Mr A Karaburc v ACDC and Electricals Ltd (in Liquidation): 3311653/2021 Mr A Karaburc v ACDC and Electricals Ltd (in Liquidation): 3311653/2021
JUDGMENT
The Claimant’s claim is dismissed.REASONS
[1]The Claimant has brought a claim against the Respondent company for an amount of £2,700.[2]The Claimant worked for the Respondent from 4 February to 25 February 2019. He described himself in his claim form as a “self-employed electrical engineer”. He was paid on invoices submitted in the name of Burch IT Consultancy and Technical Services. He was a sole trader and this was the name of his business.[3]He provided his services not just to the Respondent but also to other companies.[4]He was paid on some of his invoices, but no payment was made on an invoice dated 24 June 2019. It is based on that unpaid invoice that he brings his claim.[5]I considered first whether the Claimant’s claim could be characterised as a breach of contract claim made under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 but concluded that it could not. The Claimant did not seek to suggest that he was an employee of the Respondent and only those employed under a contract of employment can bring breach of contract claims to the employment tribunal.[6]I therefore treated his claim as a claim for an unauthorised deduction under section 13 of the Employment Rights Act 1996 (ERA).[7]The deduction dated back to June/July 2019. On the basis that the invoice of 24 June 2019 should have been paid within 28 days (which is a reasonable norm), payment was due on about 22 July 2019. The threemonth time limit in section 23 of the ERA, subject to any relevant early conciliation period, would expire before the end of October 2019.[8]The Claimant brought his claim to the Employment Tribunal on 16 June 2021, more than a year and a half after expiry of the primary three-month time limit.[9]The Claimant was ordered by the tribunal on 24 September 2022 to provide a witness statement explaining, among other matters, why it had taken him so long to bring his claim. No witness statement was provided. The Claimant misunderstood what he was expected to do.[10]I gave the Claimant the opportunity to explain why he had brought his claim so late. He said that he had contacted Acas in 2019 and he showed me an Early Conciliation Certificate which showed that early conciliation notification was received by Acas on 10 September 2019 and that a certificate was issued on 25 September 2019.[11]This certificate was not referred to in the ET1. The certificate referred to in the ET1 showed date of receipt by Acas of EC notification on 10 June 2021 and date of issue by Acas of the EC certificate on 15 June 2021. The 2019 EC period extended the time limit by 15 days, taking the expiry of the limitation period to the middle of November 2019.[12]The statutory scheme in relation to EC only allows for one certificate in relation to a particular matter. Here, the second certificate related to the same matter as the first certificate. The second certificate was therefore not valid.[13]The Claimant explained (and I accepted) that there were multiple reasons why he did not bring his claim within the primary three-month time limit. He said that he did not know about the time limit; he was in Turkey for some time; he got married; and then the pandemic had an impact. He said that Acas had not replied to him following the first certificate and he could not remember if Acas told him about the three-month time limit.[14]I consider that it is probable that Acas did inform the Claimant of the threemonth limitation period, although he may not have fully understood the importance of this. English is not his first language.[15]Given that the claim was brought well outside the primary three-month limitation period, I considered whether it had not been reasonably practicable for him to bring the claim in time. It was for the Claimant to satisfy me that it was not reasonably practicable to bring the claim in time. The test is whether it was not reasonably feasible to bring the claim in time. The reasons given by the Claimant did not satisfy that high hurdle.[16]The Claimant had been in contact with Acas and ought to have known about the three-month time limit if he had made reasonable enquiry. Time limits in the employment tribunal are deliberately short and it is exceptional to extend time. Ignorance of the time limit does not on its own make it not reasonably practicable to bring a claim. Many individuals continued to make claims to the employment tribunal even when abroad and during the pandemic. The Claimant waited for well over a year and a half before bringing his claim which was not reasonable.[17]As the claim is well out of time and I am not satisfied that it was not reasonably practicable to bring the claim in time, the claim must be dismissed.[18]Even if I had not dismissed the claim on this basis, I would have dismissed the claim because the Claimant was not a worker within the meaning of the ERA. The Claimant did not work for the Respondent pursuant to a contract of employment. He carried on a business undertaking as a sole trader and supplied his services to the Respondent in that capacity. He was a self-employed contractor.[19]Mr Ali, Director of the Respondent attended the tribunal and wished to show me evidence relevant to the merits of the Claimant’s claim. Quite apart from the fact that the Respondent, which is in liquidation, had not filed a Response with the tribunal, evidence in relation to the merits of the claim could not assist me in determining preliminary issues in relation to time and employment status. I did not permit the Respondent to adduce evidence.[20]I make no finding as to whether the Respondent owes the Claimant money. His claims must be dismissed because of the operation of the time limit provisions in the ERA and because the Claimant did not have the necessary employment status to bring his claim.