Mr K Sutton v First Manchester Limited — 2022

Mr K Sutton, a PCV driver employed by First Manchester Limited since 27 June 2016, brought unlawful deduction claims about CJRS/furlough pay and holiday pay. The tribunal found that he was furloughed from 30 March 2020 to 29 August 2020 and paid one week in arrears. It held that the furlough pay claim was out of time because the last payment relied on was 3 September 2020, ACAS early conciliation began on 15 December 2020, and it was reasonably practicable to present the claim within the three-month limit under s.23 ERA 1996. The furlough claim was dismissed, and the tribunal did not go on to consider the respondent's strike-out argument on the merits.

The holiday pay complaint was treated differently. The claimant's original ET1 referred to incorrect holiday pay over a five-year period, but after further particulars he sought to include holiday pay allegations for October and December 2020. Applying Selkent Bus Company v Moore, the tribunal allowed the amendment because he had been seeking records before pleading those months and the respondent was not materially prejudiced. The tribunal rejected the respondent's argument based on Prakash v Wolverhampton City Council that the point could not be added.

On the existing holiday pay allegations, the tribunal found the last underpayment it could identify was in February 2020, so there was more than a three-month gap before the October 2020 allegations. Applying Bear Scotland v Fulton, it struck out the holiday pay claims prior to October 2020. It also noted the two-year limit under the Deduction from Wages (Limitation) Regulations 2014 and the respondent's holiday pay agreement with Unite, including a two-year backpay arrangement. The tribunal directed the claimant to say whether any amended holiday pay sums remained outstanding, but it did not finally determine the merits of the October and December 2020 allegations.