Mr H Jani v Elis UK — 2022

The claimant, who is of Indian origin and remained employed by the respondent as a laundry operative at St George's Hospital, brought claims alleging race discrimination, unlawful deductions from wages and holiday pay issues. The race discrimination claim relied on two matters: the claimant not receiving a 10-year Long Service Certificate in July 2018 when a Polish co-worker had received one in June 2018, and delayed payment of sick pay for sickness absence between 22 and 26 October 2018. The tribunal found those two alleged acts were discrete, were not a continuing series, and were respectively about 12 months and 10 months outside the primary limitation cut-off date of 30 August 2019. It refused to extend time on just and equitable grounds and dismissed the race discrimination claim.

The alleged unlawful deduction relating to 2013-2014 back pay concerned a payment made in 2014. The tribunal accepted that the claimant may not reasonably have had sufficient crucial facts in 2014, but found that by August 2018 at the latest he was aware of the alleged incorrect calculation and could reasonably practicably have presented a claim by 30 September 2018. Because the claim was not presented until 30 December 2019, it was dismissed as out of time.

The alleged pay rate differential claim was treated as an unlawful deduction claim based on the claimant being paid less than colleague SM. The tribunal found any series of alleged deductions ended when their pay rates became the same again on 1 May 2019, so the claim presented on 30 December 2019 was substantially out of time. It also stated that, if it were wrong on limitation, the claim would have been struck out under Rule 37 because the claimant had no contractual right shown to be paid the same as others in the same band and because the evidence showed pay points and a possible allowance consolidation explanation for the difference.

The holiday pay issue was ongoing and the respondent did not argue that the whole claim was out of time. However, the tribunal held that section 23(4A) Employment Rights Act 1996 imposed an absolute jurisdictional bar on claims for incorrectly calculated holiday pay before 30 December 2017. The holiday pay claim for the period before that date was struck out, while the claimant's remaining live claim about holiday pay entitlement and calculation was left for a final hearing. No compensation was awarded in this judgment.