Mr D King v Drive Software Solutions Ltd (in liquidation) and Secretary of State for Business and Trade: 3313070/2023
JUDGMENT
[1]The claim against the First Respondent in respect of unpaid wages and notice pay has been brought out of time and the Tribunal has no jurisdiction to determine it. The claim is dismissed.[2]The claim against the Secretary of State for Business and Trade was received out of time, applying the provisions of Section 188 of the Employment Rights Act 1996. The Tribunal has no jurisdiction to determine that complaint and it is dismissed.[3]No award of a redundancy payment can be made against the First Respondent as it has been dissolved and legally has therefore ceased to exist. Case Number: 3313070/2023. 2REASONS
[1]The claim in this matter was received on 8 November 2023 following a period of ACAS Early Conciliation entered into in relation to the First Respondent between 3 and 6 November 2023. The Claimant has alluded to the submission of an earlier claim but as that was rejected it was not before this Tribunal.[2]No response was entered by the First Respondent and it appearing to be in insolvency, notice was given to the Claimant on 15 February 2024 that the proceedings were stayed unless permission from the Court was obtained for the proceedings to continue. This was copied to the named Insolvency Practitioner, Xeinadin Corporate Recovery.[3]The Claimant was also sent a letter from the Employment Tribunal that he may wish to claim from the Insolvency Service in view of the company’s insolvency.[4]In writing up these reasons (given in limited form orally at the Hearing) the judge checked the status of the First Respondent. The company was dissolved on the 18 May 2025. As such it no longer exists and therefore no award can be made against it. The judge has therefore reconsidered her decision to award a redundancy payment of her own volition within the provisions of Rule 71 of the Employment Tribunal Procedure Rules 2024.[5]The written representations of the claimant dated the 7 September 2025 have been taken into account. In putting forward his arguments as to why a redundancy payment should be awarded he refers only to a company in compulsory liquidation. That is not the position of the First Respondent which has been dissolved and therefore no longer exists legally and as such no order can be made against it.[6]The claimant may not continue with his claim unless the First Respondent is restored to the Register of Companies. Any application to restore the company to the Register must be made to the High Court and not to the Tribunal. Information on how to do this is available here: Claiming money or property from a dissolved company: Get a court order to restore a company - GOV.UK (www.gov.uk)[7]If the claimant does obtain a Court Order restoring the respondent to the Register of Companies, he must provide it to the Tribunal immediately. Secretary of State for Business and Trade[8]The Tribunal of its own volition directed that the Secretary of State for Business and Trade be joined to the proceedings and the proceedings served upon it. It does not appear that was done for some considerable period. By email of 24 October 2024 the Secretary of State indicated it had been copied into a letter to the parties but had never received the ET1 Case Number: 3313070/2023. 3 Claim Form, or notification it had been joined. This was rectified on 24 January 2025, and the Secretary of State provided a Grounds of Resistance received by the Tribunal on 14 February 2025.[9]In that document the Secretary of State made no admissions as to entitlement to any payments and specifically stated that a rejection letter had been sent to the Claimant on 12 May 2023. He had been advised of his right to make a complaint to the Employment Tribunal within a three-month period in accordance with Section 188 of the Act which ended on 11 August 2023. It was submitted that the claim therefore received on 3 November 2023 was received out of time. Insolvency Service[10]At this Hearing the Claimant was able to forward to the Tribunal a copy of that correspondence with the Insolvency Service. The email from the Insolvency Service was dated 12 May 2023 and explained to the Claimant that having reviewed his claim on the information provided, he was not entitled to receive the payments applied for as the Insolvency Practitioner had been unable to verify the Claimant’s employment details. Information was provided in the letter as to what the Claimant could do if he did not think the decision was correct. In addition, there was a link at the end of the letter stating that the Claimant had the right to claim in the Employment Tribunal if he thought he had been paid the wrong amount and that there were time limits for making a claim. There was a link taking him to the Government website about making a claim to the Employment Tribunal, for a redundancy payment. It specifically stated that the Claimant had three months from the date of the letter to make a claim to the Employment Tribunal, unless his claim was for a redundancy payment. There were different time limits, it stated, in relation to redundancy pay which is usually six months from the date of dismissal.[11]The Claimant did submit a claim in August 2023 but it was rejected as he had not initiated ACAS Early Conciliation. He did not then do that until November and the current claim was received on 8 November 2023. Relevant Statutory Provisions[12]Claims for wages including holiday pay and other payments payable under the contract of employment are to be brought to the Employment Tribunal within three months of the date of non-payment. This is set out in Section 23 of the Employment Rights Act 1996 as follows:-[23]Complaints to employment Tribunals(1) A worker may present a complaint to an employment tribunal – (a) that his employer has made a deduction from his wages in contravention of section 13 (including a Case Number: 3313070/2023. 4 deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)), (c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or (d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with – (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.(3) Where a complaint is brought under this section in respect of – (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to Case Number: 3313070/2023. 5 be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. 13. Different provisions apply in relation to redundancy payments. These are governed by Section 164 of the Employment Rights Act 1996 as follows:- 164. Claims for redundancy payment (1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date – (a) the payment has been agreed and paid, (b) the employee has made a claim for the payment by notice in writing given to the employer, (c) a question as to the employee’s right to, or the amount of, the payment has been referred to an employment tribunal, or (d) a complaint relating to his dismissal has been presented by the employee under section 111. (2) An employee is not deprived of his right to a redundancy payment by subsection (1) if, during the period of six months immediately following the period mentioned in that subsection, the employee – (a) makes a claim for the payment by notice in writing given to the employer, (b) refers to an employment tribunal a question as to his right to, or the amount of, the payment, or (c) presents a complaint relating to his dismissal under section 111, and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment. (3) In determining under subsection (2) whether it is just and equitable that an employee should receive a redundancy payment an employment tribunal shall have regard to – (a) the reason shown by the employee for his failure to take any such step as is referred to in subsection (2) within the period mentioned in subsection (1), and (b) all the other relevant circumstances. Case Number: 3313070/2023. 6 14. In the event of insolvency, application can be made to the Secretary of State and if not satisfied a claim may be brought (s.170). 15. Section 188 of the Employment Rights Act 1996 lays down the time limits that apply to such claim as follows:- 188. Complaints to employment tribunals (1) A person who has applied for a payment under section 182 may present a complaint to an employment tribunal— (a) that the Secretary of State has failed to make any such payment, or (b) that any such payment made by him is less than the amount which should have been paid. (2) An employment tribunal shall not consider a complaint under subsection (1) unless it is presented— (a) before the end of the period of three months beginning with the date on which the decision of the Secretary of State on the application was communicated to the applicant, or (b) within such further period as the tribunal considers reasonable in a case where it is not reasonably practicable for the complaint to be presented before the end of that period of three months. (3) Where an employment tribunal finds that the Secretary of State ought to make a payment under section 182, the tribunal shall— (a) make a declaration to that effect, and (b) declare the amount of any such payment which it finds the Secretary of State ought to make. Tribunal’s Conclusions Wages claims against the First Respondent 16. These claims were brought outside the three month time limit. No grounds have been shown as to why it was not reasonably practicable to have brought the claims in time. The Tribunal has no jurisdiction to determine them and they are dismissed. Case Number: 3313070/2023. 7 The claim for a redundancy payment against the First Respondent 17. The claim against the first respondent cannot proceed and no award can be made against it as it has now been dissolved. Claims against the Second Respondent 18. The claims against the Second Respondent were received out of time, it being reasonably practicable to have presented them in time. 19. As such, the Tribunal does not have jurisdiction to determine the complaints against the Second Respondent and they are dismissed. Approved by: