Mrs P WestClaimantPortland Care 5 LimitedRespondent
Before
Employment Judge OstIn person for claimantDate 19 September 2025
JUDGMENT
After consideration of the evidence provided and submissions made by each party at the Preliminary Hearing, the judgment of the Tribunal in relation to the time limits applicable to a complaint for accrued but unpaid holiday pay is as follows:[1]The claimant’s application for an extension of time under Regulation 30(2) of Working Time Regulations 1998 succeeds and, as such, the Tribunal has jurisdiction to consider her complaint at final hearing.
REASONS
[2]Mrs West was employed by the respondent as a carer, working at Greenacres Grange care home. Her employment started on 26 January 2023 and ended on 16 May 2024.[3]Mrs West says that she was not told that she was entitled to holiday/holiday pay and she did not receive any holiday pay whilst employed by the respondent. Mrs West says that she was told in or around February 2024 that she should have received holiday/holiday pay. She says that she was told by the respondent that it was dealing with correcting that failure. However, Mrs West says that it was not dealt with during her employment. PHCM Order 1 of 9 September 2023[4]Mrs West’s employment ended on 16 May 2024. She commenced early conciliation with ACAS on 28 November 2024 and it ended on 9 January 2025. Mrs West submitted a claim for holiday pay on 9 January 2025.[5]The Respondent submitted its response form on 20 February 2025. The respondent indicated that it resisted Mrs West’s claim.[6]The dates of termination of employment, the ‘stop the clock’ period of early conciliation and the submission of the claim indicate that Mrs West submitted her claim substantially outside the primary time limit of three months in which to bring a claim for holiday pay under Regulation 30(2)(a) of the Working Time Regulations 1998. The claim was originally listed for final hearing on 25 April 2025 at which the time limits would have been addressed and, if appropriate, any other issues to be determined.[7]The respondent noted Mrs West’s claim appears to be substantially outside the primary time limit of 3 months both in its response form and the covering email. It described this as a ‘time bar’. The respondent wrote to the Tribunal by email on 21 April 2025 and applied to have Mrs West claim struck out on the basis of the ‘time bar’.[8]However, on 24 April 2025 the hearing was postponed by Employment Judge Heap due to limited availability of Judges. Within the correspondence the Tribunal notified that the parties that “before the full hearing can be relisted the Tribunal need to determine if they have jurisdiction to hear the claim because it appears that the claim for has not been presented within the appropriate statutory time limits.” Employment Judge Heap then gave directions for the preliminary hearing (which is the hearing which has now taken place). Mrs West was warned that the Tribunal would consider striking out her claim under rule 38 of the relevant rules if it determined that it had no jurisdiction to hear her claims. Mrs West was also warned that it was her responsibility “to persuade the Tribunal that it was not reasonably practicable to present the claim form in time and that it was issued within a reasonable time thereafter” Mrs West was directed to prepare a file of relevant documents and a witness statement dealing with why the claim form was not presented in time and why it is said that it was not reasonably practicable for her to do so.
The Hearing
[9]The preliminary hearing took place on 21 August 2025. It took place as a hybrid hearing at the Respondent’s request made on 6 August by Ms Connolly on Mr Mitchell’s behalf.[10]Mrs West attended the hearing to represent herself. She was supported by her husband who attended with her but he did not take part. Mr Mitchell attended the hearing on behalf of the respondent. A colleague, Ms Connelly, also attended with Mr Mitchell but, similarly, she did not take part.[11]The Tribunal explained that Mrs West appeared to have not submitted her claim within the primary time limit specified in the relevant legislation, which is Regulation 30(2)(a) of the Working Time Regulations 1998. Therefore, the Tribunal would only have the jurisdiction (i.e. the lawful ability) to determine her PHCM Order 2 of 9 September 2023 claim at a hearing if she was successful in persuading the Tribunal today that it should extend the time to submit her claim form under the test set out in Regulation 30(2)(b). The Tribunal explained the two stages of the extension test within Regulation 30(2)(b):11.1 firstly, was it not reasonably practicable to present the claim within the time limit, and if it was not reasonably practicable;11.2 secondly, was the claim presented within such further period as the Tribunal considers reasonable.[12]Mrs West accepted that her claim had not be submitted within 3 months of the last day of her employment and indicated that she would like the Tribunal to extend the time for submission of her claim so that her complaint could be heard.[13]Mrs West had brought a small bundle of 12 pages for the hearing. (References to pages in this Judgment are references to pages within that bundle.) Within the bundle Mrs West had provided a short one page witness statement (page 2 of her bundle) for the hearing. The Tribunal ensured that Mr Mitchell received a copy of the bundle including the witness statement and had time to consider it before proceeding further. Mr Mitchell confirmed when he was ready to continue.[14]The parties were given 15 minutes to plan what they wanted to say to the Tribunal about the extension test which had been described and to make notes to assist them.[15]Mrs West’s witness statement was taken as read before Mr Mitchell cross examined her before the Tribunal asked some clarification questions.[16]In response to Mr Mitchel’s cross examination questions, Mrs West gave the following evidence:16.1 Initially Mrs West did not know about the right to bring a claim for holiday pay at all, so she did not know about a time limit for bring the claim.16.2 Mrs West went to Citizens Advice for help in resolving the respondent’s failure to pay her for holiday but they told her that they couldn’t help and they advised her to go to ACAS.16.3 Mrs West contacted ACAS in the next day or so after being advised to do so by Citizens Advice.16.4 Mrs West understood ACAS’ advice to be that she must send an email to the respondent to try to resolve the issue directly and wait 3 weeks for them to reply.16.5 Mrs West sent a short email to the respondent’s email address on 12 September 2024 (page 5 of her bundle) and it explicitly referred to the fact that she was doing what ACAS had advised her to do. Mrs West also provided the respondent’s response on 12 September 2024 (page 6 of her bundle) in which the responder told Mrs West that they were investigating her complaint. PHCM Order 3 of 9 September 202316.6 On 18 October 2024 Mrs West emailed the respondent’s payroll email address again because she had not heard anything. (Mrs West provided this email at page 7 of her bundle).[17]In response to the Tribunal’s questions Mrs West clarified as follows:17.1 She didn’t know the she could bring a claim for unpaid holiday pay to the Employment Tribunal until she was told of this by ACAS. She didn’t know whether ACAS had said this verbally at any point but they provided information in an email on 27 November 2024. (Mrs West provided at page 8 of her bundle an email from ACAS to her daughter dated 27 November 2024 which referred to her contacting the helpline that day and provided links to guidance on(a) the early conciliation requirement,(b) the Employment Tribunal procedure and forms, and(c) Employment Tribunal time limits.17.2 When she spoke to ACAS she understood their guidance to be that there was a process she had to follow to bring a claim in the Employment Tribunal so she followed the process.17.3 Mrs West said she didn’t do emails; her daughter had to send them, and do various tasks on Mrs West’s behalf.[18]The Tribunal found Mrs West to be extremely honest and unguarded, even when it was potentially harmful to her position.[19]Mrs West made submissions that she didn’t know that there was a claim she could bring until after she had spoken to Citizens Advice and then ACAS. She didn’t know there was a time limit. She believed that she had to follow the advice that ACAS gave her.[20]Mr Mitchell made submissions that Mrs West had not acted properly to bring the claim within the time limits. He said that lack of knowledge by Mrs West isn’t a defence. Mr Mitchell said that Mrs West could have submitted the claim in parallel with her complaints. He also said that he found it unusual that no-one from ACAS would have mentioned the time limits. He said that Mrs West had contact with Citizens Advice on 5 August 2024 and surely Citizens Advice would have told her about the claim and time limits. Mr Mitchell said that it would be surprising if Citizens Advice did not communicate the importance of the three month window. He said that other employees come into this country from abroad and they are able to find information about their rights on the internet in a short period. Mr Mitchel said that the period it took Mrs West to submit the claim was unreasonable and nothing in her statement explained the period. Mr Mitchel said the claim was a simple and straight forward claim which could be brought quickly. He said that there must have been multiple opportunities for Mrs West to submit her claim between 5 August and 27 November 2024. Mitchell submitted that Mrs West must have been told that and the period it took her to submit the claim was not reasonable. The Law PHCM Order 4 of 9 September 2023
The Law
[21]Regulation 30(2) of the Working Time Regulations 1998 states: “an employment tribunal shall not consider a complaint under this regulation unless it is presented—(a) before the end of the period of three months … beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made;(b) 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 or, as the case may be, six months.
Findings of Fact
[22]The applicable time period for Mrs West’s type of claim is three months. Mrs West’s last day of employment was 16 May 2024. Accordingly, the three month primary time limit expired on 15 August. Both parties accept that Mrs West did not submit her claim or start the early conciliation process at that point and therefore she did not satisfy the primary time limit in Regulation 30(2)(a) or obtain an extension under Regulation 30(2A). Mrs West started the early conciliation process on 28 November 2024. This means that Mrs West’s claim would be out of time unless the Tribunal determined that it had been presented 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[23]Whilst the Tribunal noted Mr Mitchell’s submission that there was no reason why Mrs West couldn’t submit the claim and do so in parallel, the Tribunal finds that Mrs West was not aware of her right to bring a claim until an unknown point between August and November.[24]The Tribunal had no evidence other than Mr Mitchell’s speculation to suggest that Mrs West knew about the ability to bring a claim any earlier than 27 November 2024. The Tribunal noted that elsewhere Mrs West took prompt actions whenever she became aware that action needed. A failure by Mrs West to take prompt action to submit her claim when she knew she should take action at that point, would be inconsistent with her approach at other points when she knew she had to take action. On the balance of probabilities, the Tribunal found that Mrs West became aware of the ability to bring a claim and the existence of time limits on 27 November 2024.[25]The Tribunal found that the reason why Mrs West did not present her claim during the primary three month period was her ignorance of her right to do so.[26]After observing and hearing from Mrs West today (whilst not wishing to be disrespectful towards her in any way) the Tribunal would describe her as being not competent in the most basic use of IT. The Tribunal noted Mr Mitchell’s PHCM Order 5 of 9 September 2023 comments about other people (he gave the example of new workers who have recently arrived from other countries) who work for the respondent who are able to search for and quickly obtain information about their rights online. However, the Tribunal’s task is to assess whether it was reasonably practicable for Mrs West to undertake those tasks, not ‘an average person’ or an average worker for the respondent. The Tribunal found that Mrs West was not reasonably able to investigate these things for herself using the internet or other online sources of information.[27]It was obvious to the Tribunal that Mrs West struggled to understand standard communication addressing legal issues, including the correspondence from the Tribunal and relies entirely on others to explain it to her. Mrs West has clearly struggled to understand the most basic written descriptions of the Tribunal process, to her own detriment at times. The Tribunal found that Mrs West struggles to understand rules regarding legal processes as they are commonly expressed online; and this would be the case even if she was taken to such guidance.[28]The Tribunal found that Mrs West took active steps to seek free advice from responsible and legitimate sources in the form of Citizens Advice and ACAS. The Tribunal found that she wholly trusted and relied upon the guidance she was given by those legitimate sources of guidance, in particular ACAS. The Tribunal finds that Mrs West understood from ACAS that she needed to exhaust the complaint process with the Respondent about the missing holiday pay and she did so in September and October 2024.[29]The Tribunal noted that the respondent told Mrs West by email (at page 6) that it was investigating her complaints and found that this led her to wait for their response before returning to ACAS to seek advice on what to do it the respondent wouldn’t pay to her the holiday pay. On 27 November 2024 Mrs West contacted ACAS via her daughter to obtain more advice and ACAS provided information by email to Mrs West’s daughter about the early conciliation and the employment Tribunal process. Once that information was received, Mrs West promptly started the early conciliation process on the very next day, 28 November 2025. On 9 January 2025 the early conciliation process expired and Mrs West submitted her claim to the Tribunal on the same day.[30]The Tribunal found that Mrs West relied on what she understood ACAS to have told her about the steps she needed to take before she could issue her claim.[31]The Tribunal found that at each stage when Mrs West was guided to take a particular step she acted promptly: when advised by Citizens Advice to contact ACAS she contacted ACAS within a day or so; when ACAS provided information about the early conciliation process she started that process the same day; when ACAS notified her that the early conciliation period had expired she submitted her claim to the Employment Tribunal on the same day. This demonstrates an urgency of action and an attitude of prompt compliance with the guidance given by those unpaid advisors on whom Mrs West was relying. Analysis & Conclusions PHCM Order 6 of 9 September 2023[32]The Tribunal first addressed stage one of the test in Regulation 30(2)(b) of Working Time Regulations 1998: was it not reasonably practicable to present the claim within the time limit. The burden of proving this was on Mrs West (As per Porter v Bandridge Ltd [1978] ICR 943 EWCA).[33]Most of the case law on the ‘not reasonably practicable’ test relates almost entirely to unfair dismissal claims under the Employment Rights Act 1996. However, the EAT made it clear in GMB v Hamm EAT 0246/00 that the words ‘not reasonably practicable’ are to be given the same meaning whenever they appear in an equivalent context in comparable legislation, so similar considerations will apply to all other statutory employment claims using the same formula. Regulation 30(2)(b) of Working Time Regulations 1998 uses the same formula.[34]In Lowri Beck Services Ltd v Brophy 2019 EWCA Civ 2490, CA, Lord Justice Underhill set out the essential points established in the case law: the test should be given a liberal interpretation in favour of the employee (as per Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA). the statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was ‘reasonably feasible’ for the employee to present his or her claim in time. if an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable. If it is not, then it will have been reasonably practicable for the employee to bring the claim in time. However, it is important to note that, in assessing whether ignorance or mistake are reasonable, it is necessary to take into account any enquiries which the employee or his or her adviser should have made if the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (see ‘Advisers at fault’ below) the test of reasonable practicability is one of fact and not of law.[35]When assessing the “reasonably practicable” element of the test, the question which the Tribunal has to answer is “what was the substantial cause of the employee's failure to comply” and then assess whether, given that cause, it was not reasonably practicable for the claimant to lodge the claim in time, London International College v Sen [1992] IRLR 292, EAT and [1993] IRLR 333, Court of Appeal and Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119. 33. The Tribunal had found that the reason why Mrs West did not present her claim during the primary three month period was her complete ignorance of her right to do so.[36]A claimant’s complete ignorance of his or her right to claim unfair dismissal may make it not reasonably practicable to present a claim in time, but the claimant’s ignorance must itself be reasonable. As Lord Scarman commented in Dedman v PHCM Order 7 of 9 September 2023 British Building and Engineering Appliances Ltd, where a claimant pleads ignorance as to his or her rights, the tribunal must ask further questions: ‘What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?’[37]The Tribunal determined that in these particular circumstances, Mrs West ignorance of the right to bring a claim for holiday pay and the 3 month time limit within which to do so was reasonable.[38]Mrs West did not retain a skilled advisor but was reliant on free advice that she could obtain. Mrs West does not appear to have been told about the right to bring an employment claim for holiday pay and the relevant the time limit within three months.[39]When considering whether a particular step was reasonably practicable it is necessary for the Tribunal to consider the question against ‘the background of the surrounding circumstances and the aim to be achieved’ (as per Schultz v Esso Petroleum Ltd [1999] 3 All ER 338). The Tribunal considered this to be an unusual case but it found that the surrounding circumstances were Mrs West’s ignorance of her legal rights, her lack of IT competence so as to be reasonable able to conduct her own research online, the difficulty she would have and did have in understanding typical written guidance on legal process, and her reliance on others to obtain and explain legal guidance. On that basis, the Tribunal determined that it was not reasonably practicable for Mrs West to submit the claim within the primary three month time limit because the existence of the claim and the requirement of the time limit was not known to her and the Tribunal did not believe that this particular claimant ‘ought to have known’ (as per Avon County Council v Haywood Hicks [1978] IRLR 118).[40]Having determined that it was not reasonably practicable for the claimant to present the claim within the three month time limit, the Tribunal moved on to consider the second stage of the test: did the claimant present her claim within such further period as the Tribunal considers reasonable. This is to be determined objectively taking into account all material matters (as per Westward Circuits Ltd v Read [1973] ICR 301, NIRC) and considering all of the circumstances of the case, including steps taken by the claimant; the reasons for the delay; and what the claimant can be taken to have known about time limits (as per Nolan v Balfour Beatty Engineering Services EAT 0109/11).[41]The Tribunal again noted Mrs West’s ignorance of the right to bring the claim and the applicable time limits, her active pursuit of guidance from reputable providers of free advice such as Citizens Advice and ACAS, her reliance on that advice, and the representation by the Respondent that it was investigating her complaints as described above. The Tribunal determined that once Mrs West did become aware of the right to bring an employment claim for holiday pay and the relevant the time limits on 27 November 2024, she acted promptly (the next day) to comply with what she understood to be the early conciliation requirement. Similarly, once notified that early conciliation period ended on 9 January 2025, Mrs West promptly submitted her claim (on the same day). PHCM Order 8 of 9 September 2023[42]The Tribunal determined that Mrs West presented her claim within a further period which extended to 9 January 2025 and this period was objectively reasonable in the circumstances of the case.[43]After addressing the two-stage test set out in Regulation 30(2)(b) as described above, the Tribunal concluded that the claimant’s application for an extension of time under Regulation 30(2) of Working Time Regulations 1998 succeeds and, as such, the Tribunal has jurisdiction to consider her complaint at final hearing. Written Reasons[44]Mr Mitchell indicated at the hearing that the respondent would want written reasons. Approved by