Employment Judge Allen sitting aloneIn person for claimantMr Ian Wheaton (instructed by Counsel) for respondentDate 29 April 2022
JUDGMENT
The claim filed with the tribunal on 19 March 2020 and notified to Acas on 20 January 2020 is out of time and the Tribunal does not have jurisdiction to hear it. The claim is dismissed.
REASONS
[1]The claimant’s claim arose out of employment with the respondent in 2019. She last worked a shift on 29 July 2019. The claimant was also invited to do some graphic design work on fixed term contract which finished on 30 September 2019. Statutory time limit expired on the last day of December 2019. The claimant notified Acas of her claim on 20 January 2020 Case Number: 3303358/2020 (certificated issued on 20 February 2020). The claimant filed her ET1 claim form on 19 March 2020.[2]The claim was filed out of time and the tribunal does not have jurisdiction to hear it. The claim is dismissed. Respondent’s Application for costs against the Claimant[3]Respondent’s application for costs against the claimant is refused on the grounds there was insufficient information on the claimant’s means to make an award.[1]Under Rule 72 of the Employment Tribunals Rules of Procedure 2013, the Employment Judge has considered the Claimant’s application for reconsideration and has determined that the judgment should be varied, because the claimant experienced technical issues during the hearing and was not afforded an opportunity to be heard.[2]I am satisfied that given the judgment was made in the absence of the claimant and I have sufficient information to consider the claimant’s Application it is reasonable to do so without reference to the respondent. 9 July 2021 Full Mertis Hearing on the Cloud Virtual Platform[3]An hour before the hearing was due to commence the respondent sent a document entitled ‘Respondent’s note for final hearing on 9 July 2021’.[4]The claimant had received the document but it was in her junk mail folder. She asked for confirmation the respondent had received her revised statement and supplementary bundle. He had.[5]At 10:12 the hearing was adjourned until 10:25 to read the documents. The clerk put all parties into the CVP waiting room.[6]The claimant did not return at 10:25 and it was noted that she was not in the virtual waiting room. The court waited until 10:35 but there was no change; the claimant was still not in the virtual waiting room.[7]At 10:35 the hearing was adjourned until 10:45 for the clerk to make enquiries. The clerk telephoned the claimant and emailed her. Telephone calls went direct to voicemail where the clerk left a voice message. By 10:55 no response had been received from the claimant to either voicemail or email messages.[8]The respondent invited the court to proceed in absence in accordance with Rule 47.[9]Given the unsuccessful enquiries made by the clerk and the absence of any apparent attempt by the claimant to rejoin the hearing I continued the hearing in her absence.[10]In her Application the claimant asserts that following the adjournment at 10:12am: 10.1. She waited a few minutes in the CVP waiting room/lobby. 10.2. At 10:30am she was still waiting to be readmitted to the hearing. 10.3. At some point she lost the connection. 10.4. She repeated the steps to rejoin the hearing. 10.5. She looked at her phone and saw she had 2 missed calls at 10:31 and 10:32 from the tribunal clerk. 10.6. She noted that she had also received an email from the tribunal clerk at 10:37. 10.7. At 11:13 she replied to the clerk’s email.
Conclusion
[11]Under Rule 70, a judgment will only be reconsidered where it is necessary in the interests of justice to do so. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should be, so far as possible, finality of litigation.[12]The Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly. This obligation is provided in Rule 2 of the 2013 Regulations.[13]The procedure upon an application is for the Employment Judge that heard the case or gave the judgment in question to consider the application and determine if there are reasonable prospects of the original decision or judgment being varied or revoked. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision.[14]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC said “The interests of justice have thus long allowed for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”[15]HHJ Eady also referred in that case to the rules for reconsideration set out in the previous Employment Tribunal rules of procedure: “…the 2004 ET Rules, which governed the review of Judgments and other decisions; in particular, Rule 34(3): “Subject to paragraph (4), decisions may be reviewed on the following grounds only —(a) the decision was wrongly made as a result of an administrative error;(b) a party did not receive notice of the proceedings leading to the decision;(c) the decision was made in the absence of a party;(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or(e) the interests of justice require such a review.”[16]Those remain useful examples of the circumstances in which a reconsideration might be appropriate but are all, in reality, examples of circumstances where it may be in the interests of justice to reconsider the decision.[17]Applying paragraph 15 above to the circumstances on 9 July 2021 and in particular (c) and (e) I find it is in the interests of justice to reconsider the judgment in the circumstances.[18]Having said that the Employment Tribunal Rules require the Employment Judge under Rule 27 to consider all of the documents held by the Tribunal in relation to the claim, to confirm whether there are arguable complaints and defences within the jurisdiction of the Tribunal (and for that purpose the Judge may order a party to provide further information). Under Rule 27(1) If the Employment Judge considers that the Tribunal has no jurisdiction to consider the claim, or part of it, the Tribunal shall send a notice to the parties—(a) setting out the Judge’s view and the reasons for it; and(b) ordering that the claim, or the part in question, shall be dismissed on such date as is specified in the notice unless before that date the claimant has presented written representations to the Tribunal explaining why the claim (or part) should not be dismissed.[19]It is my view that the tribunal does not have jurisdiction to hear the claim for unfair dismissal. The respondent employed the claimant for 8 weeks in which time she was a camp leader and receptionist (this is not intended to be a comprehensive list of the roles she performed). She commenced on 30 May 2019 and performed her last shift on 29 July 2019. She also had the opportunity to use her graphic design skills in a separate project; no work was submitted to the respondent by the claimant on that project after 30 September 2019.[20]Claims of unfair dismissal brought in accordance with S94 ERA are subject to S108 of the same act and require a qualifying period of employment of not less than two years. Given the length of the claimant’s employment was less than two years this part of the claimant’s claim has no reasonable prospect of success. There are no circumstances in this case which would make a reconsideration of the decision to dismiss the unfair dismissal claim in the interests of justice.[21]Since the hearing proceeded in the claimant’s absence, she did not have an opportunity to advance facts which might explain that the filing of her claim was within the statutory time limits. I find that it is in the interests of justice to afford the claimant the opportunity to do that.[22]The Claimant’s application for reconsideration of the judgment made on 9 July 2021 succeeds in part for the reasons stated above under Rules 70 and 72 of the Employment Tribunals Rules 2013. The judgment promulgated to the parties on 2 August 2021 is varied. Other Matters[23]The claimant has requested a copy of the hearing record and transcript on the assumption the hearing is recorded; it wasn’t, nor .
Introduction
[24]In other words, the Court of Appeal made clear that if an employee did not know that he had been summarily dismissed (or purportedly so), then that would potentially be relevant to the EDT. Reasonable Practicability[25]When a claimant argues that it was not reasonably practicable to present the claim within the time limit, there are questions of fact for the tribunal to decide. In other words, whether it was, in fact, reasonably practicable or not. The onus of proving it was not is on the claimant. When doing so, the phrase “not reasonably practicable” should be given a liberal interpretation in favour of the Claimant.[26]If the tribunal is satisfied that it was not reasonably practicable to present the claim within the time limit, then it is necessary to consider whether the period between the expiry of the time limit and the eventual presentation of the claim was reasonable in the circumstances. This does not necessarily mean that the Claimant has to act as fast as would be reasonably practicable.[27]The fact that an employee pursued an internal appeals procedure is a relevant circumstance which can, and should, be considered by the tribunal. However, generally speaking, it is not usually enough by itself to make it "not reasonably practicable" for the complaint to be presented within the prescribed period, even if the employer is slow to announce the outcome. See the Court of Appeal’s review in Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA.[28]In Porter v Bandridge Ltd 1978 ICR 943, CA, the Court of Appeal held that the correct test is not whether the claimant knew of his rights but whether he ought to have known of them.[29]Similarly, when a claimant is ignorant about (or makes a mistake about) a fact which is relevant to the calculation of time limit, the question is whether that ignorance (or that mistake) is reasonable. The assessment of reasonableness has to take into account that a potential claimant ought to be aware of the importance of not missing a time limit. Put another way, even if it is true that the claimant did not know the true facts at the time of the dismissal, then that does not necessarily mean that it was not reasonably practicable to issue the claim in time. The claimant must also show that the ignorance was reasonable and that he could not reasonably have been expected to have discovered the true situation during the 7 of 18 limitation period. Furthermore, ignorance of the true facts must be the actual reason for failing to issue the claim sooner.
The Facts
[30]The Claimant commenced ACAS early conciliation on 20 January 2020 and it ended on 20 February 2020 (so that was “Day B”). She presented her claim on 19 March 2020, meaning that it was less than a month after “Day B”. Furthermore, the ACAS early conciliation started less than 3 months from 21 October 2019, but not less than 3 months from 20 October 2019.[31]In Box 5 of the claim form, the Claimant ticked to say her employment was continuing. Similarly, in section 4 of the attached particulars of claim, she used the heading “employment on hold without pay”.[32]The Notice of Claim, including claim form, and response pack, etc, was sent to the Respondent by letter dated 30 March 2020.[33]Page 2 of the supplementary bundle contains a letter sent to the Claimant at the same address used by her on the claim form (and also for the purposes of ACAS early conciliation). It was not the same address supplied by the Claimant to the Respondent on the “schedule to fixed-term contract” (page 178) in May 2019, or used by the Respondent in the payslips for August to October (pages 124 to 126) (or indeed on the P45 mentioned in the letter). The letter, dated 16 April 2020, stated that the Respondent (Vicki Anderson, director was the signatory) had “just realised” that there had been an oversight and the Claimant had not been paid accrued holiday pay for “the period of employment from 7th May 2019 to 1st October 2019”. The Respondent’s position is that it had always regarded the Claimant’s employment as having ended with effect 1 October 2019 (as per the letter, or else as per 30 September 2019) and the oversight had been to fail to issue P45 (or any other document referring to end of employment) or to pay, on termination, in lieu of accrued but unused holiday. It argues the 16 April 2020 letter had nothing to do with the Claimant’s having issued employment tribunal proceedings, and was simply (as mentioned in the letter and amplified before me in oral evidence) because Covid, and specifically its intention to use the Coronavirus Job Retention Scheme (CJRS), had caused it to check its records as to which “current” employees it had and this had, in turn, led it to realise that the Claimant – who it did not regard as a current employee – had not yet had the formalities completed.[34]For the purposes of the decisions that I have to make, I reject the explanation that it was (only) work being done because of CJRS that led to the letter and that it was (entirely) a coincidence that it had received the ET1 a short time before the letter. Given that the letter used the address from the litigation, which was different to the address held in the payroll records, I am satisfied that the Respondent had received the ET1, noted that the Claimant was claiming to be an on-going employee (and that she was not being paid) and decided to send the letter of 16 April 2020 as part of its intended defence to the claim.[35]The Claimant did not receive the letter until around August 2020 as, at the time, her mother was living at that address (the address to which the letter was sent, 8 of 18 and which appears on the claim form) whereas she was living at another property (the address as per the payslips). Due to Covid restrictions, she was not regularly collecting her mail sent to the other address.[36]On 24 April 2020, the Respondent submitted its response to the tribunal which asserted that the Claimant was not an on-going employee (see, in particular, paragraphs 27, 28 and 35 of that document).[37]The Respondent operates a swimming tuition and activity centre. It provides a range of services including swimming tuition for children and adults, pool parties, training courses, children's multi activity camps, breakfast and after school clubs.[38]At various times, the Claimant did different types of work for the Respondent, which I will call “camp work”, “reception work”, “after schools club work” and “graphic design work”. The “graphic design work” was also referred to by the parties as “badge work”, although there is a dispute between them about the exact nature of what was agreed about the work which was to be done. In each case, the start of the contract was in 2019, and the end dates will be discussed below.[39]The Claimant entered a contract to do some camp work (as “camp leader”) in May 2019. The Claimant does not allege that there were any deductions for that time period. This contract ended when the Claimant performed the last duties under it, around 31 May 2019.[40]To the extent that the Claimant argues that this was an on-going contract, under which she was either allocated zero hours or some hours each week, I reject that argument. It was a one off contract for work on that particular camp for that particular period. It did not imply that, if the Respondent had a new camp in the future, the Claimant would necessarily be allocated work, even if work was available and even if the Claimant was willing to do it. Rather, each fresh camp was regarded as a fresh exercise, for which the Respondent decided what work it needed to have done, and sought expressions of interest. Thus 31 May 2019 was the effective date of termination for the first camp work contract.[41]In the summer holidays of 2019, the Respondent had some camp work available and made enquiries of the Claimant to seek to find out if she was interested. She intended to do summer camp work and (on her case) she agreed to do that. The contract (179 to 187) was dated 10 June 2019, and included a schedule of work for the 6 weeks from the week starting 22 July 2019 to the week starting 27 August 2019. On the Claimant’s case she attended ready to work on 25 July 2019, but was told that there was no summer camp work that day and she was told to go to reception instead and work there instead. The effective date of termination of the second (and final) camp work contract was (it seems to me) 25 July 2019, but, at the latest, it was 31 July 2019 when the Claimant was told by the director, Vicki, that there was no (further) summer camp work available.[42]The claimant also alleges that she had a reception work contract. She alleges that during May 2019 she did training for the reception work and should have been paid for that (under the reception work contract) and she was not paid for it. Furthermore, she alleges on 4 June 2019 she was instructed to (and/or agreed to a request from the Respondent) do some extra hours that day, for which she was 9 of 18 not paid. The Respondent alleges that the regular reception work was a fixed term contract due to end on 23 July 2019. The Claimant alleges that it was ended prematurely and she believes that the last regular shift she did under that contract was on 18 July 2019. She did some ad hoc reception work after that on 29 July 2019. Thus, on the Claimant’s own case, it would seem to me that the effective date of termination of the reception work contract was 18 July 2019 (and that the ad hoc work on 29 July 2019 was a separate, one off, piece of work). However, at the latest, the effective date of termination for the reception work contract was 29 July 2019.[43]The alleged deductions in relation to the reception work contract relate to allegations that include the Claimant doing extra cover that she was not paid for, doing overtime that she was not paid for and training she was not paid for.[44]Furthermore she also she says that the respondent terminated the contract with effect 29 July and that (if I agree it has been properly pleaded, or else if I agree to allow an amendment) she is entitled to a finding of breach of contract (failure to give notice) in relation to the reception work contract. At Box 8.1 of the claim form, she had ticked the box for notice pay (as well as for holiday pay, arrears of pay, and other payments).[45]The Claimant also alleges that she had an after-school club contract. On page 176 of the bundle is a document which, on its face, says it is a fixed term contract for such work for the period 4 June 2019 to 23 July 2019. It says it is for 3 days per week, with the hours each day being 2 hours (or, if required, 2.5 hours). The Claimant does not allege that she worked on this contract on any dates later than 23 July 2019 (and, on the contrary, suggests it was terminated prematurely around 18 July 2019). She alleges unauthorised deduction from that contract as well. The effective date of termination of that contract was 23 July 2019, at the latest.[46]For these contracts, the agreement about when the Claimant was to be paid for the shifts/hours which she worked was:46.1 For regular, pre-planned hours (if any), the worker was paid in the same calendar month that the work was done, on the normal pay date, which was the last day of the month46.2 If extra or unplanned hours were done during the first three weeks or so of the month, then that payment for that time would be paid in the same month on the normal pay date, which was the last day of the month.46.3 Whereas if it extra or unplanned work was done in the last week or so of the month, then the payment would be made the following month again on the last day of that month.[47]Since all of the aforementioned contracts finished in July, it follows, therefore, that the latest date that any payment was due to be made (for normal wages, over time, additional work, et cetera) under any of those contracts was the last day of the following month, in other words, 31 August 2019.[48]On the Claimant’s case, she was entitled to a payment in lieu, because she had taken no leave whatsoever during any of the contracts for camp work, reception 10 of 18 work or after schools club work. Her alleged entitlement is not an issue which I need to decide in relation to the preliminary issue which is time limit. [I have already mentioned that the Respondent’s 16 April letter stated that the Respondent was making a payment for holiday pay.] A claim for holiday pay is included in the claim as presented.48.1 My decision is that, if pursued as an unauthorised deduction claim (or breach of contract claim), the latest date by which the payment in lieu of unused holiday entitlement (if any) for those contracts is also 31 August 2019 (that is the normal pay date in the month following the termination of those contracts). I have not been shown any express agreement to the contrary.48.2 If the claim is under the Working Time Regulations then would be from then the entitlement to payment in lieu crystalised on the effective date of termination of each contract (each of which is itemised above), the latest of which was – at the latest – 29 July 2019.[49]In relation to reasonable practicability, my finding is that the claimant has not put forward any good reasons for delaying presenting the claim in relation to the contracts for camp work, reception work or after schools club work.[50]I note that she thought that the amounts in question were small. I note that she has told me that she considered they might have been below the employment tribunal limits, but I am satisfied that it would have been easy for her to look into that. She does not suggest that there was anything preventing her looking into whether the amounts were actually below a hypothetical employment tribunal limit or to find out what the limitation date for making the claim was.[51]As I am about to discuss, there was another contract (graphic design), but it is my finding that the Claimant was not of the opinion that there was some connection between payments allegedly due to her under the camp work, reception work or after schools club work contracts, and the (allegedly on-going) other contract. She was aware that all of the camp work, reception work and after schools club work contracts had ceased, and she had all the information needed to find out whether that fact created a time limit for bringing an employment tribunal claim. Likewise, she knew she was not receiving any on-going payments under those contracts, and had all the information needed to find out whether that fact created a time limit for bringing an employment tribunal claim. To the extent that the Claimant alleges that she believed that, because (on her case) the money was owing to her, there was a fresh deduction each month when the payment was not made to her, then my decision is that that was not a reasonable mistake for her to make. She had the skills and abilities to do some research and find out that an alleged on-going failure to pay for work done in May, June and July 2019 was not an on-going series of deductions that continued any later than 31 August 2019.[52]A separate matter is that the claimant reached an agreement with the respondent that she would do some graphic design work for them. There is a dispute between the parties about whether that agreement was reached on 29 April (as the claimant alleges) or 4 June 2019 (as the respondent alleges).[53]The agreement was that the work would be done from home. The claimant points 11 of 18 out that the reason she was going to do the work at home was that the respondent did not have the relevant tools and equipment and she did. However, regardless of the reason that it was agreed that she would work from home.[54]It was also agreed that she would be paid via payroll. The claimant suggests that this was not necessarily agreed at the outset, but rather she was informed about this in August. The agreement was also that she would submit timesheets for the work that she did and be paid £8 50 per hour. Again, the claimant's position is that this was not agreed at the outset, but was agreed in August. I do not need to make any decision on that because the parties agree that (regardless of what prior negotiations and/or agreements there had been) by no later than August 2019 the agreed arrangement was that the claimant would be paid on the basis of timesheets which she submitted and at the hourly rate of £8.50 per hour and that the payments were to be made via the respondent's payroll function.[55]The respondent's position is that this should be treated as a fixed term contract which ended either 30 September 2019 or 1 October 2019. The claimant's position is that there was no end date and potentially the contract was to continue for as long as there was work for her to do and that she expected to be given various specific tasks in relation to the Respondent’s graphic design requirements.[56]Both parties agree that one thing which the respondent wanted the claimant to do was to create some new designs for characters which it could then put on certificates which it was to issue to students. The relevant certificates were to be completed by an authorised swimming instructor and there was different certificates for different levels of achievement.[57]Largely the parties also agree that it was made clear to the claimant that the respondent would need to have the new certificates and badges ready by what it called “badge week”, which was in the middle of November. They also agree that the badges, incorporating the claimant's designs were to be physically produced by an embroidery company and that it was necessary for the embroidery company to receive the designs a few weeks prior to badge week so that they could be physically created in time for “badge week”.[58]However, what is in dispute is that:58.1 on the respondent's case, there was a firm and specific deadline of 30 September 2019 for the claimant to get the graphic design work to the respondent so that the respondent could forward it to the embroidery company, promptly after that date, to leave enough time for the badges to be physically produced in time for “badge week”. Further, on the respondent’s case, the only work that had been envisaged under the graphic design contract was this badge work, and the design of a certificate which the Claimant had completed in June. The Respondent’s case is that the completion of that badge work task (and/or the deadline by which it had been agreed that task was to be completed) represented the end of a fixed term contract.58.2 on the claimant's case, it was she who was going to submit the work directly to the embroidery company, and she does not accept that any exact calendar date had been given as the deadline for doing that at the outset of the contract. 12 of 18 She does accept that she was notified of the embroidery company’s deadline in due course. However, on her case, she had agreed that she would doing some ongoing graphic design work for the respondent, of which the badge work was only a part. She says that she regarded the notification of the embroidery company’s deadline as being a shifting of priorities for her, but no more than that. That is, on her case:58.2.1 it was not agreed at the outset that submitting the designs to the embroidery company was the completion of her “graphic design work” contract58.2.2 when she was told about the specific deadline, there was not a mutual agreement that that date, and/or the completion of the task would be the end of the contract58.2.3 when she was told about the specific deadline, there was communication to her by the Respondent that it was making a unilateral decision that that date, and/or the completion of the task would be the end of the contract[59]My decision is that there was not a fixed term contract for the graphic design work which had an end date of 30 September 2019 or 1 October 2019. Rather there was a loose arrangement reached in early June that the respondent might have several pieces of work which it wished the claimant to do. There was not an agreement that the Claimant would be on a “salary” or any other regular income. Rather, she was going to be paid, in relation to each task, for the time spent on that task. There does not seem to have been any fixed budget set by the Respondent for each task, nor any estimate supplied in advance by the Claimant for each task. Possibly (although it does not strictly matter to the preliminary issue) the two sides had very different expectations about how many hours the Claimant would need to spend on the work and (therefore) what the total cost would be. However, my finding is that, while the costs for each task were not thoroughly discussed in advance, it was discussed and agreed that59.1 the Claimant would be paid an hourly rate for work done and59.2 it was the Respondent which would tell her what the task was59.3 it was the Claimant who would carry out the task and therefore (in effect) decide how many hours she needed to spend on it59.4 it was not agreed that the Claimant would be paid for any time in which she was not performing the task59.5 it had not been expressly agreed that, if the Respondent rejected the work it did not have to pay her, or if the Respondent thought the time claimed was more than it had expected, it did not have to pay her[60]It had not been expressly agreed what would bring the arrangement to an end. As I have mentioned already, I reject the Respondent’s suggestion that there was an agreed fixed end date. However, by the same token, there was no agreement that there was an on-going commitment from either side. Although neither side expressly addressed their minds to it, it was obvious to both sides that, if there 13 of 18 came a time that the Respondent offered a piece of work to the Claimant, she was free to simply say “no” and that if there came a time that the Respondent wanted some graphic design work done, it could offer to anybody else, without being obliged to offer to it to the Claimant (first, or at all).[61]On 30 September 2019, the Claimant was told by the Respondent that the badge work been put on hold to (see page 168 of the supplementary bundle; part of an email which starts on 160 from Mr Gallagher to the claimant).[62]In relation to the argument that (regardless of whether a fixed end date was agreed or not) there was an agreement was that the graphic design contract would come to an end following completion of a specific task, my decision is that there was no clear agreement between the parties that, once the badge work was complete, then the Respondent would have no further graphic design work for her to do. While the Claimant may have been confident that(i) firstly she would do such a good job that they would be happy for her to do more work and(ii) that they did have further graphic design requirements, she knew that she was only entitled to be paid for work done and – therefore – once she had been paid for the work which she had completed, she would not be entitled to further payment unless and until (i) the Respondent allocated her more work and (ii) she had done (some of) that work and submitted a time sheet for it.[63]The respondent's case is that it was only ever intended that it would give the Claimant work to do on the design of a certificate (which they say was completed when submitted in the design for that in June) and work to do on the characters for the badges (which they say was completed when she submitted characters on 17 September 2019). However:63.1 Firstly, there was no agreement in advance about exactly what would constitute completion of the “task” (and therefore the contract) and63.2 Secondly, there was no communication by the respondent to the claimant that as far as it was concerned, the task was completed. On the contrary, my finding is that the correspondence sent by the Respondent at the time is that the claimant was been told that matters were being put on hold and that that carried the dual implication that(i) the work was not being treated as having already been completed and(ii) potentially, at least, there might be a resumption in the future. [On the latter point, the 30 September 2019 referred to the need to resolve other matters “first”, ie before a potential resumption. It is fair to say that there is, therefore, also an implication that, if the other matters are not resolved, there might be no resumption. However, that does not change the fact that, if the Respondent had regarded the task as already having been completed, there would have been no need to discuss the work being on “hold” or to discuss what needed to be resolved before the work resumed.][64]In relation to the claimant's assertion that the claim form with attachments submitted 19 March 2020 includes a claim for unauthorised deduction from wages for this graphic design contract, my decision is that that is not the case. The claim form specifies that she was put on unpaid suspension are but does not allege that she was entitled to be paid during this period of suspension. As presented, the 14 of 18 complaint is a different one and is twofold, namely that the purpose of the suspension was to deal with her complaints about other matters in the respondent had been too slow in dealing with those and secondly that, for related reasons, she considered that the graphic design work should have resumed after much shorter interval. It is clear in the claim documents that she understood that she was not entitled to be paid during the suspension and she was not alleging that there were any arrears due to her. Amongst other things, she did not allege any method of payment calculation e.g. average wages or anything else for that matter.[65]In relation to the graphic design work, the claim does not include a claim for notice pay. The claim as presented makes clear that the claimant regarded herself and the Respondent as still being bound by the terms of the contract. She did not allege that it already terminated and did not that there should be an entitlement to notice pay because of termination.[66]In relation to holiday pay, for the graphic design contract, the claim does not contain an allegation about holiday pay in relation to the graphic design contract. The claim does not allege either that she took a period of leave that should have been treated as holiday and was not paid for it and does not allege that she requested holiday and had that request refused. Furthermore, there was no allegation that the contract had terminated and the respondent had failed to make a payment in lieu of accrued holiday upon termination. Analysis and Conclusions[67]For each of the “camp work”, “reception work”, “after schools club work” the claims are out of time. The latest date that any payment was due under any of those contracts was 31 August 2019 and any claim for unauthorised deduction from wages had to be brought by 30 November 2019. Since the Claimant did not commence early conciliation prior to then the deadline is not extended by the early conciliation which commenced in February 2020.[68]For these contracts, the end dates were68.1 For the second (and final) camp work contract, 25 July 2019 (but, at the latest, it was 31 July 2019)68.2 For the reception work contract, 18 July 2019 (but, at the latest 29 July 2019)68.3 For the after schools club contract, 23 July 2019[69]Thus any claim for breach of contract, or under the working time regulations, or for written particulars, had to be presented by, respectively69.124 October 2019 (or, at the latest 30 October 2019)69.217 October 2019 (or, at the latest 28 October 2019)69.322 October 2019 Since the Claimant did not commence early conciliation prior to any of those dates, the deadline is not extended by the early conciliation which commenced in 15 of 18 February 2020.[70]For all the claims under these contracts, it was reasonably practicable for the claim to have been presented in time, and time is not extended. The claims are dismissed because the tribunal does not have jurisdiction.[71]To the extent, if at all, that the Claimant seeks amendment to claim that she was paid less than the national minimum wage for any of those contracts, I do not allow the amendment. The claim was already out of time when presented. She could have included such a claim when presented in March 2020 but, more importantly, she could have presented them within 3 months (or, at least, started early conciliation within 3 months) of the termination date, and she did not do so. While it would be within my powers to allow an amendment, despite the fact it is out of time, I do not do so, as the injustice and hardship to the Respondent of allowing such an amendment outweighs that to the Claimant of refusing it. In reality, the factual allegations are no different than for the claim of unauthorised deductions which has been dismissed because it is out of time; that is the Claimant alleges that she attended work for more hours than she was paid for. It would not be in the interests of justice to amend the claim to add this out of time allegation.[72]The 16 April 2020 letter was sent. At the time that it was sent, the graphic design work contract had not been terminated earlier for any other reason. For the preliminary issue, I do not need to decide any issue under section 230(1) or (3) of the Employment Rights Act 1996 (ie whether it was an employment contract, some other type of worker contract, or neither). However, for time limit purposes, the contract had not ended. The effective date of termination (regardless of whether or not it was the type of contract to which the definition of that phrase in section 97 ERA had not occurred). The graphic design contract was not terminated prior to 19 March 2020, but rather it was “on hold”.[73]The Claimant does not allege that, for actual work done under the contract, there is any outstanding payment due. Rather she accepts, that, for work actually done, the payment made on 31 October 2019 (payslip page 126 of bundle) represented the last instalment due. As far as the preliminary issue is concerned, if the Claimant had alleged that there was a shortfall for the payments for work actually done under the graphic design contract, and identified by the Claimant’s correction of her timesheet, then the claim would have been in time. The last instalment was paid on 31 October 2019 and (because of early conciliation) claims for deductions (allegedly) made from payments lawfully due on or after 21 October 2019 would be in time.[74]The Claimant does allege (section 8 of her particulars of complaint) that she was due to receive a payment of £68 after “six months of continuous employment”. Whether she had such an entitlement or not and whether she had “six months of continuous employment” or not, were not matters for me to decide as part of the preliminary issue. She relies on the written “after school club” contract document which is said to be for a fixed term from 4 June 2019 to 23 July 2019. However, her allegation is that this was also a term (whether express term or implied term is not something that I have to deal with) of the graphic design contract. I think it is appropriate for me to mention to the parties that I am far from convinced that this complaint has reasonable prospects of success. However, I am satisfied that the 16 of 18 Claimant was not simply suggesting in the claim documents that this was an unauthorised deduction based on the “after school club” contract, but rather was an entitlement to be paid £68 because the graphic design contract was on-going. Regardless of whether the 6 months is alleged to start running form May 2019 (earliest work done under any of the contracts) or from the start of the graphic design contract itself, the entitlement to payment (and therefore the date of the alleged deduction) was not until after 21 October 2019, and so the claim is in time.[75]I note that EJ Allen’s judgment of 27 August 2021 decided that the claims included a claim for failure to provide written particulars. This allegation included the graphic design work contract.[76]In relation to the 16 April letter, the claimant had not made any arrangements for her mail to be forwarded to her and she did arrange to visit the address to collect the mail. Upon receipt of the payment from the respondent, she did not contact the respondent to ask for an explanation. She did not ask her mother if any letters from the respondent had been received which might have explained the payment (purportedly in lie of holiday) which she knew she had received.[77]My finding is that the letter received at the address to which it was posted not long after 16 April 2020. Given the tight lockdown restrictions that were in place at the time, and the claimant's mother's circumstances, it was not unreasonable that the claimant did not immediately (meaning within a day or two) obtain a copy of the letter and read it or have it read out to her over the phone.[78]However, among the options open to the claimant were for her to visit the address without going inside and - by prior arrangement - have her mother leave the mail outside a short time before the Claimant’s arrival. (Eg when the Claimant was within sight of the front door). During lockdown this would not have been a breach of lockdown restrictions and during lockdown people did sometimes, for example, leave grocery for elderly friends or neighbours outside the property without mingling households.[79]Other options were for the letter to be read out to the claimant by phone by her mother or the Claimant to contact the respondent directly and ask for a copy to be emailed or posted to another address. The Claimant was particularly on notice after she noted the money was in her bank account (which I am satisfied would have been no later than the first week of May 2020). Furthermore, she should have been on the look out for tribunal correspondence sent to that address.[80]In all the circumstances, therefore I am satisfied that the claimant had had the reasonable opportunity by no later than 31 May 2020 to have read the respondent's correspondence. It was sent to her at the address she had put into the claim form and therefore that was a reasonable method for the Respondent to use to attempt to contact her.[81]Therefore my decision is that the effective date of termination of the graphic design contract was 31 May 2020. If the Claimant wished to make any claim based on that contract, of breach of contract (for notice pay or holiday pay or entitlements) or under working time regulations, the time limit for so doing was 30 August 2020. The time limit for any claim for unauthorised deductions (including a claim based 17 of 18 on an argument that the entitlement was to national minimum wage) would have had the clock start running from not later than 31 May 2020 also. The 16 April letter made clear that it was asserting that no further payments were due, other than the payment (for accrued holiday pay) which it was making and which the Claimant knew, by May 2020, had been received. The early conciliation between February and March makes no difference to time limit of 30 August 2020.[82]The Claimant wrote on 7 September 2020, stating that she would like to add a claim of unfair dismissal “and all the other breaches of contract”. On her case,(i) she did this promptly after seeing the 16 April letter for the first time and(ii) the reference to unfair dismissal etc should be taken as a request to add a claim for notice pay, even though it is not expressly mentioned in such terms.[83]I do not give permission, in relation to the graphic design contract, to amend to add unauthorised deduction claim or national minimum wage legislation claim. Either such argument could have been expressly included in the March 2020 claim and was not included because, at the time, the Claimant accepted that she had no entitlement to on-going pay under the graphic design contract. She knew that the agreement was that she got paid for work allocated and performed, and that she had not (been allocated or) performed such work. The balance of injustice and hardship is in favour of refusing the amendment given the lapse of time since the contract was first agreed and the Claimant’s failure to raise these arguments until much later.[84]I do not give permission to amend the claim to add a notice pay claim or holiday pay claim for the graphic design contract. I decided that the effective date of termination was 31 May 2020. On 2 June 2020, the Claimant received the response form, by email, and was aware from that date that the Respondent was alleging that her employment had terminated with effect from 1 October 2019. It was reasonably practicable for her to put in a claim (or amendment request, or to start fresh early conciliation, as the case may be) by 30 August 2020. She did not do so.