Mr K Moss v KJ Services Ltd — 2023

Mr Moss worked for KJ Services Ltd as a plant operator from October 2004 until his retirement on 4 February 2022. He complained that when he took holiday during employment he was paid only on basic pay and not on elements such as overtime and bonuses, and he brought a complaint for failure to pay holiday pay / unlawful deduction from wages. The tribunal identified the last relevant payment as 11 February 2022, so the ordinary three-month time limit for starting Acas early conciliation expired on 10 May 2022.

The claimant and his wife said they were initially told by Acas to send a grievance to the respondent and believed that doing so within three months was sufficient. The tribunal found, on the balance of probabilities, that Acas had likely mentioned the need to commence early conciliation within three months as well as the desirability of raising a grievance, but that the claimant and Mrs Moss confused those two processes. It found that their belief that lodging a grievance within three months meant there were no tribunal time limit issues was not reasonably held.

Applying the statutory time limit and extension provisions, the tribunal held that it was reasonably practicable for the claimant to have checked the position further before 10 May 2022, for example by contacting Acas again, obtaining advice, or researching the point. It held that early conciliation is not a difficult process and that the claimant had sufficient time to take those steps. The tribunal therefore refused to extend time and dismissed the complaint for lack of jurisdiction.

The tribunal also said that, even if it were wrong about reasonable practicability, the claim was not presented within a reasonable further period. It noted that the claimant did not chase matters or seek further advice between April and July 2022, and that once the time limit problem was appreciated the claim could have been started promptly rather than waiting until Acas early conciliation began on 30 November 2022 and the ET1 was lodged on 15 December 2022.