Ms H Browne v LAVAT Consulting Ltd T/a PSTAX: 3308896/2024

EMPLOYMENT TRIBUNALS

Case No 3308896/2024

Between

Ms H BrowneClaimant

LAVAT Consulting Ltd T/a PSTAXRespondent

Before

Employment Judge Gumbiti-Zimuto

In person for claimant

Mr L Varnham (instructed by counsel) for respondent

Date 16 September 2025

JUDGMENT

[1]The claimant’s complaints of breach of contract and unpaid wages are not well founded and are dismissed. Approved by: Employment Judge Gumbiti-Zimuto 16 September 2025

[2]JUDGMENT SENT TO THE PARTIES ON 7 October 2025 FOR THE TRIBUNAL OFFICE Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/

[3]Case Number: 3308896/2024 1 EMPLOYMENT TRIBUNALS Claimant: Ms H Browne Respondent: LAVAT Consulting Limited T/A PSTAX Heard at: Reading On: 16 September 2025 Before:

REASONS

[1]In a claim form that was presented on 2 September 2024, the claimant made a complaint of breach of contract and a claim for an unauthorised deduction from wages. The respondent resists the claim and takes the point that the claimant’s claim has been presented outside the time limit for the presentation of complaints provided for by the Extension of Jurisdiction Order (breach of contract) and outside the time limit provided for in section 23 of the Employment Rights Act 1996 (unauthorised deduction from wages).

[2]The relevant dates are:2.1 The claimant’s employment commenced on 4 April 2022 and ended on 22 February 2024.

2.2 The early conciliation was between 15 May 2024 and 26 June 2024, the claimant commenced her claim on 2 September 2024.

2.3 The time limit for the presentation of claims, calculated by reference to the date of termination of her employment, ended on 26 July 2024 under both the Extension of Jurisdiction Order and also the Employment Rights Act 1996. The claimant’s claims have been presented outside the time limit for the presentation of complaint. Case Number: 3308896/2024 2 3 I have not decided this case based on time limits alone but it is my conclusion that the claimant has not shown that it was not reasonably practicable to present her claim within the time limits. 4 The claimant explains in her claim form that she came to be employed by the respondent when she was “head-hunted” by the respondent from a role with another employer into a role with the respondent. 5 The offer of employment letter dated 23 March 2022 included a provision that the claimant’s base salary was £55,000 and that she was to receive commission based on the success of technical campaigns. The letter sets out the bands in which the commission is calculated. The letter contains a statement which reads: “We believe this will offer an excellent opportunity to earn a salary of £80k plus.” The claimant’s contract of employment was signed on 29 March 2022, it contains a preamble which reads that: “This agreement sets out your principal terms and conditions of employment and incorporates the written particulars required by section 1 of the Employment Rights Act 1996 and incorporates the provisions contained in the letter from the company offering you employment and constitutes the contract of employment between….” It then refers to the claimant and the respondent. 6 The claimant’s commission entitlements are contractual. 7 The question for determination is not whether the commission entitlements are contractual, it is whether any commission which the claimant would have been entitled to recover under the contract of employment was due to her at the point that her employment came to an end and was not paid. Were there any commission payments due to the claimant on the termination of her employment which ought to be treated as salary or wages that was outstanding when the employment ended. 8 The Extension of Jurisdiction Order of 1994, at clause 3, provides that: “Proceedings may be brought in respect of a claim of an employee for damages where the claim arises or is outstanding on the termination of the employee’s employment.” 9 The Employment Rights Act 1996 defines commission as wages for the purposes of section 27. It also contains a provision that an employer must not, in relation to an employee, make an unlawful deduction from the claimant’s wages. The critical question is what was outstanding on the date that the claimant’s employment came to an end. If the answer is nothing was outstanding on that date, whilst it may be possible for the claimant to construct a breach of contract after that date in respect sums which become due a complaint about such money is not a breach of contract claim that is within the jurisdiction of the tribunal because it arises after the termination of the employment. 10 A claim for unlawful deduction of wages would also fail as at the point that the employment terminated there is no evidence of wages lawfully due which were not paid. Case Number: 3308896/2024 3 11 The evidence which has been given by the claimant does not state that on the date that her employment ended there had crystalised commission payments which had not been paid. What the claimant says is that in the pipeline there were a number of contracts which would have triggered the commission for the claimant that had not crystalised. She says she does not know precisely when these were triggered and so is not able to set them out as a quantified sum. What she is able to do is identify a variety of clients to whom this might apply. The claimant’s evidence was that without access to the respondent’s records she could not do better than give estimates. This is problematic for the claimant because what it means is she is not able to show that on the date her employment with the respondent came to an end there was a contractual sum that she was entitled to that was outstanding and which was not paid to her, i.e., that there was a breach of contract by the respondent on that date or unpaid wages on that day. 12 The employment tribunal proceedings are not proceedings for an account, and by that, I mean it is not an opportunity for the claimant to bring the respondent before the tribunal and ask them to present their accounts to show what the claimant was entitled to. These are adversarial proceedings where the expectation is that the claimant presents her complaint. She says she is owed £100 or whatever sum of wages that the respondent is to pay her. 13 All the evidence that I have heard suggested that any commission that might be triggered, and become contractually due to the claimant, was going to be triggered after the termination of employment. In those circumstances, there was no breach of contract that had arisen on the termination of the claimant’s employment. There was no evidence of a breach of contract which was outstanding on the termination of her employment. The claimant’s claim for a breach of contract therefore has to fail because she has not shown that she is entitled to succeed on a matter which is within the jurisdiction of the tribunal. 14 In respect of the unpaid wages claim, the claimant is entitled to a payment which is in connection with her employment. She has the right not to suffer unpaid wages and that is something an employer must ensure that it does not make deductions from an employee’s wages. 15 The amounts claimed by the claimant have not been specified. She has not said that on any particular date a sum of money was due to her as wages which had not been paid. 16 To the extent that she has presented figures it is clear that those figures, on her own evidence, have not been accurately calculated. It is not possible for me to quantify a figure or an amount of wages that are claimed and the failure to provide a specific date of the amount claimed and it being due, makes it impossible for me to ascertain whether or not the claim for wages and any particular instance is within the time limit for presenting claims or not unless one takes the dismissal date as 22 February as the date when the wages were due. If that is the correct date the claimant’s claim is out of time because she has not explained why the claim was not brought within time. 17 The claimant, at all relevant times, was assisted by Mr Mackenzie. By relevant Case Number: 3308896/2024 4 times I am looking at the period from the claimant’s dismissal and her contact with Acas. Whilst the claimant may have suffered some ill health which impaired her ability to function to some extent, I assume that is what she would like me to conclude, evidence justifying such a conclusion has been presented. There has not been an explanation provided for why the claimant could not have presented the claim within time. 18 In any event, it seems to me that the claimant ought to have been aware that there was an issue of time in relation to the potential dispute with the respondent because she had been e told by Acas that she had at least a month in which to bring her claims. In my view, the claimant must have known that she may have longer than a month but also that she may only a month. In any event, it seems to me that a reasonable litigant in employment tribunals would be put on notice that time limits exist. So that some explanation is required to explain the claim is present about six weeks out of time. Without any such explanation I cannot conclude that it was not reasonably practicable to present the claim in time. 19 There is one other matter that I ought to deal with. Potentially there were claims for unpaid wages which are in time. If one is concluding that the obligation to pay the claimant wages arises as and when the respondent was paid then there could have been a variety of different dates on which the obligation to pay to the claimant her wages arose. The difficulty that presents for the claimant in this case is that she does not provide those dates so it is not possible to show that the claim is either in time or out of time. In any event, I am of the view that on its face, the obligation imposed on an employer not to make an unlawful deduction arises in relation to a worker that is employed by him. While the definition of worker includes a person who has worked for an employer, and the definition of employee includes a person who was employed. My view is that when one reads section 13 it only applies in the context of a person who is in continuing employment at the time the obligation to make the payment arises. If there are sums that are due to a former employee or former worker that arise after the employment has ended, they are, in my view, recoverable as contractual claims but that is not within the jurisdiction of the employment tribunal, the venue for such a claim is not the tribunal even if it is said that such a sum of money is definable as wages that arose after the employment came to an end. 20 My conclusion is that the claimant’s claims are not well founded based on the evidence that has been presented. In any event, the claims were presented out of time and, therefore, the employment tribunal does not have jurisdiction to consider the complaints. Approved by: