Mr D Flowers v Leisure Box Fitness Ltd (in creditors voluntary liquidation): 6004030/2024
JUDGMENT
The judgment of the Tribunal is that:- The Tribunal does not have jurisdiction to decide the Claimant’s claim for unpaid wages on its merits, given the operation of statutory time limits. Accordingly, the claim is dismissed.REASONS
[1]The Claimant claims unpaid wages from his time working at the Respondent as a Personal Trainer. His case is that he was working from 2 November 2023 until 30 November 2023. At that point, the gym where he was working closed and he was not paid for the work he had previously done. Subsequently, on 22 February 2024 the Respondent entered creditors voluntary liquidation.[2]In the meantime, the Claimant contacted ACAS to start Early Conciliation on 2 February. An ACAS EC Certificate was issued on 15 March 2024. There was then an unexplained delay of just over three months until 17 June 2024 before these proceedings were issued. On the ET1, the Claimant named the company’s previous registered office address, rather than the current registered office address of the Respondent’s liquidators.[3]Although the ET1 Claim Form was accepted for administrative purposes, the Tribunal notified the Claimant that it may well have been filed out of time. This letter was sent to the Claimant on 15 August 2024. The deadline for the Respondent’s response was on 12 September 2024. The Respondent’s liquidators did not present an ET3 Response with the required timescale. It is unclear when the proceedings came to the liquidators’ attention. This seemed to have occurred sometime before 18 October 2024 when they emailed the Tribunal saying that they did not intend to be present at the Final Hearing. They did not present a draft ET3 disputing the claim nor apply for an extension of time to lodge such a document.[4]Neither party has attended today’s Final Hearing. No explanation was given by the Claimant for his failure to attend. When the Tribunal clerk attempted to telephone him to find out why he had not attended the hearing, there was no response.[5]Notwithstanding the non-attendance by both parties, there is sufficient evidence on the Tribunal’s digital case system to decide whether the claim has been issued within the required statutory time limits. Strict time limits apply to claims for unpaid wages. These are set out in Section 23 ERA 1996. 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 the dates of the payment of the wages from which the deduction was made. Essentially the Claimant ought to have brought his claim within three months of 30 November, as extended by the Early Conciliation Provisions. This pauses the time limit for the duration of the ACAS Early Conciliation process. ACAS Early Conciliation lasted from 2 February 2024 to 15 March 2024, a period of 41 days. The three-month limitation period expired on 30 February 2024, whilst Early Conciliation was still in progress. As a result, the statutory provisions grant the Claimant an extension to a month after the date of the Early Conciliation Certificate. The result is that these proceedings ought to have been presented by 14 April 2024 to come within the statutory limitation period.[6]These proceedings were not issued until 17 June 2024. They were therefore issued over two months after the limitation period ended. The Tribunal only has discretion to extend this statutory period if the Tribunal is satisfied that it was not reasonably practicable for a complaint to have been presented within the three-month period, as extended by the Early Conciliation provisions. As explained in subsequent caselaw, this requires the Tribunal to ask whether it was not reasonably feasible to bring these proceedings by 14 May 2024 and if not whether they were brought within a reasonable period thereafter.[7]On his Claim Form, the Claimant states that he obtained another job on 12 May 2024, paying £12,000 per annum. If the Claimant was able to apply for and obtain another job in late April or early May 2024, this indicates that it was reasonably practicable for these proceedings to be issued at that point. Because there is no evidence from the Claimant to explain the delay in issuing proceedings, he has not shown it was not reasonably practicable to issue proceedings by 14 May 2024.[8]As a result, the Tribunal does not have the jurisdiction to make any award to the Claimant for unpaid wages. This claim must therefore be dismissed.