Mr C Mighton v St Mungo Community Housing Association: 6027540/2025
EMPLOYMENT TRIBUNALS
Case No 6027540/2025
Between
Mr C MightonClaimantSt Mungo Community Housing AssociationRespondent
Before
Employment Judge RaoIn person for claimantRepresented by Ms G Nicholls (instructed by counsel, instructed by) for respondentDate 12 December 2025
JUDGMENT
[1]The relevant time limit for the complaint of unauthorised deduction from wages is set out in section 23 of the Employment Rights Act 1996.[2]The applicable time limit expired on 1 March 2015. The claim was filed on 24 July 2025. The complaint was not presented within the applicable time limit. For the reasons given below I find that it was reasonably practicable for the claimant to have presented his claim by 1 March 2015, and in any event the claim was not presented within a reasonable period thereafter.[3]The Tribunal does not have jurisdiction to determine the complaint of unauthorised deductions from wages and it is therefore dismissed. Unauthorised deductions from wages[4]In the alternative, for the reasons given below I also am satisfied that the grounds for striking out the claim under rule 38 apply, and that it would be in accordance with the overriding objective in rule 3 of the Employment Tribunal Procedure Rules 2024 to strike out the claim.[5]The complaint of unauthorised deductions from wages pursuant to section 13 of the Employment Rights Act 1996 is therefore struck out under rule 38(1)(a) because it has no reasonable prospect of success.
REASONS
[1]By way of claim form dated 24 July 2025 the claimant, Mr Mighton, brought a claim for unauthorised deduction from wages against the respondent, St Mungo Community Housing Association.[2]The sum in question is £268.57 which was deducted from the claimant’s payslip dated 30 November 2014.[3]By response dated 22 August 2025 the respondent resists the claim. The respondent says that the claim relates to a single deduction in 2014 and is well out of time with no prospect of an extension fairly being granted. Insofar as the claimant might be arguing that there has been a series of deductions (an inference based upon the quantum of compensation claimed in the ET1, £34,108.39), the respondent says that this is not sufficiently pleaded and the claimant would need to apply to amend his claim. In the alternative the respondent says that the claim should be struck out because it has no reasonable prospect of success, as the deduction of £268.57 was made lawfully in accordance with s.14(5) of the Employment Rights Act 1996.[4]The case was listed for a 1-hour final hearing today. It was clear that the substantive hearing could not be dealt with in that time. I therefore converted it to a preliminary hearing in public to consider the time limit and strike out issues.[5]I was satisfied that the claimant had sufficient notice of the issues, in particular the rule 38 strike out application, and had the opportunity to make representations and produce evidence in support of his case. The parties had attended today expecting a final hearing and the claimant was aware of the respondent’s application made in August.[6]I heard submissions from Ms Nicholls and from the claimant and I am grateful for their assistance. I additionally read witness statements from the claimant, and from Ms Whitefield, who was unavailable to attend, and Mr Newson, both of the respondent.
Law
[7]Section 23 of the ERA is mandatory: an employment tribunal “shall not” consider a complaint brought outside the time limit. The tribunal can consider a complaint if it is satisfied that it was not reasonably practicable to present the claim within the time limit, if it is presented within such further period as the tribunal considers reasonable.[8]What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. An appeal will not be successful unless the tribunal has misdirected itself in law or has reached a conclusion that no reasonable tribunal could have reached (Wall’s Meat Co Ltd v Khan [1979] ICR 52, CA).[9]The onus of proving that presentation in time was not reasonably practicable rests on the claimant. ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ (Porter v Bandridge Ltd [1978] ICR 943, CA).[10]In Palmer v Southend-on-Sea Borough Council [1984] ICR 372, CA, the Court of Appeal conducted a general review of the authorities and concluded that ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: ‘The relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’.[11]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:a. the test should be given a liberal interpretation in favour of the employeeb. 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 timec. 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 (see ‘Ignorance of rights’ and ‘Ignorance of crucial fact’ below). 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.[12]Ignorance of a fact that is ‘crucial’ or ‘fundamental’ to a claim will, in principle, be a circumstance rendering it impracticable for a claimant to present that claim (Churchill v A Yeates and Sons Ltd [1983] ICR 380, EAT, as approved in Machine Tool Industry Research Association v Simpson [1988] ICR 558, CA, and Marley (UK) Ltd v Anderson [1996] ICR 728, CA). A fact will be ‘crucial’ or ‘fundamental’ if it is such that, when the claimant learns of it, his or her state of mind genuinely and reasonably changes from one where he or she does not believe that he or she has grounds for the claim to one where he or she believes that the claim is ‘viable’. Ignorance of a fact will not render it ‘not reasonably practicable’ to present a claim unless, first, the ignorance is reasonable and, secondly, the change of belief in light of that new knowledge is also reasonable.[13]The power to strike out a party's case as having no reasonable prospect of success is a higher threshold than that of a “real prospect”. This is a discretionary power and is exercised with caution. It will not usually be appropriate to strike out at a preliminary hearing in factually contentious cases. The drastic nature of the power justifies caution in its exercise; the tribunal has a discretion to strike out, and is not required automatically to do so merely because it determines that the claim (or defence) has no reasonable prospects of success. It must also consider whether it is just to proceed to strike out in all the circumstances, rather than allowing the case to proceed to a full hearing or taking other, less draconian steps to elucidate the nature of the claims or making a deposit order (Parkin v Leeds City Council UKEAT/0178/19/RN). Where a litigant in person has been unable properly to plead their case, it may nonetheless be possible to discern matters that might in principle constitute proper claims.
Analysis
[14]I have carefully considered the bundle of 162 pages, which included:a. The ET1 formb. Email exchanges between the claimant and various members of staff of the respondentc. Contract of employment as a Night Workerd. Payslips from 31 January 2013 to 31 January 2015e. Tables of pay grades and increases from 2013 onwardsf. Grievance documents about the claimant’s complaint and internal appeal[15]I have not referred to each piece of evidence or submission here, but rather focused on those aspects that are in my judgment relevant to the decision I have to make.[16]I explored with the claimant what he said he was claiming for and why he had claimed for it when he did. I bore in mind his role as a litigant in person and have given anxious consideration to whether his claim or witness statement identify a claim that might in principle be properly pursued.[17]The claimant has been employed by the respondent since 1989 in one form or another, there having been TUPEs in 1998 and in 2014. He has 36 years of continuous service.[18]In October 2014 the claimant participated in strike action for 19.5 hours. He agrees that he did so and also agrees that the respondent is entitled to deduct pay for those hours.[19]In his 30 November 2014 payslip, the sum of £268.57 was deducted. It is clear from the surrounding payslips that the sum is lower but no explanation appeared on the payslip. No query or complaint was made by the claimant at the time. He told me that he did not notice it.[20]In the 31 December 2014 payslip there was an extra payment to the claimant of £100 which no one has been able to explain but which might reflect overtime or an outstanding bonus.[21]In May 2024 the claimant had difficulty logging onto the online system to view his payslips. While this was being resolved, he noticed that his job title was incorrectly recorded as “Night Support Worker”. He is a “Night Worker” which is a more senior role. It was at this point that the claimant noticed the deduction in November 2014.[22]The respondent spent some time trying to work out why the job title was wrong. The claimant says Ms Whitefield told him at one point that he was recorded as a Night Support Worker since 2015 because his pay was reduced. Ms Whitefield disputes saying this. I do not need to resolve this dispute because, as I find below, there was only a single one-off deduction regardless of what the claimant or Ms Whitefield may have understood at the time.[23]I have read a lengthy quantity of correspondence on the November 2014 deduction in which, I agree, the respondent appears to be at a loss to explain the deduction. The correspondence also includes discussion surrounding other pay-related matters which are not the subject of the claim before me.[24]After the claimant raised a grievance on 31 January 2025, a meeting was held at which the respondent’s Head of Resourcing, Ms Middleton, explained that she would conduct an investigation into the deduction of £268.57. Ms Middleton’s notes of her enquiries reveal that she had located records showing the claimant had taken strike action in October 2014. Further calculations showed that the hours on strike (19.5) represented £268.57 based on the claimant’s salary at the time. Ms Middleton found that this was consistent with the pay deducted from a comparator who was also on strike around that time. The product of these investigations was shared by letter to the claimant on 25 March 2025.[25]The claimant replied to Ms Middleton by letter dated 26 March 2025 in which he said, “Yes, indeed I was on strike October 2014 for 7 days”. He further gave consent for the respondent to deduct £92/month from his wages starting 25 April and ending 25 June, i.e. £92x3 = £276. That was not necessary because the respondent had already deducted the appropriate sum in November 2014.[26]On 31 March 2025 the claimant then appealed against Ms Middleton’s decision on his grievance. By this stage it seems that the claimant had formed the belief that because £268.57 had been deducted in November 2014, the respondent had been deducting the same amount monthly from his salary or alternatively failing each month to pay it back (it was somewhat unclear). From this he formed the view that he was owed £268.57 multiplied by the number of months that had elapsed (127 months to July 2025), bringing the total to £34,108.39.[27]The internal appeal was dismissed on 28 May 2025. The claimant then filed his claim with the Tribunal.[28]I need to set out my understanding here of the claimant’s contract and pay scale.[29]His most recent contract, which began on 2 March 2009, records his role as Night Worker with a base salary and a London weighting uplift. His salary point was NJC 21 and by April 2019 it was NJC 25. In April 2019 the NJC scales changed and staff were moved at the same salary across to the new scale, which was NJC 17. The claimant was at the top of his salary grade and so no further increments were applied. At a superficial glance the move from NJC 25 to NJC 17 seems like a pay reduction; it is not.[30]Another change that has caused confusion is that prior to April 2016, the overall figure that appears in the pay grades did not distinguish basic pay and the London weighting. The same figure appears under the column “basic pay” and “combined pay”. From 1 April 2016 the pay structure involved separating out basic pay and then adding a London weighting next to it. This led to the basic pay column showing an abrupt drop in salary between 2015 and 2016, the combined pay figure column representing the correct salary including the London weighting. If one looks only at the basic pay column, it appears that there is a drop in basic pay, when in fact that column used to be artificially inflated.[31]The claimant has formed the strong belief from all of the above that he has been consistently underpaid since 2014 or early 2015. He was clearly aggrieved about the deduction in November 2014 and the failure in 2024 to be able to explain it. He was further distressed by the error in his job title which imputed a demotion. I acknowledge and can readily see his anxiety and stress as a result of this situation. However, the claim before me is for unauthorised deduction of wages and I now turn to whether it was brought in time.[32]Applying the legal test, I find that it was reasonably practicable for this claim to have been brought within the time limit of 1 March 2015. From his correspondence with the respondent I can see that the claimant has for many years been active in managing his employment conditions, pay, and querying discrepancies or matters that are unclear to him. He has had support from others in doing so. In my judgment he was in a position to have noticed the deduction within the time limit and to have acted upon it.[33]I further find that there has not been a series of deductions dating back to November 2014. That is not borne out by the payslips I have been given. The claimant’s calculation appears to be based on an assumption that the same sum has been deducted or not repaid monthly since November 2014 onwards. I can see no justification for that assumption. In any event section 23(4A) of the ERA prevents consideration of deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint.[34]If I am wrong in those conclusions, I find that the claimant could have made a claim once he became aware (as he says) that there was a deduction, in May 2024. There were numerous points during his correspondence with the respondent where the claimant clearly thought no satisfactory explanation or response would be forthcoming. Waiting to resolve internal processes is not in my judgment a reason to delay until 24 July 2025 to file this particular claim.[35]For completeness, I go on to consider the respondent’s alternative argument which is that the claim, even if in time, has no reasonable prospect of success. I am bound to agree with that argument. The claimant agrees he was on strike for a period of time equivalent to the sum deducted. I find that the sum represents a deduction for the hours undertaking strike action. Pursuant to section 14(5) of the ERA, that is an excepted, statutory, deduction and the tribunal has no jurisdiction to consider the matter further (Sunderland Polytechnic v Evans [1993] IRLR 196). The claim therefore has no reasonable prospect of success. Approved by: