Employment Judge AlliottIn person for claimantMr Luke Mulholland (instructed by solicitor) for respondentDate 8 April 2025
JUDGMENT
[1]The claimant’s claims of unauthorised deduction of wages and failure to ensure rest breaks were not brought in time and it was reasonably practicable to bring them in time. As such, they are struck out as there is no jurisdiction to hear them.[2]Any claims brought under the Equality Act 2010 were not brought in time and it would not be just and equitable to extend time. As such, they are struck out as there is no jurisdiction to hear them.
REASONS
[1]This public preliminary hearing to determine the preliminary issue of whether the claim was presented in time was directed by Employment Judge Quill on 2 December 2024.[2]Also on 2 December 2024, the claimant was ordered to send to the tribunal details of any disability discrimination claim by 13 February 2025. The claimant’s applications to postpone this hearing.[3]On 16 February 2025, the claimant emailed the tribunal to request that this hearing be adjourned as the claimant was currently in India.[4]The application to postpone the preliminary hearing was opposed by the respondent and refused by Employment Judge Young on 27 February 2025 with the observation that the claimant could represent himself by video from India or obtain a representative in the UK and that he did not have an exam on 13 March.[5]On 3 March 2025, the claimant renewed his application to adjourn the hearing on the basis that he did not have access to his papers and that impaired his ability to present his case in a well structed and informed manner. Once again that was opposed by the respondent and the application was refused by Employment Judge Young on 7 March 2025. The claimant’s claims[6]The file has been coded WA (unauthorised deduction of wages) and WTR (failure to limit weekly or night working time or to ensure rest breaks).[7]The claimant’s claim form does allege harassment and discrimination and sets out a number of categories of treatment he complains about. However, the claimant has not ticked any of the protected characteristic boxes. As such, it is not known if the claimant is bringing a discrimination claim under the Equality Act 2010. Neither the respondent nor myself are aware of anything that may have prompted Employment Judge Quill to direct that further details be given concerning a disability discrimination claim.[8]In conversation with the claimant today the claimant indicated that he thought his discrimination claim would be on the basis of race. I have approached this hearing on the basis that the claimant either has presented a claim for race discrimination or, in the event that he needs permission to amend to introduce such a claim, that, reliant upon the facts already pleaded, the claimant would be likely to be given such permission. The claimant’s attendance at this hearing by CVP[9]The claimant attended by CVP from India. Accordingly, I could not take evidence from him and Mr Mulholland has not had an opportunity of cross examining the claimant. Be that as it may, I invited the claimant to explain why he had not presented his claims in time and this he did.
The law
[10]Section 23 of the Employment Rights Act 1996 and Regulation 30 of the Working Time Regulations 1998 require complaints of unauthorised deduction of wages and failure to limit weekly or night working time or to ensure rest breaks, to be brought within three months of the date of the payment of the wages from which the deduction was made, or the date on which it is alleged that the exercise of the right should have been permitted, or 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]Section 123 of the Equality Act 2010 requires claims to be presented within three months starting with the date of the act to which the complaint relates or such other period as the employment tribunal thinks just and equitable.[12]There may be a series of connected events and/or a course of continuous conduct and as long as the last of those is in time then the claim will be in time. Not reasonably practicable extension[13]As per the IDS Handbook on practice and procedure:[14]At 5.46: “When a claimant tries to excuse late presentation of his or her ET1 claim form on the ground that it was not reasonably practicable to present the claim within the time limit, three general rules apply:• Section 111(2)(b) ERA should be given a “liberal construction in favour of the employee” – Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, CA• What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. An appeal will not be successful unless the tribunal has misdirected itself in law or has reached a conclusion that no reasonable tribunal could have reached. As Lord Justice Shaw put it in Walls Meat Co Ltd v Khan [1979] ICR 52,CA: “The test is empirical and involves no legal concept. Practical common sense is the key note and legalistic footnotes may have no better result than to introduce a lawyer’s complications in what should be a layman’s pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the employment tribunal, and that their decision should prevail unless it is plainly perverse or oppressive.”• The onus of proving that presentation in time was not reasonably practicable rests on the claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint” – Porter v Bandridge Ltd [1978] ICR 943, CA. Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable.”[15]And at 5.50: “Ignorance of rights A claimant’s complete ignorance of his or her right to claim unfair dismissal may make it not reasonably practicable to present a claim in time, but the claimant’s ignorance must itself be reasonable. As Lord Scarman commented in Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, CA, where a claimant pleads ignorance as to his or her rights, the tribunal must ask further questions: “What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?” In Porter v Bandridge Ltd the majority of the Court of Appeal, having referred to Lord Scarman’s comments in Dedman, ruled that the correct test is not whether the claimant knew of his or her rights, but whether he or she ought to have known of them.”[16]And at 5.54: “Where the claimant is generally aware of his or her rights, ignorance of the time limit will rarely be acceptable as a reason for delay. This is because the claimant will generally be taken to have been put on enquiry as to the time limit.”[17]In addition, Mr Mulholland cited to me the following cases (without the citations)(i) Alao v Oxleas NHS Foundation Trust: A case where the claimant was an experienced HR Manager, but the claim was presented out of time.(ii) Asda Stores Ltd v Kauser: Where the claimant was stressed and that was insufficient to justify an extension of the time limit.(iii) Wolverhampton University v Eltaqi(iv) HSB Bank v Chevalier Firescu(v) Adedeji v University Hospital Birmingham NHS Trust Just and equitable extension[18]As per the IDS Handbook on Practice and Procedure:[19]At 5.128: “While employment tribunals have a wide discretion to allow an extension of time under the “just and equitable” test in section 123, it does not necessarily follow that exercise of the discretion is a forgone conclusion. Indeed, the Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA that when the tribunals consider exercising the discretion under what is now section 123(1)(b) Equality Act, “There is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.”
The facts
[20]The claimant was employed by the respondent as a Customer Assistant on 8 November 2022. He resigned with immediate effect on 10 September 2023.[21]The claimant received his final payslip on 28 September 2023 with a revised payslip issued on 30 October 2023 (which resulted in a .32p adjustment).[22]I have taken the date of resignation, namely 10 September 2023, as the last date concerning complaints relating to failures to ensure rest breaks and any Equality Act discrimination/harassment claims. I have taken 30 October 2023 as the start date for the claimant’s claims for unauthorised deduction of wages.[23]The claimant notified Acas on 16 October 223 and the certificate is dated 27 November 2023. Accordingly, 42 days stand to be ignored.[24]From 10 September 2023 the primary three month limitation period would have expired on 9 December 2023. Adding 42 days to that would mean the claim would have to be presented by 20 January 2024.[25]From 30 October 2023 the primary three month limitation period would have expired on 29 January 2024. Adding 42 days would mean the last date for presenting his claim would be 11 March 2024.[26]The claimant presented his claim on 8 May 2024. The claim was therefore three months and 19 days late and just under two months late.[27]The claimant complains about grievances not being dealt with in his claim form, but these were dealt with before he left.[28]The claimant did raise a grievance on 17 October 2023, but this related to his pay. He was given a grievance outcome on 22 January 2024. The claimant appealed the outcome on 25 January 2024, provided details of his appeal on 27 February 2024 and withdrew his appeal on 2 May 2024.[29]The claimant told me that he moved to India on 10 or 11 September 2023 and was in India until 19 December 2023. Unfortunately, the claimant’s grandfather passed away on 20 January 2024 and the claimant returned to India on 21 January 2024. The claimant returned to London on 4 February 2024. The claimant told me he remained unemployed until 2 April 2024.[30]The claimant is a law student. The claimant accepted that he could have filed his claim online from India. As such, I take no notice of the periods when the claimant was in India.[31]The claimant told me that whilst he was unemployed and looking for a job that was all he could focus on. He pointed out the fact that he was in financial hardship. I do not accept that these are good excuses for not filing his claim in time. It was entirely possible for the claimant to lodge his claim whilst looking for a job and notwithstanding any financial hardship.[32]The claimant referred to being in conversation with Lidl to try and resolve the issue. Again, I do not take this to be a reasonable excuse for presenting his claim late.[33]The claimant claimed to be ignorant of the three month time limit. I do not accept this. The claimant told me that he ‘Google’ researched bringing a claim in the employment tribunal and that is where he discovered the need to notify Acas before doing so. It is a fact that the Acas website makes it abundantly clear that there are strict time limits for bringing claims in the Employment Tribunal. Any ignorance of the claimant I find to be unreasonable.[34]Consequently, I find that it was reasonably practicable for the claimant to bring his Employment Rights Act/Working Time Regulation claims in time. Consequently, there is no jurisdiction to hear them, and they are struck out.[35]I find that any claims the claimant may have under the Equality Act 2010 were brought out of time. I find that it is not just and equitable to extend time. No good excuse has been given. Consequently, all such claims are struck out. Approved by: