore the claims were presented too late. I have no jurisdiction to consider them. I would therefore dismiss them.[70]However even if they were in time (or I extended it), the only remedy I would have granted is a declaration that part of the claim was well-founded. I would not have awarded compensation. Page 9 of 12 I set out my reasons below. Part I
Background
[72]The claim revolves around the following facts: 72.1. Mr Ekoue has a period of sickness leave. 72.2. He was entitled to statutory sick pay. Though he claims a higher rate of statutory sick pay, at the time the weekly rate was £95.85 per week and that is what I will work with. 72.3. In his pay slip for week 9 (week ending 4 June 2020, when he worked 5 days per week) he was away from work for 5 days. He therefore should have received £95.85. In fact he received £76.68. He was short one day’s pay of £19.17 72.4. In his pay slip for week 10 (week ending 11 June 2020) he received £115.02. This is equal to 1 week and one day of statutory sick pay.[73]Mr Ekoue said the payslips were incorrect. However he did not allege he did not receive the monies that the payslips say he should have received. Rather he says that he should have received a full week’s statutory sick pay in week 9 – i.e. the figure was wrong.[74]The respondent is not able to explain why week 9’s figure was short by one day. They aver it could be anything from a mistake to late notification of sickness meaning the payroll could not be accurately processed. In my view that is not good enough. The respondent has or should have available to it sufficient records to be able to explain what appears to be at best unusual and at worst an error.[75]Therefore I am left with the following: 75.1. Common ground that the claimant was entitled to a week’s statutory sick pay for weeks 9 and 10, 75.2. Common ground that he was underpaid by one day in week 9, 75.3. No satisfactory explanation about why that occurred or on what basis it occurred. In my opinion speculation about the cause is not good enough because it is not evidence, and 75.4. Nothing in the contract of employment or any other written document that shows the claimant consented to be paid less in week 9 than the week’s statutory sick pay to which he was entitled.[76]Claims for statutory sick pay are actionable as claims for unauthorised deductions from wages because they fall within the Employment Rights Act 1996 section 13 and the definition of wages. None of the exceptions in section 14 would apply.[78]In my opinion there was an unauthorised deduction from wages in the circumstances of this case. Applying section 24 I would therefore have had to declare this part of the claim well founded. Page 10 of 12[79]However I would have awarded no compensation for the following reasons:[80]Mr Ekoue made no claim for ancillary compensation for things like extra charges he incurred from his bank because of the shortfall. The law does not entitle me to award compensation for “inconvenience” or “injury to feelings”. Section 24(2) is limited to “financial losses”. This Tribunal has also taken this same view before: see Richardson v Howards Garage (Weston) Ltd ET Case No.1401179/12. While it is not binding, I remind myself I should only depart from prior decisions of this Tribunal if I consider the earlier decision to be wrong. I do not. Therefore there is no compensation due on this ground.[81]Section 24 would require me to order the payment of the unpaid wages, in this case £19.17. However section 25(3) requires me to reduce the amount by any sum that the respondent appears to have already paid in respect of the unauthorised deduction. The payslip for week 10 contains an extra day’s payment. That extra is £19.17 – the amount of the underpayment the previous week. I would therefore have applied this provision and concluded that the claimant has already been compensated for the deduction. The amount due on this ground is also zero. Part II[82]There is a second aspect to this claim. Mr Ekoue complains he was away ill and so entitled to statutory sick pay in week 18. The pay slip is dated 6 August 2020. He was in fact paid statutory sick pay for only 3 days at the rate of £19.17 per day.[83]Because he is paid 1 week in arrears (see his contract) I accept the respondent’s contention this payslip refers to the week 26 July to 1 August 2020. In that period he had 3 working days: Sunday 26, Monday 27 and Tuesday 28 July 2020. His next working day would have Friday 31 July 2020 and Saturday 1 August 2020. He was paid therefore for these 3 working days when away ill.[84]Correspondence between the parties (in particular the respondent’s letter of 31 July 2020 written by Ms T Gibson) confirm Mr Ekoue commenced paternity leave on 31 July 2020. He was not therefore absent for sickness – whether or not he was sick. Therefore he had no entitlement to statutory sick pay for those days. He had no entitlement to statutory sick pay in the period 29 or 30 July 2020 because he was not absent from work because of illness.[85]I am satisfied he has been paid what he was owed. Therefore this part of the claim would have failed. The shared parental leave pay claim[86]The circumstances are as follows: 86.1. On 7 August 2020 the claimant’s application for shared parental leave was received by the respondent. The application was a “birth” case as opposed to an “adoption” case. 86.2. He requested 52 weeks of leave from 19 July 2020 to 18 July 2021. Page 11 of 12 86.3. There was a discussion between Ms M Berry and the claimant evidenced by hand-written notes she made. In summary she explained to him that he was not entitled to 52 weeks off – it had to be shared with the mother and take account of any maternity leave she was taking. On 1 September 2020 he confirmed his partner and he had agreed he would take 24 weeks. 86.4. Me Ekoue completed an amended request for shared parental leave and signed it on 10 September 2020. On the form he claimed his 24 weeks but acknowledged he would be paid only for 11 weeks. 86.5. His leave began the next day: 11 September 2020.[87]The effect of the Statutory Shared Parental Pay (General) Regulations 2014 regulation 10 is that the maximum amount of paid leave is 39 weeks and it is apportioned between mother and father. Mother had taken 4 weeks of maternity leave and 24 weeks of shared parental leave. Therefore there was only 39-24-4 = 11 weeks available of paid leave available.[88]I have considered the payslips. They show that in total 11 weeks of shared parental pay was paid to Mr Ekoue.[89]It is correct that in the first week (recorded on payslip for week 24, paid 17 September 2020) he was paid only £43.20 gross of statutory shared parental pay instead of £151.20: in other words 2 days statutory shared parental leave pay. I am satisfied this is because of when his leave started on 11 September 2020. Only that and 12 September 2020 would have appeared on his payslip.[90]It is also correct that his final payment of shared parental pay was only for 5 days. This was because that was all that remained at the end of the 11 weeks.[91]I conclude he has received what he was entitled to when he was entitled to it. Therefore this claim must fail.