Mr A Auld v KW Contractors Ltd and Ms J Ironside: 8001605/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001605/2025Venue Glasgow in chambersHearing 27 February 2026
Between
Mr A AuldClaimantKW Contractors Ltd and Ms J IronsideRespondent
Before
Employment Judge D HoeyMs L Beedle (instructed by Solicitor) for claimantMr J Boyle (instructed by Solicitor) for respondentDate 11 March 2026
JUDGMENT
The claim was lodged late and in terms of sections 23 (4) and 111 (2) of the Employment Rights Act 1996 and regulation 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 it was reasonably practicable for the claimant to have lodged his claim in time. The claim is therefore dismissed.
REASONS
[1]This Hearing had been fixed as a preliminary hearing to determine two preliminary issues: the issue of time bar and whether or not the complaint raised against the second respondent can proceed, it being said there was no jurisdiction. The parties had requested the matter be determined by written submissions with this hearing fixed in chambers to determine the issues.[2]A preliminary hearing to determine the 2 issues arising in this case was fixed on 25 November 2025 for today’s date following exchange of date listing letters. The claimant’s agent sent in submissions in relation to these 2 points on 4 September 2025. Originally an in person hearing was to take place but both parties asked that the matter be determined on the papers as neither party wished to lead evidence.[3]On 18 February 2026 the claimant’s agent said that she understood the respondent was “simply making submissions rather than leading evidence” and as she had “a conflicted diary for 27th a.m. I would ask that the matter is dealt with on the papers”. The respondent concurred with that application.[4]The parties had already set out their position in correspondence but just before on the morning of the hearing the claimant’s agent had sent an email saying she had a migraine and would be unable to send her submissions and would do so the following week. Given today has been in the parties’ diaries for a number of weeks and the parties were advised to ensure any submissions were provided in advance it was not in accordance with the overriding objective to delay determination of the matter. The whole point of the parties seeking a hearing in chambers was to ensure waste was avoided and to avoid delay.[5]The claimant’s agent had already set out her position in correspondence arguing in terms of the legislation the claim was in time (which required application of the legal provisions) and that it was competent to find the second respondent liable for the claim (on the basis of a High Court case). The legal basis for the claimant’s case had already been made clear and the parties sought a determination of these points from the material before me without any evidence being adduced. The parties were advised the issue would be determined from the material submitted. No further submissions were provided by the claimant’s agent to me.
Facts
[6]The facts in relation to the issues to be determined are not in dispute.[7]The claimant’s employment ended on 22 January 2025.[8]ACAS early conciliation commenced on 21 April 2025 with the certificate being issued (and conciliation ending) on 15 May 2025. Conciliation lasted for 42 days.[9]The ET1 was lodged on 26 June 2025.[10]The claimant was represented by a solicitor of around 20 years standing who works for an employment law company. The ET1 was presented on the claimant’s behalf by the solicitor who was stated to the claimant’s agent.[11]The claim as pled narrates that the claimant was employed by the respondent (a building contractor) for over 20 years. He had been recruited by the sole director and shareholder who died. It was alleged his widow (the second respondent) became the sale shareholder and director.[12]It is asserted that the second respondent asked the claimant to try to run the business as “otherwise it would be the end of the company”. The claimant was appointed as a director on 3 December 2018 and ran the company from that date.[13]On 11 June 2024 the claimant's father died and the claimant was absent from work for a period of time. After a week or so the claimant had a discussion with the second respondent and he disclosed knowledge of personal matters relating to the second respondent’s late husband. The claimant asserts that following that discussion “the climate changed”. The claimant was challenged on matters relating to the business by a personal friend of the second respondent who had no involvement with the business who eventually purported to suspend the claimant “for no given reason”.[14]The claimant’s pleaded case is that the second respondent decided to remove him from the business because he had disclosed knowledge of the personal issues relating to the second respondent’s late husband. A disciplinary process followed which was said to be unfair which included an appeal which was chaired by an outsourced HR representative engaged by a company that had supported the respondent who is alleged to have said that the decision upon appeal was ultimately that of the second respondent.[15]The claimant claimed unfair dismissal, unlawful deductions from wages and breach of contract. Time limits[16]Time limits go to the jurisdiction of the Tribunal which means that a claim presented after the time limit has expired cannot be considered at all on its merits, unless the Tribunal can be persuaded to extend time under the limited discretionary powers to do so conferred by the relevant statute.[17]Section 111(2) of the Employment Rights Act 1996 states: “An Employment Tribunal shall not consider a complaint… unless it is presented to the Tribunal (a) before the end of three months beginning with the effective date of termination or (2) 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”.[18]This means that the effective date of termination (the dismissal) is the first day of the three-month period. The time limit therefore ends one day earlier in the third following month.[19]Section 111(2A) clarifies that the provisions of section 207B are to be taken into account when referencing the time limit above (extension of time to facilitate conciliation before institution of proceedings). Section 207B(2) provides that: "In this section- Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 1BA of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.[20]Section 207B(3) states that “ln working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted”.[21]Section 207B(4) says: “lf a time limit set by a relevant provision would (if not extended by this subsection) expires during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period."[22]Luton Borough Council v Haque [2018] UKEAT/0180/17 is authority for the proposition that in relation to Early Conciliation, sections 207B(3) and (4) of the Employment Rights Act 1996 are applied sequentially. The two types of time limit extension – those in sections 207B(3) and 207(4) — apply cumulatively, not in the alternative. This means that where the early conciliation process applies, the limitation date should always be extended first by section 207B(3), and then extended further under section 207B(4) where the date as extended by section 207B(3) or its equivalent is within one month of the date when the claimant receives (or is deemed to receive) the early conciliation certificate to present the claim.[23]This means the one month extension provided by section 207B(4) applies to the time limit as extended by section 207B(3). Section 207B(3) applies in every case because, as its wording makes clear, it establishes the method for working out when it is that a time limit set by a relevant provision expires. In contrast, section 207B(4) expressly applies only in the circumstances to which it refers. It ensures that a prospective claimant always has at least one month from the end of the early conciliation period in which to bring a claim.[24]In Luton the effective date of termination was 20 June. Day A was 22 July and Day B 22 August. The claim was presented on 18 October. The respondent argued the last date to present the claim was one month after Day B: 22 September (and so the claim was late). The correct interpretation was to firstly apply section 207B(3), which was to identify the number of days spent conciliating, which was 31 days. This is added to the ordinary limitation date (which was 3 months less a day from 20 June: 19 September) which was 20 October. Section 207B(4), which ensured a claimant had at least a month from the end of conciliation, operated if the limitation date fell within Day A and 1 month after Day B. Given 1 month after Day B would be 22 September, the claimant had at least a month since the revised limitation date was 20 October (by virtue of section 207B(3) and the claim was in time.[25]Luton confirmed that the corresponding provisions relating to the extension of time to facilitate early conciliation under the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (regulation 7) and section 23 of the Employment Rights Act should be applied in the same way.[26]Where a claim is presented outwith the primary limitation period, the Tribunal has a discretion to extend time, where it was not reasonably practicable for the claimant to have presented the claim within the 3 month period and the claim was presented within a further reasonable period.[27]The onus is upon a claimant to prove that is was not “reasonably practicable” for a claim to have presented within the specified time period: Saunders v Southend on Sea Borough Council [1984] IRLR 119. With the passage of time the existence of Employment Tribunals and the right to bring claims of unfair dismissal and discrimination have become well known. As such, prospective claimants will in most cases struggle to persuade an Employment Tribunal that they were unaware of the right to bring a claim, and those who aware of such rights will, therefore, be on notice of the need to take advice as to how and when such a claim may be made; see Trevelyans (Birmingham) Limited v Norton [1991] ICR 488 EAT: “From the cases, it is our view that the following general principles seem to emerge. The first, as time passes, so it is likely to he much more difficult for applicants to persuade a tribunal that they had no knowledge of their rights in front of industrial tribunals to bring proceedings for unfair dismissal […] Second, that where an applicant has knowledge of his rights to claim unfair dismissal […] then there is an obligation upon him to seek information or advice about the enforcement of those rights.”[28]The general rule derived from Dedman v British Building 1974 ICR 53 is that a claimant who puts his or her case into the hands of a solicitor cannot plead ignorance if the solicitor gets it wrong, is well established. It is not the case that a solicitor’s involvement will inevitably lead a tribunal to reject a late claim on the basis that it was reasonably practicable to present it within the applicable time limit. The Court of Appeal affirmed the Dedman principle in Marks and Spencer plc v Williams-Ryan 2005 ICR 1293 finding that where the employee has retained a solicitor to act for him or her and fails to meet the time limit because of the solicitor’s negligence, the solicitor’s fault will usually defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to the tribunal.[29]In Northamptonshire County Council v Entwhistle 2010 IRLR 740 Mr Justice Underhill, then President of the Employment Appeal Tribunal, summarised the judicial treatment of the principle. He emphasised that the question of reasonable practicability is one of fact for the tribunal that falls to be decided on the particular circumstances of the case and accepted that there could be exceptions to the Dedman principle, such as where the adviser’s failure to give the correct advice was itself reasonable. He reasoned that this could happen, for example, where the employee and solicitor had both been misled by the employer on some factual matter.[30]In BLISS v Fellows 2023 EAT 8 the claimant’s adviser had made fundamental errors in dealing with this claim but the Tribunal originally found that it was not reasonably practicable to have presented the claim in time. The Employment Appeal Tribunal found that while “a new solicitor might not be expected to know the finer points of employment law, any professional adviser should know those basic points” and that “The fact that this was the first time Miss Rolls had filed a claim in the Employment Tribunal is not a factor that could properly be held to render it reasonable for her to be unaware of the time limit or of how the claim form was to be submitted. The pandemic did not prevent her making herself aware of the time limit or the permitted methods of submission. The information is easily available on the internet.”[31]The Emplyment Appeal Tribunal found that there was only one possible outcome. The claim was not submitted within the primary time limit because of an unreasonable error on the part of a skilled legal adviser. It was reasonably practicable for the claim to have been submitted within the primary time limit and, accordingly, the claim must be dismissed. Submissions and decision Time bar Claimant’s submission[32]The claimant’s case was that the conciliation dates serve to stop the clock such that there is at least 1 months from date B. The termination date was 22 January 2025 and there is then 3 months less 1 day plus the dates of conciliation and the days left to run in ordinary limitation calculation following day A which interrupted the three months for the 6 week conciliation period.[33]The claimant’s agent argued in correspondence that the claimant had 3 months less a day plus the dates spent conciliating and then adding the days left from the original period. The claimant’s agent had not set out the specific calculation to show how this resulted in the claim was in time.[34]The claimant’s agent asked that “discretion be used to allow the claimant not to be disadvantaged in the circumstances”. The claimant’s agent noted she was “not attempting to formulate a reasonable practicability argument”. Respondent’s case[35]The respondent’s agent noted that the original limitation date would have been 21 April 2025 (three months minus one day from the effective date of termination). Day A was 3 April 2025. Day B was 15 May 2025. There are 41 days between the day after Day A and Day B. The original limitation period would have expired in the period between Day A and Day B (21 April being between 3 April and 15 May). Therefore, the extension is calculated by adding 41 days to 21 April, making the extended deadline 1 June. As this lands within the period of Day A (3 April) and one month after day B, section 207B(4) applies to extend the time limit by one month after Day B (15 June). The claim was late by 11 days. There was nothing to suggest it was not reasonably practicable to have lodged the claim in time.
Discussion
[36]The determination of this matter is a matter of statutory interpretation applying the law. The law pertaining to this issue is the same for each of the complaints, albeit arising under different provisions.[37]Day A (commencement of conciliation) was 3 April 2025. Day B (the issuing of the conciliation certificate) was 15 May 2025. There are 42 days between Day A and Day B (not counting Day B but counting Day A). The effective date of termination was 22 January 2025. The original limitation period is 21 April 2025 (3 months less a day from the effective date of termination). The claim was lodged on 26 June 2025.[38]Applying the law as set out above, given the early conciliation process applies, the limitation date must first be extended by section 207B(3) which means that 42 days (the time spent conciliating) are added to 21 April, namely 2 June 2025. Given the time limit would ordinarily have expired on 21 April which is between Day A and a month after Day B, section 207B(4) applies which means the time limit expires at least one month after Day B, namely 15 June. As the claim was presented on 26 June 2025, the claim was accordingly presented 11 days late.[39]There is no basis upon which it can be said the claim was presented within the time limits set out in the Employment Rights Act 1996 (with the same tests applying to the other complaints). The claimant’s agent’s submissions present no reasoned basis to suggest the statutory wording as set out in section 207B(4) does not apply - which provides the latest possible date for submission which is at the end of “one month after Day B”. Section 207B(4) provides at least one month after the end of conciliation. The later of the effect of section 207B(3) and section 207B(4) would apply.[40]The claimant’s agent argued in correspondence that Day A was 3 April which was 2 months 1 week and 5 days into the 3 months less one day. She argued the interrupted period (around 2.5 weeks) should be added at the end. Day B was 15 May. The claimant had at least 1 month after Day B which would be 15 June. She then said the 2.5 weeks should be added to the balance of time. Regrettably she does not set out how this results in the claim being in time.[41]The claimant’s agent said that if the claim was out of time, the next issue is “whether or not discretion should be applied”. But the claimant’s agent says no reasonable practicability argument is being relied upon. In other words it is not being suggested that it was not reasonably practicable to have presented the claim in time. On that basis, there is no discretion available to me. If it is accepted that it was reasonably practicable to have presented the claim in time, that is the end of the matter (notwithstanding any injustice thereby occasioned). It was reasonably practicable to have lodged the claim in time and the claim was presented late.[42]It is well known that time limits are extremely important and solicitors know the risk in not knowing time limits or giving the rules proper consideration. It is well known that the original time limit is 3 months less a day. It is also well known that the “stop the clock provisions” apply and that the time spent conciliating is not ordinarily counted in calculating the 3 month period and that a claimant has usually at least a month from the end of conciliation to present the claim. In this case nothing has been suggested to the contrary.[43]The respondent’s agent noted that if the claimant’s agent wished to rely upon her error, that did not mean it was not reasonably practicable for the claim to have been lodged in time .This is because Dedman 1973 IRLR 379 made it clear that if there was fault of a skilled adviser, it was usually still reasonably practicable for the claim to have been presented in time. There is no evidence before to support the assertion that it was not reasonably practicable to have lodged the claim in time. In Fellows the issue was whether the solicitor had made a reasonable error.[44]There is no evidence before me that the claimant’s agent made a “reasonable error”. The time limits were clear. There is no evidence that the belief the solicitor had, that the claim was presented in time, was reasonable. Section 207B(3) and section 207B(4) are clear. The claim was presented late and it was reasonably practicable to have presented it in time.[45]The reasoning in respect of time limits applies to each of the complaints in this claim, the law being the same. From the material before me it was reasonably practicable for the claim to have been presented in time. The claimant was legally represented and the law is clear as to the position regarding time limits. The claim is accordingly dismissed. Jurisdiction[46]Although it is not necessary to do so, I have considered the second issue before me today as to whether or not the claim would have been allowed to proceed as against the second respondent, a director. Claimant’s argument[47]The claimant’s agent refers to Antuzis–v- D J Houghton [2019] EWHC 843 which is said to put forward an argument that a director could not be personally liable on the basis of the rule established in Said –v- Butt [1920] 3 KB 497 that a servant does not become liable personally…at the suit of a person whose contract has been broken. However Mr Justice Lane accepted that principle but found that the directors had not acted bona fide and so did not escape personal liability given that they had acted in clear breach of their duties under the Companies Act.[48]The claimant’s agent argues the second respondent has not acted bona fide in relation to her fiduciary and general duties to act in the best interests of the Company (or its employees) as a director under the Companies Act 2006 in relation to her actions vis-à-vis the claimant where a clear disregard for the applicable law and potential claims.[49]The claimant’s agent argues “There would be substantial prejudice to the claimant if the Tribunal did not accept what is now trite law particularly where he believes that the respondent company dealings are unconventional at the very best – mostly at the instance of Mrs Ironside, she now being the only officer (Director & Secretary) of the first respondent. The Claimant believes that this argument is designed to evade the legal obligations of both respondents particularly in circumstances where she appears to be running the company down, has arranged for the removal of not just the Claimant but another director and office manager and seems to have friends of hers running the company or purporting to run the company (and who were involved in the termination of all of the foregoing individuals including the claimant) which is a mere cloak as they simply act as her agents she being the only individual controlling it.” Respondent’s argument[50]The respondent notes that the first respondent paid salary and was the claimant’s employer. The second respondent had no contractual relationship with the claimant. In relation to Antuzis it was submitted that a significant point was a finding that the directors had breached section 172 of the Companies Act 2006 in knowingly failing to pay overtime, holiday pay and the national minimum wage. The court found that neither director honestly believed that they were paying the minimum wage, required holiday or overtime or that they were entitled to withhold those payments. They induced the company to act in breach of statutory duties regarding national minimum wage and holiday payments.[51]The respondent’s agent submitted that the case is different to the current case as there is no basis to say the second respondent induced the first respondent to commit a breach of contract. While there may be an apparent concern that the second respondent is running the first respondent company down and that it is seeking to evade legal obligations, that is not a matter of relevance to Antuzis. lf the claimant genuinely had concerns in this regard, the appropriate step would have been to apply for diligence on the dependence (Anwar v Advocate General for Scotland [20191 CSIH 43). He hadn't done so. Discussion[52]The High Court in England held in Antuzis that, in certain circumstances, directors will be personally liable for a breach of contract as well as for negligent acts. The case was brought by three employees who alleged they were ill treated in their employment by an employer. They were employed to travel around farms and catch chickens. They claimed their employer failed to pay them correctly for all hours worked, pay the national minimum wage or pay holiday pay. They worked unreasonably long hours and frequently had their pay withheld for a variety of unlawful reasons or for no reason at all.[53]The court accepted the evidence of the employees. The question to be considered was whether the directors were personally liable for the numerous breaches of the employment contracts of employment by the employing company. The court found that the company was being operated by the directors, “at all material times in a deliberate and systematic manner and catchers were working massively more than the hours recorded on the pay slips” and concluded that the director and company secretary were jointly and severally liable for inducing a breach of contract. The court found that they knew exactly what they were doing when they operated their business on a model which relied upon exploiting its workers to obtain an economic advantage for themselves”. Mr Justice Lane was unimpressed with the directors’ version of events and concluded there was: “no iota of credible evidence that either director possessed an honest belief that what they were doing would not involve a breach of contractual obligations towards the employees”. In his view, they realised the way they operated the business would cause the company to breach contractual obligations towards its employees and that was enough to make them liable for losses stemming from the breaches such as wages and holiday pay owed.[54]Section 172 of the Companies Act imposes duties on directors to act in good faith so as to promote the success of the company and, in so doing, to have regard to matters such as “the likely consequences of any decision in the long term; the interests of the company’s employees; the impact of the company’s operations on the community; and the desirability of the company maintaining a reputation for high standards of business conduct”.[55]Section 174 imposes a duty on the director to exercise reasonable cares, skill and diligence.[56]Mr Justice Lane acknowledged that merely procuring a breach of contract which involves a breach of statutory duty would be insufficient to decide if a director is liable, because that would mean directors would regularly face personal liability in that many aspects of employment contracts have a statutory element. However, “as a general matter, the fact that the breach of contract has such a statutory element may point to there being a failure on the part of the director to comply with his or her duties to the company and, by extension, to the director’s liability to a third party for inducing the breach of contract. Whether such a breach has these effects will, however, depend on the circumstances of the particular case”.[57]No authority was provided showing that this case applied (or for that matter did not apply) to Scots law (although the claimant’s agent referred to an Employment Tribunal case, which is not binding upon me). The parties appeared to presume the authority applies in Scots law. Given this issue is not strictly necessary to determine the case before me I shall proceed upon that basis, but I do not consider that the issue is beyond doubt.[58]The circumstances where directors can be personally liable for their actions is very much the exception. In Antuzis the directors were clearly acting within the scope of their authority in terms of the company’s Articles of Association and that they acted in breach of sections.172 and 174. What they did was not in the best interests of the company or its employees. Mr Justice Lane held they were not acting in good faith vis-a-vis the company and the directors knew the claimant’s rights were being infringed. The unusual nature of the case was that the breaches actioned by the individuals were central to the company’s modus operandi and so the directors were found jointly and severally liable for inducing breaches of contract by the company.[59]As a general principle, a director will not be personally liable for inducing a breach of contract by their company if they act in good faith and within the scope of their authority. To determine whether a director’s actions are in good faith, the focus is on the director’s conduct and intention in relation to their duties towards the company. The respondent’s position is that the circumstances in the current case can be distinguished since in this case the argument is that the director was “running the company down” and “seeking to evade legal obligations”. While the respondent’s agent says there is no evidence before the Tribunal, the issue at this stage is whether taking the claimant’s pleadings at their highest, the position is competently being advanced. Is what the claimant is offering to prove sufficient to engage the authority relied upon whereby the second respondent could be liable?[60]Mr Justice Lane confirmed in Antuzis that the focus of the “bona fide” inquiry is on a director’s conduct and intention in relation to his duties towards the company, not towards the third party. Had it been necessary to do I would have found that the argument in the case before me is not such as to engage the principle in that case. The present case fundamentally differs from that in Antuzis where the directors were said to have taken decisions to deprive the claimants of their statutory rights. In the current case the argument is general that the director was “running the company down” and thereby evading legal obligations. “Running a company down” is a fundamentally different situation to that in Antuzis where decisions were taken to deprive individuals of their fundamental rights. While the claimant’s agent says evidence will be provided, there is no reasonable basis from the information presented at this stage to find that the second respondent should be sisted as a party to this case.[61]The claimant’s agent seems to be suggesting that the way the company was being run was to dismiss individuals as redundant whose position was not redundant. She argues it was being run down “with a view to either transferring assets, selling it or some other transaction”. The claim as pled, however, makes it clear that the claimant believes he was dismissed because he disclosed knowledge of personal affairs relating to the second respondent’s late husband. It is that act which the claimant suggests led to the “climate changing”. It was alleged the second respondent made the decision to dismiss and had ultimate control over the appeal.[62]In correspondence it was alleged the second respondent displayed a “clear disregard for the applicable law and potential claims by the claimant.” The argument relied upon is unclear as it is suggested the second respondent has friends running he company but that is a “mere cloak” when in truth the second respondent is the individual in control. Given the second respondent appeared to be the person in control, it is a matter for her how the company is run and how her decisions are implemented.[63]The issue here is whether the exception within the Antuzis case is engaged (assuming it applies in Scots law) such as to allow the claimant to pursue the second respondent for claims ordinarily only capable of being made against the company. The case being made is fundamentally different to the facts as found in Antuzis. In this case the claimant is unhappy at how the company was being run. His pleaded case is that he was dismissed for personal reasons. If established, that may well be an unfair dismissal. The facts as set out do not however support the argument that the second respondent can be found liable applying the reasoning in Antuzis. Evading responsibilities by dismissing employees unfairly is not per se the exception set out in that case that results in personal liability. The court was clear in Antuzis to set out the exceptional nature of the directors’ actions and the modus operandi of the company. That is fundamentally different to what the claimant is offering to prove in this case.[64]Had it been necessary to do so and assuming Antuzis applies in Scotland, I would decided that the case as against the second respondent was not competent and did not meet the exceptional situation outlined in Antuzis. The case as against the second respondent is dismissed.