Mr P Jessup v Huseyin Kulhas T/a Café Edinburgh: 8001897/2025
JUDGMENT
The judgment of the Employment Tribunal is that the Tribunal does not have jurisdiction under regulation 30 of the Working Time Regulations 1998 to hear the complaint.REASONS
[1]On 8 September 2025, the case was listed for a final hearing to determine liability and remedy, with three hours allocated.[2]On 3 December 2025, the respondent advised that, given the number of witnesses, additional time might be required for the hearing, to which the claimant objected. An Employment Judge ordered that this issue be discussed at the start of the hearing.[3]On 5 December 2025, the respondent made an application under rule 38 of the Employment Tribunal Rules 2024 for the claim to be struck out on the grounds that it has no reasonable prospect of success. The claimant seeks holiday pay compensation in relation to dates between 28 June 2024 and 28 December 2024. The early conciliation notification was dated 25 May 2025. The respondent asserted that the claim was not presented within three months less one day of the alleged last incorrect holiday payment and should therefore be struck out as out of time. The application was copied to the claimant.[4]From the case file, I noted that the application had been referred to an Employment Judge, who directed that it be considered at the start of the hearing. That direction had not been communicated to the parties. I clarified that the claimant had received a copy of the application and was in a position to respond orally. Ms Hodges confirmed that the respondent was maintaining the application.[5]Before considering the application, I explained to the parties that the question of whether a claim has been presented within the statutory time limits is a jurisdictional issue. I therefore questioned whether it was appropriate to proceed under rule 38. Upon reflection, Ms Hodges agreed that it would be more appropriate to determine whether the Tribunal has jurisdiction to consider the claim. I explained to the claimant that, as the preliminary issue concerned jurisdiction, it was appropriate for me to deal with it. However, before doing so, I wished to clarify the legal basis of the claim.[6]The claim form states that the claim is for holiday pay for the holiday year 2024. The statement of claim refers to incorrect calculation and payment of statutory holiday entitlement accrued from 25 May 2024 to 31 December 2024. The claimant provided additional information stating that the respondent used the wrong method and miscalculated his holiday entitlement for the 2024 holiday year. The respondent understood this to be a claim for payment in respect of periods of leave under regulations 16/16A of the Working Time Regulations 1998.[7]I explained to the claimant that there are other possible legal bases for bringing a claim for holiday pay. If, however, he wished to pursue a claim for unlawful deduction from wages or breach of contract (his employment terminated on 3 August 2025), he would need to apply to amend his claim.[8]In relation to time limits all these types of claim require consideration of the “reasonably practicable” test: whether it was reasonably practicable for the claim to have been presented within the prescribed time limit and, if not, whether it was presented within such other period as was reasonably practicable. The date on which the three-month limitation period begins may vary depending on the legal basis of the claim.[9]I allowed a short adjournment for the claimant to consider his position. When we reconvened, the claimant confirmed that his claim was brought under the Working Time Regulations 1998 and made no application to amend.[10]In those circumstances, I proposed that notwithstanding that the matter had been listed as a final hearing, I would use the remaining time available to consider the time-bar issue. The parties agreed.[11]The claimant gave evidence, and I made the following findings on the issue to be determined. Finding in fact[12]The respondent employed the claimant as barista between 25 May 2024 and 3 August 2025 when he resigned.[13]On 28 May 2024, the respondent issued the claimant with a statement of written terms and conditions. The claimant was contracted to work a minimum of 25 hours per week. He worked irregular hours as schedules were flexible and were managed weekly.[14]The holiday year ran from January to December. The claimant was contracted to receive paid holiday entitlement of 5.6 working weeks (subject to a maximum of 28 days) inclusive of public and bank holidays.[15]Holiday pay was included in monthly payslips issued on the 28th day of each month. The last payment relating to annual leave for the holiday year 2024 was paid on 28 December 2024.[16]Having undertaken his own research using the government holiday pay calculator on the internet, the claimant considered that the respondent had calculated his holiday pay for the holiday year 2024 using the wrong method and he was unclear about the rate used.[17]In January 2025, the claimant raised the issue with his colleagues and line manager. The claimant also contacted ACAS for advice about how to resolve matters amicably. He was aware of the right to submit claims to the Employment Tribunal and that there were time limits for doing so.[18]The respondent paid the claimant annual leave for January and February 2025 using the same methodology as before.[19]On or about 5 March 2025, the claimant’s line manager sent a message to the claimant and his colleagues concerning holiday pay and the formula used for its calculation. She stated that, with effect from 1 January 2025, holiday pay would be calculated at 12.07% of hours worked. She further indicated that compensation for January and February 2025 would be included in that month’s pay. The message made no reference to any payment relating to the 2024 holiday year.[20]The claimant received the appropriate compensation for January and February holiday pay when his salary was paid on 28 March 2025. The claimant advised the line manager that the proposed back payment did not account for unpaid holiday pay from May to December 2024. The manager said that she would raise this with the respondent.[21]On 25 May 2025, the claimant raised a grievance about how the respondent calculated pay for 2024 year and simultaneously commenced early conciliation.[22]The respondent replied to the claimant setting out hours worked over 52 weeks multiplied by the contractual entitlement. The respondent accepted that there was an underpayment of holiday pay of 21 hours which was paid to the claimant on 28 June 2025.[23]The early conciliation certificate was issued on 6 July 2025. The claimant resigned on 3 August 2025. The claim form was sent to the Tribunal on 5 August 2025. Deliberations[24]The claimant brings a complaint under regulation 30 of the Working Time Regulations 1998, alleging that the respondent failed to pay part of the holiday pay due under regulation 16/16A.[25]Under regulation 30B, a complaint must normally be presented within three months of the date on which the payment should have been made. Where the complaint is not presented within that period, the Tribunal may allow a further period if satisfied that it was not reasonably practicable for the complaint to be presented in time.[26]If the statutory dispute resolution procedures apply, the normal time limit is extended by the period specified in regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, and that extended period becomes the new deadline for submitting the complaint.[27]I began by considering whether the complaint related to a single deduction or a series of deductions. On the evidence, I was satisfied that the claimant’s complaint concerned the respondent’s failure to pay all holiday pay due between 25 May 2024 and 31 December 2024. This amounted to a series of deductions.[28]I then considered the date of the last deduction. The last payment which the claimant says was due was made on 28 December 2024.[29]I asked whether the relevant series of deductions was within three months before the claim was presented. The claim should have been presented by 27 March 2025. Early conciliation began on 25 May 2025, after the expiry of the three-month period. The claim was presented on 5 August 2025. Accordingly, I concluded that the claim was not presented in time.[30]I then considered whether it was reasonably practicable for the claimant to have presented the complaint within the time limit.[31]In assessing what was reasonably practicable, the question is not simply what was possible, but whether, on the facts, it was reasonable to expect that which was possible to have been done.[32]It is not merely an issue of physical impracticability but whether it was reasonably feasible for the employee to present the claim in time. Where the employee missed the time limit because of ignorance of the time limit, or a mistake about when it expired, or ignorance of crucial facts, the question is whether that ignorance was reasonable. If it was not, then it may have been reasonably practicable to bring the claim in time.[33]Before 27 March 2025, the claimant was familiar with Employment Tribunals and the types of claims that could be brought. He contacted ACAS in January 2025 to discuss his situation. From that experience, the claimant was put on enquiry as to the time limits that apply. He was also able to make online enquiries, as shown by the websites he accessed to calculate holiday pay.[34]There was no evidence that the claimant was unable to present his claim on time. His position was that there were further deductions in January and February 2025 and he wanted to resolve the dispute amicably. By 5 March 2025, he knew that back payment was only being made for the 2025 holiday year and would be paid on 28 March 2025. He knew the last payment about which he complained was made on 28 December 2024. He knew about time limits and was able to make enquiries online and with ACAS. Any mistake or ignorance about time limits was not reasonable.[35]While I understand that the claimant remained employed and did not want to raise proceedings unless necessary, he raised a formal grievance on 28 May 2025 and simultaneously notified ACAS. At that point, he was again put on notice about time limits. He did not bring the claim when advised of the grievance outcome on 10 June 2025, nor when his pay on 28 June 2025 did not include the amount he claimed. He received the ACAS certificate on 6 July 2025 but did not raise proceedings until 5 August 2025.[36]Once the claimant decided to raise proceedings, he understood what was required. He had obtained an early conciliation certificate and submitted his claim form.[37]I was satisfied that it was reasonably practicable for the claimant to have presented the claim within the time limit. He had all the information needed by 5 March 2025. He had tried to resolve the matter informally and knew by then that no back payment for the 2024 holiday year was being made. He was aware that there were time limits. Raising proceedings would not have precluded continuing internal discussions. While I appreciate that he considered it difficult to do so while employed, that is the type of claim he has pursued.[38]Having reached this decision, I did not need to consider whether the claim was submitted within such further period as was reasonable. Had I required to do so, I would have found no reason why the claimant did not submit the claim form on 7 July 2025, after exhausting the grievance process, knowing that no further payments were being made for 2024 holidays and receiving the ACAS certificate.[39]I concluded that the Tribunal does not have jurisdiction to hear the complaint.