Mr S J Engeau Kameni v NSL Services Group Ltd — 2020

This was a remote, undefended hearing before Employment Judge Hopton on 7 December 2020. The respondent did not attend and had not presented an ET3. The claimant also did not attend, although the tribunal had warned him by letter dated 22 October 2020 that the claim might be struck out because it appeared to have been brought outside the usual three-month time limit for unlawful deductions of wages and/or breach of contract, with no explanation given as to why it had not been reasonably practicable to present it earlier.

The tribunal noted that the claimant had sent an email at 2.14pm on 7 December 2020, but it did not explain why he had not joined the hearing or why the claim should not be struck out. The judge proceeded in the claimant's absence after keeping the video call open until 2.30pm. The email was read as showing that he had received the hearing invitation and the earlier correspondence, but it did not provide any material answer to the timeliness point.

On the papers, the ET1 had been sent on 15 July 2020 and the claimant said his employment ended on 1 October 2013. He said he had not been paid his salary in September 2013, and the judge concluded that the September 2013 payment was the claimant's only claim. The tribunal applied the three-month time limit under section 23 of the Employment Rights Act 1996 for unlawful deductions claims and, if the matter was treated as a breach of contract claim, article 7(a) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.

The claimant presented no evidence that it had not been reasonably practicable to bring the claim in time. Referring to Sterling v United Learning Trust EAT 0439/14, the tribunal noted that where a claimant does not advance such an argument the tribunal is entitled to conclude the claim is out of time. The claim was therefore struck out under rule 37(1)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 on the basis that it had no reasonable prospects of success because it had been brought out of time.