Ms M Bata v Team Support and Serco Ltd: 3201683/2018
JUDGMENT
After hearing the Claimant’s submissions, it is this Tribunal’s judgment that:[1]The complaints against both Respondents for unlawful deduction of wages was not presented in time despite it being reasonably practicable to do so.[2]The claims are dismissed. JUDGMENT having been sent to the parties on 8 November 2018 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.REASONS
[1]The Claimant brought a complaint of unlawful deduction of wages in the form of unpaid holiday pay.[2]Both Respondents took the position that there was no money owed to the Claimant. The Second Respondent’s case was that the Claimant was not its employee but had been an agency worker engaged through the First Respondent. The Second Respondent submitted that it had not contract with the Claimant and was not responsible for paying her wages or her holiday pay.[3]The First Respondent’s case was that the Claimant had been paid all holiday money that had been accrued. Its case was that all outstanding money had been paid to her.[4]The first issue for the Tribunal to determine was whether it had jurisdiction to hear the Claimant’s claim. Had the Claimant brought her Tribunal claim in time and if not, did the Tribunal have jurisdiction to consider it? These were the questions that the Tribunal had to decide before it could go on and determine the claim that the Claimant brings against the two Respondents.[5]In determining whether the claim was issued in time, the Tribunal heard evidence from the Claimant and then submissions from all three parties in this matter.[6]In considering the evidence on the time limit issue the Tribunal applied the following law.Law
[7]Section 13 of the Employment Rights Act 1996 states that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision (i.e. tax) or a relevant provision of the worker’s contract or the worker has previously signified in writing her agreement or consent to the making of the deduction.[8]Regulation 13 of the Working Time Regulations 1998 (WTR) establishes the right to 4 weeks annual leave in each leave year. Regulation 14 WTR states that it applies where a worker’s employment terminates during the course of the leave year. If, on the date when the worker’s employment is terminated, the proportion she has taken of the leave to which she is entitled in the leave year is different from the proportion of the leave year which has expired. In the circumstances where the proportion of leave taken by the worker is less than the proportion of the leave that has expired, the employer shall make a payment to the worker in lieu of leave accrued but untaken.[9]Regulation 30 sets out how the worker can enforce these rights.[10]To do so the worker can present a complaint to an Employment Tribunal. Regulation 30(2) states that an Employment Tribunal shall not consider a complaint under this regulation unless it is presented(a) before the end of the period of three months beginning with the date on which it is alleged that the payment should be made;(b) 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.[11]How does a tribunal decide whether it was reasonably practicable to present a claim in time? And if it was not, what is a reasonable time thereafter?[12]The law states that the question of what is or is not reasonably practicable is essentially one of fact for the Employment Tribunal to decide. In the case of Walls Meat Co Ltd v Khan [1979] ICR 52 CA Lord Denning explained the test like this: ‘It is simply to ask this question: had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights -- or ignorance of the time limit -- is not just cause or excuse unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault and he must take the consequences.”[13]The issue was referred to in the case of Palmer and Saunders v Southend-onSea Borough Council [1984] 1 All ER 945. In that case May LJ reviewed the authorities and stated as follows: “’reasonably practicable” means more than merely what is reasonably capable physically of being done……. Perhaps to read the word “practicable” as the equivalent of ”feasible” ……. And to ask colloquially and untrammelled by too much legal logic -- was it reasonably feasible to present the complaint to the employment tribunal within the relevant three months?”-- Is the best approach to the correct application of the relevant subsection”.[14]In the case of Schulz v Esso Petroleum Ltd [1999] IRLR 488 it was stated by the Court of Appeal that the tribunal must answer this question against the background of the surrounding circumstances and the aim to be achieved.[15]Where the Claimant satisfies the Tribunal that it was not reasonably practicable to present her claim in time, the Tribunal must then go on to consider whether it was presented within a reasonable time thereafter. In making this assessment the Tribunal must exercise its discretion reasonably and with due regard to the circumstances of the delay the Tribunal has to look at the particular circumstances of each case and make a decision.[16]In the case of James W Cook & Co. (Wivenhoe) Ltd v Tipper [1990] IRLR 386 – a period of two weeks delay in issuing after the deadline had passed was held to be reasonable and in the case of Walls Meat referred to above, four weeks was held to be reasonable on the particular facts of that case.[17]Section 207B of the Employment Rights Act 1996 sets out how time limits in claims such as the Claimant’s, are affected by the ACAS early conciliation process. Day A is the day on which the complainant begins the early conciliation process by contacting ACAS before starting proceedings. Day B is the day on which the complainant receives the early conciliation certificate. In working out when the time limit set by Regulation 30 above expires, the period beginning with Day A and ending with Day B is not to be counted.[18]If a time limit set by a relevant provision (such as Regulation 30 of the Working Time Regulations 1998 as set out above) would (if not extended by this subsection) expire during the period beginning with Day A and ending a month after Day B, the time limit expires instead at the end of the period.Findings of Fact
[19]The Tribunal made the following findings of fact from the Claimant’s evidence.[20]The Claimant complained that the Respondents had not paid her any holiday pay.[21]She stated that in July 2018, she met the manager and asked about her outstanding holiday and she was informed that she had 2 weeks that were outstanding.[22]He got a form for her to complete and informed the Claimant that she would be paid her outstanding holiday pay in her final payslip.[23]She did not get the payment in her payslip and asked again about her holiday pay. The Claimant was informed that the First Respondent had a problem on its systems but she was reassured that she would be paid her outstanding holiday pay.[24]The Claimant sent an email chasing up her holiday pay. On 17 February she started working with another agency but only worked 2 days with it before she says that she was pushed out.[25]The Claimant’s engagement with the Respondents began on 14 April 2017 and ended on 23 February 2018.[26]The Claimant went to the CAB in March for advice on her right to claim against the Respondents for her holiday pay.[27]She found another job in April. The Claimant also complained that she had to arrive and be ready to work before her shift started and the Respondent’s position was that they could not count that time as working time.[28]She only worked at Whipps Cross Hospital for the agency.[29]She also did not agree that SERCO should be released from the case.[30]The First Respondent confirmed that the last day the Claimant worked was 14 February and that the relevant pay period was the week ending 23 February.[31]Team Support asked that SERCO should be released from the case. The First Respondent agreed that SERCO was the company in which the Claimant was placed to work and that she had no legal relationship with it. It was submitted that SERCO simply confirmed the hours worked by the Claimant whilst she was assigned to them.[32]There was a meeting between the parties on 4 September after the Respondent received notice of the claim on 14 August in which the Respondent explained to the Claimant that it had paid all holiday pay that had been due to her. There had also been discussions with ACAS prior to and after this meeting.[33]It is the Respondent’s case that the Claimant has been paid all holiday pay owed to her. Team Support Staff Ltd contended that the Claimant may be owed holiday pay from the organisation that employed her from 17 February 2017 to 7 April 2017, the week before she began working for it. The First Respondent provided her the details of the administrators of that company so that she could claim outstanding holiday pay from them. It was the First Respondent’s case that it does not owe her any holiday pay.[34]The Claimant confirmed that she was waiting for the certificate from ACAS before she could issue her claim. She received her ACAS certificates in May/June. one certificate is dated 22 May 2018 and the other was dated 20 June 2018. It was her evidence that she went back to the CAB to check the contents of the draft ET1.[35]She initially stated that she only went to the CAB three times early on in the time period, in March. Later in her evidence, when discussing what happened with the ET1 form, she stated that she took it to the CAB in June so that they could check it before she submitted it. She then stated, after I asked her of her understanding and from what the CAB told her; of the date she should start counting the period of 3 months, that she thought the 3 months started after contacting ACAS. She then said that she had not got the ET letter dated 14 August to inform her that this would be an open preliminary hearing to determine whether we had jurisdiction. However, that is unlikely to be true as the notice of today’s hearing and the letter were sent together. If she had not got the letter, she would not have been at this hearing. She confirmed that the address was still correct.[36]The Claimant visited the CAB around 3 times in total before issuing her claim at the Employment Tribunal. The Claimant believed that she had three months to contact ACAS. It was not clear why she believed this after she had been to ACAS. The Claimant confirmed that she had correspondence from ACAS and that she had received advice on the 3-month time limit from the CAB.[37]It was not clear to the Tribunal what the Claimant was doing between May and August 2018.[38]The Claimant issued two separate claims against the two Respondents on 2 August 2018. The Claimant was advised by the Tribunal by letter dated 14 August that the claims had been presented outside of the time limit set down for these claims and that there would be a preliminary hearing to determine whether it had been reasonably practicable for the claims to have been issued in time. Judgment[39]It is this Tribunal’s judgment that the Claimant has not issued her ET1 complaint forms in time. Her employment or her engagement with the First Respondent, Team Support, ended on 23 February. The last pay period in which she could have expected to receive her outstanding holiday pay would have been 28 February 2018.[40]The Claimant has not provided sufficient information for the Employment Tribunal to make a judgment that it was not reasonably practicable for her to issue her claim in time.[41]The Claimant had advice from the CAB in March about her claim and that she had three months to issue it.[42]Although it was her evidence that she thought that it was three months to contact ACAS or to contact the Tribunal after getting the certificate from ACAS, it is this Tribunal’s judgment that it is likely that she was given correct advice from the CAB and from ACAS. The Tribunal takes judicial notice that ACAS usually send an email to prospective Claimants accompanying the certificate, informing them of what they have to do once they have received the certificate. That would usually include information about the 3-month time limit. In any event, she would also have been given correct advice by the CAB. The Claimant’s evidence lacked some credibility around receipt of the notice of hearing and it is this Tribunal’s judgment that it was more likely than not that she obtained correct advice from the CAB and ACAS.[43]The Claimant issued the claim on 2 August. She received the ACAS certificates on 22 May and 20 June respectively. She had no explanation as to what she did after that and why it took her so long to complete the ET1 afterwards.[44]The Claimant’s last working period with the Respondent was 23 February 2018. Her conciliation period ended on 22 May in relation to her claim the First Respondent and against the Second Respondent the conciliation period ended on 22 June. The conciliation period for the claim against the First Respondent was one day and from 22 May to 22 June, one month for the claim against SERCO, the Second Respondent.[45]The claim against the First Respondent should have been presented to the Tribunal one month after the end of the conciliation period, by 22 June 2018. The claim against the Second Respondent should have been presented one month after the end of the conciliation period, by 22 July 2018. They were both presented on 2 August. It is this Tribunal’s judgment that they were issued outside of the time limit.[46]It is this Tribunal’s judgment that it is highly likely that the Claimant had correct advice about the time limits applicable to these claims. Also, that she was told that she had to issue the claim within 3 months of the last date on which she could have been paid her holiday pay.[47]The Tribunal is satisfied that the Claimant had been in possession of her ACAS certificates and advice well before the expiration of the deadline for issuing her ET1 claim forms. She confirmed that she had them in June.[48]It is not clear what happened between then and the claims being issued on 2 August. The Claimant had sufficient time to issue her claims. The Claimant did not give the Tribunal anything upon which it could reach the conclusion that it was not reasonably practicable or reasonably feasible for her to have issue her claim in time[49]The Claimant’s claims were issued outside of the statutory time limit as extended by the ACAS early conciliation process. It was reasonably practicable for the Claimant to have issued her claims in time.[50]The Tribunal has no jurisdiction to consider her claims against either the First or Second Respondents.[51]The claims are dismissed.