Ms Y V M Fernandez v Premium Support Services Ltd: 6003496/2024
JUDGMENT
The Tribunal does not have jurisdiction to hear the claimant’s claim for non-payment of her bonus from 2020 to 2023 (breach of contract or unlawful deduction from wages) as it was presented out of time.REASONS
[1]By a claim form presented on 2 February 2025, the claimant sought payment of her outstanding bonus payments from the years ending 2020, 2021, 2022 and 2023 totally £20,000. Early conciliation was entered into on 21 December 2024 and was completed on 14 January 2025. The claimant was employed by the respondent and (apparently) its successor from 5 August 2019 until her resignation on 14 February 2024.[2]By a response form dated 18 March 2025 filed on behalf of the respondent’s successor, Excellerate Services UK Ltd, it was pointed out that the claimant’s claim had been received outside the Tribunal’s primary three month time limit. By an order dated 29 April 2025, Employment Judge ordered the claimant to provide further information about her claim by 7 May 2025, in particular whether she contended that Excellerate Services UK Ltd was liable for her claim and whether she sought to join that company as a second respondent. It was also pointed out to the claimant that her claim appeared to be have been presented out of time and that the Tribunal would need to determine whether it was reasonably practicable for her to have presented a timely claim. If not, it would have to decide whether she had then presented the claim within a reasonable time thereafter.[3]The claimant did not comply with the Tribunal’s order. ON 3 June 2025 the respondent applied for her claim to be struck out accordingly. The claimant responded to this application on 8 June 2025, denying that she had received the order of Employment Judge Khan and explaining that she had made the claim to the Tribunal after a year of not having been paid her outstanding bonus.[4]The notice of the hearing was sent to the parties on 19 February 2025 and the parties were sent emails on 9 June 2025 requesting that they send in any documents on which they rely. The claimant responded to this by email dated 9 June at 18.09 sending in copies of her job offer and contract of employment from 2019. She did not send any documents relating to the time limit point. The claimant followed this up with an email to the Tribunal on the morning of the hearing requesting acknowledgement of receipt of her documents. The claimant’s correspondence was not copied to the respondent. The respondent has not received any communication from the claimant since her claim form was filed.[5]On the afternoon of the 9 June 2025 the parties were informed that their case was not currently allocated to a particular judge, but was in the floating list to be heard at 2pm on 10 June 2025.[6]The parties were contacted by email at around 2pm on the 10 June 2025 with an link to a hearing room once a Judge became available. The claimant did not respond to the email or attend the hearing. The Tribunal clerk tried to contact the claimant on a number of occasions by telephone to ascertain whether she was planning to attend the hearing, but without success. The Tribunal was satisfied that the claimant was aware of the hearing, given her earlier correspondence. It would be unusual for a claimant to be unable to respond to two different methods of contact (email and telephone) to explain her absence and/or that she was having difficulty joining the hearing. Whilst it is clearly possible that the claimant did not receive the Tribunal’s order of 29 April 2025, it remains the case that the claimant has not put forward any reasons for her failure to bring a timely claim, notwithstanding the fact that the issue was raised in the response form. The Tribunal must balance fairness to both parties in deciding how to proceed in the absence of one of the parties. In all the circumstances and having had no response to the Tribunal’s communications, the hearing proceeded in the claimant’s absence under rule 47 of the 2024 Rules.[7]Whilst the claimant has provided documentation relevant to her substantive claim, she has not explained what the barrier was to her presenting a timely claim. The claim was framed as a claim for breach of contract. As such, Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 provides that such a claim should be brought “within the period of three months beginning with the effective date of termination of the contract giving rise to the claim”, except where the Tribunal is “satisfied that it was not reasonably practicable for the complaint to be presented [within that time]” . If that is the case, the claim must be presented within such further period as the Tribunal considers reasonable. The applicable time limits can be extended to reflect any delay caused by the parties ‘engagement in early conciliation, but not in circumstances where ACAS have been contacted outside the primary time limit (as in this case).[8]The meaning of the words “reasonably practicable” has been considered by the higher courts on a number of occasions primarily in relation to the three-month time limit for presenting an unfair dismissal claim. The resultant case law establishes principles which apply equally to claims for unlawful deductions from wages, breach of contract and breach of the Working Time Regulations. The burden lies on the Claimant to prove that it was not reasonably practicable for him to present a timely claim (Porter v Bandridge Ltd [1978] 1 WLR 1145). In Palmer v Southend-on-Sea Borough Council [1984] 1 WLR 1129 the Court of Appeal held that the test equated to one of “reasonable feasibility” which fell somewhere between something which was physically possible at one end of the scale and pure reasonableness at the other.[9]The burden falls to the claimant to prove that it was not reasonably practicable for her to have brought a claim to the Tribunal by 13 May 2024 when the primary time limit expired. This was in circumstances where some of her claim had already been outstanding for four years. In her claim form the claimant suggested that she was assured by the Head of HR, Ms Kay Lewis, that the outstanding payment of her bonus would be paid in instalments (if not in a lump sum) before the end of 2024. Such a statement (if made) would not have prevented the claimant from filing a protective claim in the Tribunal. This is what she should have done. As such, it was reasonably practicable for the claimant to have filed a timely claim. The consequence of this is that the Tribunal does not have jurisdiction to determine the claimant’s claim.