In person For the v Mr Davies (solicitor) — 2020

Mrs C Gillie brought a claim against Blue Angel Promotions Ltd for unauthorised deduction from wages, said to arise from failure to pay the National Minimum Wage. The case was heard by Skype before Employment Judge Davies on 5 June 2020. The only issue finally determined was limitation: whether it had been reasonably practicable for the Claimant to present the claim within three months of the last wage payment, and if not whether the claim had then been brought within a reasonable period.

The tribunal found that the Claimant and Mr Matthews went into business together in 2015 to run the Lord Roberts pub, each investing £10,000 and agreeing to work the business on a 50:50 basis. The tribunal found that the Claimant was removed as a Director on 21 May 2015 in connection with difficulties opening a bank account, but accepted that she was not told this and did not realise it had happened. It also found that she was paid a weekly sum just under £200, without payslips at the time, and that the payslips later produced by the Respondent did not reflect the reality of the arrangement.

The tribunal accepted that the Claimant only discovered in December 2019, following an HMRC investigation, that she had been treated as an employee for tax purposes. However, it held that this did not make it not reasonably practicable to bring a National Minimum Wage claim earlier. The tribunal reasoned that company directorship was not determinative of entitlement to National Minimum Wage, and that the central question was employment status. It found that, assuming she was an employee, the Claimant should have taken steps over the four-year period to deal with her own tax affairs or understand the business arrangements, which would have revealed her status and the pay arrangements.

Applying s.23 Employment Rights Act 1996, the tribunal held it was reasonably practicable to present the claim by mid-October 2019. Because that finding meant the limitation period could not be extended, the claim was dismissed and no remedy was considered.