Mr A Ozoemena v Claymore Contracting Services and Navigate Contracting Ltd: 4107851/2019
JUDGMENT
[1]The ET3 is allowed, although late, and the claim proceeds as defended by the first respondent; 2. the claims against both the first and second respondents are lodged out of time, and therefore this Tribunal does not have jurisdiction to hear the claims, which are dismissed.REASONS
[1]The claimant lodged a claim in the Glasgow Employment Tribunal on 26 July 2019. The claimant had contacted ACAS on 24 July 2019 in respect of claims against both respondents and an ACAS certificate was issued on 25 July 2019.[2]The first respondent in the claim is Claymore Contracting Services (“Claymore”), and the address stated to be 22 W Burn St, Greenock, England (sic), PA13 1JR. The second respondent was named as Navigate Contracting Limited (“Navigate”), which is a company based in London.[3]It is now clear that the address for the first respondent is incorrect, and therefore the address has been amended to 67 West Blackhall Street, Greenock.[4]In the ET1, the claimant stated that he is claiming holiday pay and arrears of pay. He complains that during his employment, his employers were unlawfully deducting employers’ NI contributions, employers’ tax and employers’ pension from his advertised rate of pay. He also stated that both respondents had refused to pay any holiday pay or offer holiday entitlement as specified by the contract and in terms of the Working Time Regulations.[5]The claimant also made reference in the ET1 to a claim which had been pursued in the London Central Tribunal last year (case number 2206773/2018), where at a preliminary hearing “the charges were dropped against these two as claims were seen to be for the 3rd party involved. This court has so far dismissed the third party and found that claims should be against these two parties mentioned in the claim as they were the parties who made the unlawful deductions…”[6]By letter dated 1 August 2019, the claimant was advised that the claim had been accepted by the Glasgow Employment Tribunal and the claim form was copied to both respondents. All parties were advised that a final hearing would take place on 9 October 2019 at 11.30 am, scheduled for one hour.[7]In that letter dated 1 August 2019, parties were also advised that the claim had been accepted although it appeared that the claim had been submitted outwith the relevant time period. The respondents were advised that if they intended to defend the claim then they would require to lodge a defence by 28 August 2019. Neither respondent lodged a defence by that date.[8]By e-mail dated 19 August 2019, the claimant provided a “schedule of loss” to the Tribunal, copying in both of the respondents (ghall@claymorecontracting.com and info@navigatecontracting.co.uk ).[9]The claimant stated that he was owed £5,243.37 in total from Claymore, comprising unlawful deductions of employers’ national insurance from week 41 of 2018 to week 14 of 2019; plus 14 days of unpaid holiday pay of £2,720.[10]He also claimed from “Navigate Contracting Limited (Glenlee Limited)” a total amount of £6,174.94, comprising unlawful deductions of employers’ national insurance, employers’ apprenticeship levy, and employers’ pension from week[15](2019) to week 39 (2019); plus unpaid holiday pay of £2,720.11. By letter dated 11 September 2019, copied to both respondents, the claimant was advised that Employment Judge Gall had directed that the case should proceed to a three hour hearing on 9 October 2019, and that at the hearing the issues of time bar; previous cases referred to in the claim form; correct respondent and any relevant claim; would be the subject of determination. The claimant was also asked to clarify the reference to Glenlee Limited and to confirm who it was that he claimed was liable for any sums owed to him.12. The claimant responded by e-mail dated 11 September 2019 stating that he considered that both employers were liable for the sums owed. He referred to the first respondent’s address at 67 West Blackhall Street, Greenock.13. An amended notice of hearing was issued to all three parties advising that the final hearing would take place on Wednesday 9 October 2019, commencing at 10 am and lasting three hours.14. On 2 October 2019, Mr Alasdair Mitchell, managing director of the first respondent Claymore, e-mailed the Employment Tribunal to advise that he was not aware of the pending hearing or the claim at all until he received a call from Peninsula asking if they wanted representation at the hearing. He advised that the notice of claim had been served on 22 Westburn Street Greenock, premises which they had left over 4 years ago. He asked for an extension of time to lodge their defence. 15. The first respondent was advised, by letter dated 3 October 2019, that his application for an extension of time for presenting an ET3 must be accompanied by a draft ET3 defence form, advising that the hearing on 9 October remained in place.[16]By e-mail dated Friday 4 October 2019, Mr Mitchell forwarded a draft ET3, explaining that the reason he had not attached a draft ET3 to the original e-mail requesting a time extension was that he had no details of the claim, and was not able to complete the ET3 until he had received it.[17]That e-mail was not considered by an Employment Judge until 8 October 2019. Parties were then advised that the final hearing would proceed as intimated on 9 October, and that the first respondent’s application for extension of time to lodge the ET3 although late would be dealt with at the start of the hearing.[18]Also that day, 8 October 2019, the claimant advised that the earliest he could attend the Tribunal hearing was 10.45 am, because he had arranged his flight (from London) when the hearing had originally been intimated to him, and he had understood that the hearing would commence at 11.30 am.[19]Parties were therefore advised the hearing would commence at 11 am. Having originally been scheduled to take three hours, the hearing was therefore due to conclude at 1 pm.[20]Although the second respondent has not lodged a defence to the claim, a Brian Conaghan e-mailed the Tribunal after close of business on 8 October 2019, enclosing a copy of the “Navigate New Umbrella Contract of Employment” and stating: “Attached is Navigates PAYE contract. Mr Ozemena is paid in accordance with this contract and all holiday pay was paid in accordance with this contract and it is not true that any holiday was not paid or refused to be paid. Mr Ozemena’s contractual rate is £8.21 and holiday pay rate is paid in additional to basic rate, which has all been paid in accordance with contract and legislation. All of which I can prove. If the judge requires any additional information I will be more than will to oblige”. The Tribunal clerk was also advised that the second respondent did not intend to attend the hearing. No ET3 form was however lodged.Hearing
[21]At this hearing the claimant represented himself. Mr Mitchell represented the first respondent. Both parties had brought documents. There was a great deal of confusion around the documents lodged, which were not correctly numbered or in any obvious order. Copies of certain documents were made by the clerk. We eventually proceeded on the basis of referring to three bundles lodged by the claimant. Bundle 1 was apparently the documents which the claimant had lodged for his claim which proceeded in London Central Employment Tribunal. Bundle 2 (which had some overlapping numbers) is understood to be additional documents in support of the claim, mainly payslips from Claymore and Navigate. Bundle 3 is the claimant’s statement of evidence, a copy of an ACAS EC certificate dated 27 October 2018 (citing the prospective respondent as Claymore Contracting Services) and a copy of the decision dated 24 July 2019 following the hearing of the case in London Central before Employment Judge Hildebrand against LJB Management and Recruitment Services Ltd t/a LJB & Company. Mr Mitchell had also brought a file of papers with him but these were unnumbered and some were very poor copies of photographs.[22]At the outset of the hearing, Mr Mitchell said that while he had very limited notice of this hearing, and therefore had little or no time to prepare, he was conscious that the claimant had travelled from London, and despite the lack of time to prepare, he said that he was willing to proceed. He explained that the documents which he had brought along were those which he could easily access from his system, and not necessarily all the documents which he could rely on. Extension of time for first respondent to lodge ET3[23]I first considered the first respondent’s application to extend time and to lodge the ET3 out of time.[24]Mr Mitchell explained that he had no knowledge at all of the claim. He explained that the claim form had been sent to a previous address which had a redirect for one year, but that they had not used this address for four years.[25]The application was opposed by the claimant. He stated that the Greenock address which he had used was the address which was used in the documents which had been issued to him. He said that he had informed the Tribunal of the correct address in the e-mail to the Tribunal of 11 September 2019. He complained that this claim had already been progressing for 14 months and during that time he had been corresponding with the first respondent, as had ACAS. He submitted that the first respondent was well aware of the claim.[26]I noted that the ACAS certificate of 24 July 2019 identified the prospective respondent as having a place of business at 22 W Burn St Greenock PA12 1JR. Although the claimant had on occasion apparently copied in the first respondent to e-mails to the Tribunal, these e-mails were not sent to Mr Mitchell and it could not be known whether they reached any other recipients. The claimant had made reference to the correct address in the e-mail of 11 September 2019, but not for the purposes of bringing to the attention of the Tribunal the fact that an error had been made and should have been corrected. The claimant said that the first respondent had known about the London case, and I did note that the prospective respondent in the EC certificate dated 27 November 2018 was stated to by Claymore Contracting Services at 67 West Blackhall Street. I noted that this was the address in the contractual documents exchanged by the parties (first respondent’s documents and claimant’s documents bundle 1 DA5). I noted however from Judge Hildebrand’s judgment that it is stated (at paragraph 8) that there was no claim made against Claymore Contracting Services. Indeed, Mr Mitchell said that he was not aware of the London case.[27]I accepted Mr Mitchell’s assertions that he had not been aware of the case until he had received the call from Peninsula. I noted that once he was aware of it, he had acted quickly, and attempted to comply with the requirements of the rules despite not yet having consulted a lawyer. I noted that he had attended this hearing with a view to defending his company, and that he said that he believed that he had a complete defence to the claims being made by the claimant.[28]In the circumstances, I decided that I would allow the ET3 to be lodged although late. To refuse the application, given the first respondent’s assertions regarding their defence, would be to prejudice them by not permitting them to air their defences. The only prejudice to the claimant, if the claimant’s claims are wellmade, is a further delay to the conclusion of his claim. Procedure at hearing[29]Although Mr Mitchell had some reservations about proceeding, ultimately he said that he was happy to do so given that the claimant had travelled from London, in order that the matter could be settled, and in the hope that parties did not require to return.[30]It seemed to me that progress could be made, at the very least, in ascertaining whether the claim was time barred; the correct identity of the respondent; and identifying the substantive issues for determination.[31]I proceeded therefore to hear evidence on oath from the claimant.[32]During the course of evidence, it became evident that Mr Mitchell was not after all in a position to respond to the claimant’s accusations regarding unlawful deductions. It seemed to me that it was unfair to proceed further when it became clear that Mr Mitchell would require to confirm the statutory basis on which the disputed deductions were made (or produce an agreement regarding those deductions). In any event, by this stage, it was also clear that it would not be possible to conclude matters within the time allocated, which originally was three hours but which was limited to two hours. Further it seemed to me that Mr Mitchell would wish to give further consideration to his position and if necessary seek legal advice.[33]In such circumstances the hearing was adjourned part-heard.[34]It seemed to me, that on the basis of the evidence which I had heard, and subsequent discussions, it was appropriate for me to issue a determination on the preliminary issues only. This was because the identity of the employer, discussed below, was a matter of agreement. While I was of the view that it was also possible to determine the time bar question, I decided that it was prudent to write out to parties to invite them to make any additional written submissions before I made my final determination on the point. Findings in fact (limited to preliminary issues)[35]Following the evidence which the Tribunal heard, and taking account of the documents lodged and the agreements about the facts, the Tribunal finds the following facts admitted, agreed or proved.[36]The claimant is a qualified banksman. He holds a banksman’s certificate and a CSCS card (Construction Skills Card Scheme). In February 2015, the claimant had registered as a sub-contractor (sole trader) under the Construction Industry Scheme with HMRC (claimant’s documents, bundle 1, marked DA2/2) and for self-assessment for tax (claimant’s documents, bundle 1, marked DA1/1). The claimant subsequently undertook contracts both on a self-employed basis and an employed basis.[37]At the beginning of January 2018, he applied for a job as a banksman/first-aider which was being advertised on-line by an employment agency called LJB & Co. The claimant was engaged by them to work for their client, OD Interiors Ltd, on a project for Marks and Spencer at their HQ in Paddington.[38]On 5 January 2018, LJB & Co wrote a letter to the claimant headed up “Contract for Services”, stating “I write to confirm the details of your temporary contract with OD Interiors Ltd. You have chosen to provide your services as a consultant through Claymore Contracting Services Ltd. They will issue you with comprehensive terms and conditions of engagement”. The contract start date was stated to be 5 January 2018, with “agreed fees” of £13 per hour and a contract duration stated to be “on-going until completion”. Under “payment terms” it was stated that “payment is made upon receipt of your company invoice and a signed time sheet”. Under time sheets it was stated “go to www.ljbrecruit.com select Candidates/Temp Zone/Single Time sheet”.[39]LJB thus appointed Claymore to be his “payroll company”. On 9 January 2019, the first respondent forwarded an “employee registration document umbrella” and “statement of main terms and conditions of employment” to the claimant. On 10 January, the claimant completed an “employee registration document umbrella” and signed the “statement of main terms and conditions of employment” (see production DA5 of claimant’s bundle and clean copy in first respondent’s productions). In that document, the first respondent is described as “the employer”.[40]At paragraph 25.1 of that document, it is stated that “These terms and conditions of employment are governed by Scottish law and any dispute that arises out of your employment will be determined by the Courts and Employment Tribunals of Scotland”.[41]The claimant described himself as a “self-employed trader”. In respect of this contract, the claimant was engaged as a site foreman. He determined how many hours he worked each day. At the end of each week, he sent a time sheet which he had completed to the project manager for the client, OD Limited (Gavin Wales). The project manager would sign off the sheet, and forward it to the payroll company (see example claimant’s bundle 2, page 59). The claimant would receive a payslip which set out both company deductions and employee deductions.[42]With regard to the payslips received from the first respondent, (bundle 2, pages, 63 – 85 and 112 – 207) the claimant takes issue with the deduction, highlighted on each pay slip under the heading “expenditure” of employers’ national insurance.[43]The claimant’s employment with the first respondent ended on 2 July 2018. The claimant stated that was because he was unhappy with these deductions being made.[44]In or around July 2018, the claimant was appointed site foreman. His pay increased at that time to £17 per hour. At that time it was agreed that the payroll company would change from the first respondent to the second respondent. The claimant’s employment with the second respondent commenced on 2 July 2018.[45]On 10 July 2018, LJB wrote a letter to Gavin Wales of OD Interiors Ltd, headed “Confirmation of Order – Mr Arinze Ozoemena” which stated: “I am writing to confirm the details of an agreement for the supply of a Temporary Worker”. At paragraph 2, it is stated that “the agreed hourly charge rate is £19.50 – inclusive of Employer’s NIC and holiday pay. Trade discount or industry levies cannot be deducted by the client”. It is also stated at paragraph 5 that “Temporary workers are supplied under the client’s supervision, direction and control. The client is also responsible for the temporary worker’s health and safety”. And at paragraph 6, “We are not subcontractors and introductions are subject to our terms of business. These terms supersede the conditions of any purchase order you may have placed”.[46]The arrangement regarding the submission of hours worked to the project manager, which were forwarded to the payroll company, continued with the payroll company now being Navigate, the second respondent. Navigate supplied the claimant with wage slips showing deductions (see claimant’s bundle 2, pages 58-65, page 86 and pages 89 to 111). These show that certain “company deductions” were made. The claimant takes issue with the company deductions for employers’ national insurance, apprenticeship levy and employer pension contributions. These also show “employee” deductions, namely employee tax and national insurance and employee pension contributions. The claimant takes issue also with the employee pension contributions.[47]The claimant was employed by the second respondent until 4 January 2019. From 7 January 2019, the claimant supplied his consultancy services to LJB & Co. through his own company, Ozpire Ltd (claimant’s bundle 1, DA13, page 41).[48]On 27 October 2018, the claimant contacted ACAS in respect of early conciliation, and an EC certificate was issued on 27 November 2018 citing Claymore Contracting Services (address 67 West Blackhall Street) as a prospective respondent (claimant’s bundle 3).[49]On 31 October 2018, the claimant e-mailed Navigate and Margaret Lynch at LJB as follows: “To whom it may concern most! Please can you clearly explain to me the deductions on my pay slip and wages? May I know why this deductions have taken place and do we have any legal binding on that? Why I’m paying dual pension contributions, dual taxes and dual national insurance contributions? I will use this medium to nicely ask you to return every single penny of these deductions starting from the beginning of this employment dated back to July 2018. Until this issue is resolved, please do not handle my wages again”.[50]The claimant subsequently lodged a claim in London Central Tribunal on 26 November 2018. A judgment was issued by London Central Employment Tribunal on 24 July 2019 (claimant’s document’s bundle 3). The judgment in that case was as follows: “1. The name of the Respondent is amended to LJB Management and Recruitment Service Limited trading as LJB & Company. 2. The claimant’s claims of race discrimination, whistleblowing and for unpaid annual leave are dismissed having been withdrawn at a preliminary hearing on 12 April 2019. 3. The claimant’s application to amend his claim to add a claim of unpaid holiday pay is refused. 4. The claimant’s remaining claim of unlawful deduction of wages fails and it is dismissed.”[51]Under a section headed “procedural history”, it is stated, inter alia, as follows: “4. I first deal with the position of the second respondent….in this case the claimant produced a claim form in relation to his engagement as an agency worker. He claimed against the employment agency, LJB & Company Recruitment, correctly LJB Management and Recruitment Service Ltd, the trading name of the respondent. He also named Navigate Contracting/Glenlee Limited, as second respondent. This is the name of the payroll company which was responsible for paying the claimant during part of the period of his engagement with OD Interiors Limited. 5. The claimant was paid through Claymore Contracting Services Limited from his start on 5 January 2018 to 5 July 2018. He was paid through Navigate from 11 July 2018 to 7 January 2019. From 7 January 2019 he has been paid through his own limited company Ozpire Ltd and there is no claim after that company was appointed. Notwithstanding the fact that the claimant named Navigate on the claim form there was no ACAS certificate number supplied for that respondent. The form was referred to a judge who directed the rejection of the claim against Navigate. 6. The claim was presented on 26 November 2018 and referred to a judge who on 18 December 2018 directed rejection against the second respondent. Notice of rejection was given on 5 February 2019. The claimant wrote on 13 February by e-mail to say that he had brought proceedings by the claim against all three companies, namely LJB, Claymore and Navigate. The response to the rejection was not referred to a judge. When the response to the claim was referred the judge directed that the preliminary hearing for case management should remain as listed. 7. In his agenda for the case management hearing the claimant wrote, in response to the question whether anyone should be joined: Yes, as with initial application Navigate/Glenlee and Claymore, contracts, purchase orders, ACAS included as proof. The claimant provided a substantial bundle of documents at that time which was placed on the Tribunal correspondence pin. 8. At the preliminary hearing, the claimant indicated that he did not pursue the application to join the payroll companies. He said there had been a change in the law whereby the agency became his employer and the recruiter was responsible for payment of national insurance irrespective of the umbrella company. In light of what took place at the preliminary hearing it would therefore be inappropriate to reopen the issue of the rejection of the claim against Navigate and the absence of any claim against Claymore”.[52]Under Findings of Fact at paragraph 13, it is stated that: “The evidence supplied no insight into how the payroll company was selected. I find that it was unconnected with LJB and LJB has not benefited from any deductions imposed on the claimant. As a banksman first aider and later as foreman I found the claimant worked as a selfemployed person, to use his own words. He chose his hours and decided on his holidays. He used his own equipment and OD also supplied some equipment. LJB had no control over what he did or when he did it. When the claimant was appointed foreman, his pay increased to £17 per hour. He asked for another payroll company to be appointed, and Navigate of whom he had previous experience, were appointed”.[53]In that case, the Employment Judge concluded that the claimant was not an employee of LJB Management and Recruitment Services (the only respondent in that case). The Employment Judge however went on to state, at paragraph 23, “By contrast the documentation appears strongly to suggest that he was an employee of successively Claymore, Navigate and Ozpire Ltd”.[54]On 24 July 2019, the claimant contacted ACAS in respect of early conciliation in regard to claims against the first and second respondent. An early conciliation certificate was issued on 25 July 2019.[55]On 26 July 2019, the claimant lodged this claim in the Employment Tribunal in Glasgow against both respondents. Preliminary issue – identity of employer[56]During the course of the hearing, it became clear that there was no dispute between Mr Ozoemena and Mr Mitchell that the claimant had been employed by the first respondent from 4 January 2018 to 2 July 2018. This was a matter of agreement and Mr Mitchell confirmed that he was clear about that.[57]The claimant also accepted that he had been employed with the second respondent from 2 July 2018 until 4 January 2019. Preliminary issue – time bar – first respondent[58]As discussed above, I invited both parties to lodge written submissions specifically on the time bar point.[59]Mr Mitchell confirmed that the first respondent accepted they were the claimant’s employer from 4 January 2018 to 29 June 2018 and that he was last paid on 6 July 2018.The claimant left of his own accord and his employment was not terminated. It took him at least until March 2019 before he raised any form of complaint/action, even thought this was not against the first respondent, which was a full 9 months after he had terminated his employment with them. Mr Mitchell submitted that the claimant had ample opportunity to raise a claim/complaint against the first respondent but failed to do so or chose not to, and he has therefore failed to meet the conditions of the Employment Rights Act 1996, section 111(2) so does not meet the time bar requirements.[60]Mr Ozoemena explained that his last payment on this job was 16 June 2019, placing his claim within the three months end of employment. The case should be heard because the claimant was never dismissed, his employment was never terminated nor was any word nor documents issued in relation to ending his employment with the first or second respondents. ACAS was again notified in July 2019 and a new certification was issued.[61]Mr Ozoemena submitted that the employment tribunal may consider the complaint even if it was out of time. In this case he argues that it is just and equitable to do so because the case has not passed the two year period (by reference to the Deduction from Wages (Limitation) Regulations 2014).[62]When considering this question, I took account of the fact that it was a matter of agreement at the hearing that the claimant’s employment with the first respondent had ended on 2 July 2018. The claimant did not however lodge a claim against the first respondent in this case until 26 July 2019.[63]Section s111(2) of the Employment Rights Act 1996 states that an employment tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the effective date of termination 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.[64]In this case it is clear that the claim was lodged outwith the three month period. Where the claim is lodged out of time, the tribunal must consider whether it was not reasonably practicable for the claimant to present the claim in time, the burden of proof lying with the claimant. If the claimant succeeds in showing that it was not reasonably practicable to present the claim in time, then the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. This is a question of fact for the Tribunal (Walls Meat Co Ltd v Khan 1979 ICR 52).[65]The Court of Appeal in the case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 considered the meaning of the phrase “not reasonably practicable”. In that case Lord Justice May said that “we think that one can say that to construe the words “reasonably practicable” as the equivalent of “reasonable” is to take a view that is too favourable to the employee. On the other hand, “reasonably practicable” means more than merely what is reasonably capable physically of being done.... the words...mean something between these two. Perhaps to read the word “practicable” as the equivalent of “feasible” as Sir John Brightman did in [Singh v Post Office [1973] ICR 437, NIRC] and to ask colloquially and untrammelled by too much legal logic— “was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?”—is the best approach to the correct application of the relevant subsection.”[66]On the question of whether it was not reasonably practicable to lodge the claim in time in this case, here the claimant did lodge a claim in respect of the issue in October 2018. Although the claimant has produced an EC certificate relevant to that time period, the decision of the London Central Employment Tribunal makes it clear that no claim was pursued against Claymore in those proceedings (although it is noted that the claimant stated that he had lodged a claim against Claymore but equally that he had in any event decided not to further pursue the claim against the payroll companies).[67]Clearly it was feasible for the claimant to have lodged a claim against the first respondent within the three months of the last disputed deduction, because he had consulted ACAS and he had lodged a claim in respect of the issues in question against another respondent.[68]In such circumstances, I had to conclude that it was reasonably practicable for the claimant to have lodged an in-time claim against the first respondent. The claim is lodged out of time. This Tribunal therefore does not have jurisdiction to hear it, and it must be dismissed. Preliminary issue – jurisdiction – second respondent[69]This claim is also pursued against the second respondent. Although it was not initially clear, it is now clear that the claimant is not seeking to suggest that he was working for two different employers simultaneously but rather that he was employed by them consecutively.[70]The claimant was clear in his evidence that he had commenced employment with the second respondent on 2 July 2018, and that employment had terminated on 4 January 2019.[71]Further, the claimant stressed in submissions that he believed that he should be entitled to the sums due from the second respondent because they had not lodged a defence to a claim.[72]However, no claim can validly be pursued against a respondent, even one which does not lodge a defence, unless the Tribunal has jurisdiction to hear the claim. The rules on time limits set out above are clear. In order for the Tribunal to have the jurisdiction to hear a complaint a claim must be lodged within three months of the last deduction.[73]As noted above, the time limit for making a claim against a respondent is three months from the date of termination of the contract. The claim not having been lodged until 26 July 2019, it is clear that the claim has also been lodged out of time against the second respondent. A claim should have been lodged within 3 months of 4 January 2019, that is by 3 April 2019.[74]Although it appears that the claimant did include Navigate as a respondent in the claim which he lodged on 27 October 2018, the claim was rejected against that company because it was understood that there was no EC certificate in relation to that respondent. Although I noted that the claimant said that there was an EC certificate, that certificate was apparently not produced to the London Central Employment Tribunal and it has not been produced to this Tribunal. But in any event, it is noted in the London Central Employment Tribunal decision that the claimant had decided not to pursue the claim against the payroll companies.[75]Again, while this Tribunal has a limited discretion to accept a claim out of time where it was “not reasonably practicable” to have lodged it in time, that could not be said to be the position here, where a claim had been lodged but dismissed and/or not in any event pursued. It could not be said that it was not feasible for the claimant to have lodged a claim, because he did in fact lodge an in-time claim which was not pursued.[76]As soon as the claimant became aware that the claim had been dismissed against LJB, he intimated the claim to ACAS and an EC certificate was issued the very next day, presumably with no conciliation having been attempted. By 26 July however, it was too late because the initial time limit was 3 April.[77]As the claim is lodged out of time, the Tribunal has no jurisdiction to hear the claim against the second respondent either, which is also dismissed.Conclusion
[78]This decision relates to preliminary issues only. Regrettably for the claimant, the Tribunal cannot rule on the substantive claims which he makes for technical but fatal reasons. It should be noted however that no comment is made on the substantive claims whether there was statutory authority or agreement to deduct the disputed sums, and in particular employers’ national insurance or pension contributions, or apprenticeship levy in this type of employment arrangement. It may well be that these are matters which could be pursued in the civil courts.