Ms S Banda v Government Legal Department — 2024

Ms S Banda brought a money claim arising from an asserted interim payment under the respondent’s pay and reward modernisation programme. The tribunal recorded that she had over three years’ service, was a solicitor with 15 years' post-qualification experience, and had been on a temporary promotion from Grade 7 to Grade 6 from February 2023. The respondent’s position, reflected in communications and an FAQ document, was that eligibility for the interim payment depended on being in post in January 2024, and the claimant was told in August 2023 that she would not be entitled to the payment.

The tribunal found that the claimant left the respondent on 3 October 2023 and joined another government department on 4 October 2023. Her October payslip, dated 31 October 2023, did not include the interim payment, which she first saw on 2 November 2023. She queried the omission and was told on 6 November 2023 that she was not entitled to the payment. She received a further detailed explanation on 25 January 2024 that she was not entitled because she had not been in employment on 30 October or 1 January 2024. She notified ACAS on 1 February 2024 and presented her ET1 on 2 February 2024.

Applying section 23 ERA 1996, the tribunal held that the last date for presentation, allowing for ACAS early conciliation, was 30 January 2024. Because the claimant did not go to ACAS until 1 February 2024, the claim was out of time. The tribunal further held that the claimant had not shown it was not reasonably practicable to present the claim within three months. It considered that she had been aware for many months of the respondent’s position, that the documents made clear the eligibility requirement, and that even if she was not convinced in August 2023, she knew by 2 November 2023 that the payment had not been made and later received a detailed explanation on 25 January 2024.

The tribunal referred to Cygnet Behavioural Health Ltd v Britton [2022] EAT 108 and noted that the section 23 test is stricter than the test applied in discrimination claims. It concluded that it was feasible for the claim to have been presented in time and that this was not an exceptional case where the time limit could be extended. The tribunal therefore held that it had no jurisdiction to hear the claim and dismissed it.