Mr A Gao and Others v Mr Y Wang: 4102110/2025 and Others
JUDGMENT
The Tribunal does not have jurisdiction to determine the claimants’ claims of unlawful deduction from wages and the claims are dismissed.REASONS
[1]The claimants lodged claims on 9 July 2025 complaining that the respondent had made unlawful deductions from their wages. The claimants described themselves as a group of former employees of Uniview Restaurant whose sole director was the respondent. The claim forms narrated that Uniview Ltd was dissolved on 22 June 2021.[2]The claims related to furlough pay the claimants said they ought to have been paid between March 2020 until June 2021.[3]The respondent’s position was that he was not at any time the employer of the claimants and that in any event the claims were time barred.[4]A hearing was listed to determine the issue of time bar. In advance of that hearing the claimants provided further particulars of their claims on 15 October. The particulars stated that the claimants were at all material times employed by Uniview Limited. The particulars also stated that the claims had been presented within the statutory period or within a reasonable extended time. It was also said that it had not been reasonably practicable to lodge the complaints within the initial three-month period for the following reasons:a. During national lockdowns, tribunal and advisory services were largely inaccessible;b. The claimants were misdirected by the Sheriff Court procedure, causing further delay;c. They suffered serious financial hardship and could not obtain legal assistance; andd. The company’s dissolution and lack of communication from the director created uncertainty regarding the correct respondent.[5]The Tribunal wishes to record its grateful thanks to Ms Gu, the interpreter who provided interpreter services during the course of this hearing. Both the claimant and respondent had requested an interpreter, but the administration had only arranged for one interpreter and Ms Gu did an excellent job of taking a pragmatic approach to the difficulties to allow the hearing to proceed. The Tribunal was extremely grateful for her forbearance in that regard. Mr Gao represented himself and the other claimants at this hearing The respondent was represented by a solicitor, Ms Irvine.[6]The claimant explained that the other claimants had wanted to be present at the hearing but that some were now abroad. All parties were content to hear the evidence of Mr Gau in order to determine the case.[7]Mr Gau provided a written witness statement and although this had not been ordered, it was accepted as his evidence chief. He was then cross examined. Finding in fact[8]The Tribunal established the following facts:[9]The claimants had been employed by Uniview Limited, a company of which the respondent was the sole director. The company operated a Chinese Restaurant in which the claimants worked.[10]At the time of the initial lockdown due to the Coronavirus in March 2020, Mr Gao had been running the restaurant as Mr Wang, the director was in China. The restaurant in which the claimants worked was closed down in March 2020 and did not reopen.[11]The claimants contacted ACAS on 17 May 2021, and a certificate was issued on 18 May 2021. The claimants did not lodge a claim with the Tribunal at that time.[12]The claimants sought to lodge an Initial Writ at the Sheriff Court in Edinburgh in March 2022 claiming what they said was furlough pay owed to them by the respondent. That writ was not in a proper form, and the claimants were informed by the Sheriff Clerk of deficiencies in the writ and what further information was required. They were subsequently informed that the writ required further amendment and further guidance was provided. The claimants did not pursue that matter further and no Initial Writ was lodged.[13]Mr Gao had access to the internet at all times from March 2020. Discussion and decision[14]The claims were not lodged within the statutory period set out in section 23 Employment Rights Act 1996 which required a claim to lodged within three months of the last alleged deduction. The claimants allege that the last deduction took place in June 2021.[15]Section 23(4) provides that an Employment Tribunal may still determine a claim which has been lodged out of time if it is satisfied that it was not reasonably practicable for the claim to be lodged in time and it was lodged within a reasonable period thereafter.[16]In the present case, the claims were lodged at least four years after the last alleged deduction. While the tribunal accepts that the pandemic had an impact on the ability of potential claimants to obtain legal or other professional advice regarding Tribunal claims, the internet remained available during that period and advice and assistance could be obtained in this way.[17]Moreover, the claimants did contact ACAS in 2021, and it is not at all clear why having done so they did nothing further for a year when they sought to lodge an Initial Writ or indeed why they formed the view that this was the way to proceed.[18]Having failed to properly lodge an Initial Writ, it also was not at all clear why the claimants would wait a further three years before seeking to raise the claims in the Employment Tribunal.[19]The Tribunal is satisfied that it was reasonably practicable to have lodged the claims in time, on the basis that ACAS had been contacted in May 2021. In any event, waiting almost a further four years to raise Tribunal proceedings is not a reasonable period after the expiry of the statutory period. It is a wholly unreasonable period of time to wait to raise proceedings in the Employment Tribunal.[20]In addition, the Tribunal is mindful that the claimants accept that they were not employed by the respondent, but by a company which has been dissolved. Therefore, their claims against the respondent have no prospect of success taking into account that there is no allegation made by the claimants that the respondent was their employer at the material time.[21]In these circumstances, the Tribunal is satisfied that it does not have jurisdiction to determine the claims and therefore they are dismissed.