M I N Ashraf v Sinomax International Ltd: 3201072/2024
EMPLOYMENT TRIBUNALS
Case No 3201072/2024
Between
Mohammed Ijaz Nellikkunnu AshrafClaimantSinomax International LimitedRespondent
Before
Employment Judge S PoveyNot represented for claimantDate 17 March 2026
JUDGMENT
[1]The complaint of unauthorised deductions from wages was presented out of time. It was reasonably practicable for it to have been presented in time. As such, the Tribunal has no jurisdiction to determine it, it has no reasonable prospects of success, and it is struck out.[2]The complaint of discrimination on grounds of religion was presented out of time and not within such other period as was just and equitable. As such, the Tribunal has no jurisdiction to determine it, it has no reasonable prosects of success and it is struck out.
REASONS
[1]The Claimant brings complaints of unauthorised deductions from wages and discrimination on grounds of religion, against his former employer, the Respondent. The Claimant was employed as a Support Worker from 15 July 2023 until 11 December 2023. He started ACAS Early Conciliation on 15 March 2024 and it ended on 26 April 2024. He presented his claim to the Tribunal on 26 April 2024. The claim is resisted in its entirety by the Respondent. - 1 -[2]This hearing was ordered by Employment Judge Park at a case management hearing on 19 May 2025 (subject to further directions issued by Employment Judge Park on 9 September 2025 and an amended Notice of hearing, issued by the Tribunal on 10 December 2025). The purpose of the hearing was four-fold: 2.1. Decide any contested application to amend the claim; 2.2. Finalise the issues in the case; 2.3. Determine whether the claims were out of time (or decide to leave that to be determined at the final hearing); 2.4. Undertake such case management as was appropriate.[3]On the issue of time limits, the Respondent had raised in its response to the claim that there were issues as to whether the claim had been presented in time and applied for the claims to be struck out on that basis.[4]Given the inclusion of Paragraph 2.3 above, Employment Judge Park ordered that the next hearing be held in public. She also made specific directions for the parties to provide any documents they wanted to rely on regarding the Respondent’s application to strike out the claim on the grounds that it was presented out of time.[5]As such, the parties have been on notice from at least 19 May 2025 that the issue with time limits would be considered at this hearing.[6]Notwithstanding all those measures: 6.1. The Claimant did not provide any documents, evidence or submissions in response to the Respondent’s application to strike out the claim on grounds that it was presented out of time; 6.2. The Claimant did not attend the hearing, despite receiving the case management orders and notice of hearing, despite attempts by my clerk to ring him this morning (all calls went straight to voicemail), despite my clerk emailing him, and despite the start of the hearing being delayed until 10.30am. Indeed, by the conclusion of the haring, at 11.30am, the Claimant had still failed to attend; and 6.3. The Claimant had not applied to postpone the hearing or provide any explanation for his decision not to attend.[7]Given those factors, I concluded that it was in the interests of justice and consistent with the overriding objective to proceed with the hearing in the Claimant’s absence.[8]Following the hearing on 19 May 2025, the Claimant did provide further details of his unauthorised deduction and religious discrimination complaints. From those, it was possible to discern the following: - 2 - 8.1. The unauthorised deduction from wages complaint relates to a single deduction from the Claimant’s wages on 8 December 2023. The Respondent does not deny that a deduction was made. The issue is whether it was authorised (the Respondent says that it was authorised under the terms of the Claimant’s contract, on the basis that he did not work his notice period). 8.2. The complaint of discrimination on grounds of religion relates to a request by the Claimant for time off to attend Friday prayers on 22 September 2023. The request appears to have first been made on the evening of 16 September 2023, remade on 18 September 2023 and refused on 20 September 2023.[9]I concluded that it was consistent with the overriding objective to determine the issue of time limits at this hearing, rather than roll it up for determination at a final hearing. On the Claimant’s case as currently presented, there is no suggestion of a continuing act of discrimination or a series of unauthorised deductions. Rather, there are two distinct and discrete allegations. In the alternative, if the Claimant were to claim that refusing him time off to attend Friday prayers continued until the end of his employment, it would still be the case that the last conceivable act of alleged discrimination would have been on Friday 8 December 2023, when he resigned (his resignation taking effect on 11 December 2023).[10]In other words, it was not necessary for there to further, detailed fact-finding as to the dates and times of the allegations being pursued, before being able to determine whether they had been presented out of time. As the issue of time limits went to whether the Tribunal had the jurisdiction to decide the complaints at all, it was appropriate to decide them as a preliminary issue.[11]I heard oral submissions from Mr Fraiel for the Respondent, before taking time to consider and reach my decisions. The applicable law Time limits: unauthorised deductions from wages
The applicable law
[12]The time limits for complaints of unauthorised deductions from wages is before the end of the period of three months from the date of the payment of the wages from which the deduction was made, subject to the provisions regarding ACAS Early Conciliation, per sections 23(2), 23(3A) & 207B of the Employment Rights Act 1996 (‘ERA 1996’).[13]Where a complaint is brought in respect of a series of deductions, the time limit runs from the last of those deductions (per section 23(3) of the ERA 1996).[14]If complaints are not presented within the requisite three month time limits, they can only proceed if the Claimant can show that they were presented within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. - 3 -[15]In effect, the Claimant must show that it was not reasonably practicable to present the complaints in time. If he cannot, the Tribunal has no jurisdiction to consider and determine those complaints. If he can, he must also show that the complaints were presented within a further period which in itself was reasonable.[16]In considering whether the test of reasonable practicability has been made out, the Tribunal should adopt a liberal interpretation in favour of the employee, regard should be had to what, if anything, the employee knew about the right to complain the Tribunal (including the time limits to do so) and also to what knowledge the employee should have had, had they acted reasonably in the circumstances (per Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ. 470). Time limits: discrimination on grounds of religion[17]The time limits for presenting discrimination claims are in section 123(1) of the Equality Act 2010 (‘the EqA’): (1) Subject to section 140B proceedings on a complaint within section 120 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 employment tribunal thinks just and equitable.[18]If a complaint is presented out of time and not within another period which is just and equitable, the Tribunal has no power to consider it. However, for the purposes of calculating when the three-month period begins to run, conduct extending over a period of time is treated as having been done at the end of the period (per section 123(3)(a) of the EqA 2010).[19]The Tribunal has a wide discretion when considering whether it is just and equitable to extend time (Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ. 576; Jones v Secretary of State for Health and Social Care [2024] EAT 2). When a claimant applies to extend time under section 123(1)(b), it is for them to show that the extension is just and equitable (Polystar Plastic Ltd v Liepa [2023] EAT 100). 20. ‘Just and equitable’ includes consideration of why the claim was presented out of time and what the respective prejudice to the parties would be if time was or was not extended (such that the claim could or could not proceed). The discretion is wide enough to also include a consideration of the merits of the case being pursued (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132). The Tribunal’s procedure rules[21]Rule 3 of The Employment Tribunal Procedure Rules 2024 (‘the Procedure Rules’) details the overriding objective to the Procedure Rules, as follows: - 4 - 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing,(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues,(c) avoiding unnecessary formality and seeking flexibility in the proceedings,(d) avoiding delay, so far as compatible with proper consideration of the issues, and(e) saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it – (a) exercises any power under these Rules, or (b) interprets any rule or practice direction. (4) The parties and their representatives must – (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.[22]Rule 38 of the Procedure Rules deals with the striking out of claims and responses and includes the following (so far as relevant): 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds – (a) that it is scandalous or vexatious or has no reasonable prospect of success; … (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. …[23]Rule 41 of the Procedure Rules contains general rules common to all hearings. It includes the following at Rule 41(1): The Tribunal may regulate its own procedure and must conduct any hearing in the manner it considers fair, having regard to the overriding objective. - 5 - Findings & conclusions[24]Based on the above chronology, both complaints were presented out of time. Neither derived any benefit from the ACAS Early Conciliation ‘stop the clock’ provisions, since the three months time limits had elapsed by the time the Claimant started Early Conciliation. The clock is only stopped if Early Conciliation is started within the time limits set by statute.[25]The two complaints were out of time, as follows: 25.1. The time limit for presenting the unauthorised deductions from wages claim was 7 March 2024 (within three months of the date of payment of the wages from which the deduction was made, namely 8 December 2023). 25.2. The time limit for presenting the discrimination complaint was 19 December 2023, being three months from the decision of 20 September 2023 to refuse the Claimant’s request for time off to attend Friday prayers.[26]The Claimant did not begin ACAS early Conciliation until 15 March 2024, by which time both complaints were already out of time.[27]As such, the Claimant was reliant on the Tribunal exercising the discretions afforded to it by the ERA 1996 and the EqA 2010.[28]However, the Claimant has provided no explanations whatsoever for why it was not reasonably practicable to present his wages complaint in time or whether, thereafter, he presented it within such other time as was reasonable.[29]Similarly, the Claimant has provided not explanation for why he presented his discrimination complaint out of time or why he says it was presented within such other period as was just and equitable.[30]In addition, and as explained, the Claimant has not attended the hearing today, did not he apply for the hearing to be postponed, and has provided no explanation for why he has chosen not to attend.[31]Without any explanation, evidence or submissions from the Claimant, I have no basis to exercise the discretions afforded to me by the legislation.[32]I am therefore unable to find that it was not reasonably practicable for the Claimant to present his complaint of unauthorised deductions from wages in time. On that basis alone, I have no power to extend time, the Tribunal has no jurisdiction to consider it, it has no reasonable prospects of success and it is struck out. - 6 -[33]Similarly, there is no basis to find that complaint of discrimination on grounds of religion was presented within such other period as was just and equitable. It follows that Tribunal has no jurisdiction to consider it, it has no reasonable prospects of success and it, too, is struck out. Approved by: