Mr G Dellal v ABM Aviation UK Limited — 2021

The claimant, Mr G Dellal, had been employed by ABM Aviation UK Limited since 2007. He presented claims after early conciliation, including a complaint under the Zero Hours Regulations based on an asserted exclusivity clause and a complaint of unlawful deductions from pay concerning furlough pay said to be underpaid on 10 May 2020 by £229.86.

On the Zero Hours Regulations complaint, Regional Employment Judge Franey applied the strike-out test under rule 37(1)(a) and the approach to weak discrimination-like claims discussed in Mechkarov v Citibank NA. Taking the claimant's case at its highest and assuming an exclusivity clause existed, the tribunal held that the protection in regulation 2 was not engaged because there had been no actual breach: the claimant had not done work or performed services for another employer. The alternative argument that the clause prevented him from even seeking work was also rejected, because a clause of that kind would fall outside section 27A(3) of the Employment Rights Act 1996. That complaint was therefore struck out as having no reasonable prospect of success.

On the unlawful deduction claim, the tribunal accepted that the claimant believed the three-month time limit ran from 10 June 2020, when he thought the employer could next correct the pay, but held that section 23(2) of the Employment Rights Act 1996 runs time from the date of the deduction itself, here 10 May 2020. Applying section 23(4) and the authorities cited, including Palmer, Bodha, Trevelyans and Marks and Spencer v Williams-Ryan, the tribunal found it was reasonably practicable for the claimant to have discovered the correct position by internet research or by asking his union. Because the first condition for extending time was not met, the unlawful deductions complaint was dismissed as out of time.

The tribunal recorded that, because the deductions claim failed, it had no power to make any award for failure to provide a written statement of the main terms of employment. No monetary remedy was awarded on either complaint, and the proceedings were brought to an end.