Mr S Serla v S&T (UK) Limited (in administration) — 2019

The Claimant withdrew the complaints for unpaid pension contributions and unpaid expenses after those matters had been resolved by the Respondent. The judgment records those complaints as dismissed following withdrawal. The Respondent’s counterclaims were also withdrawn, but they are not part of the extracted claimant claims.

The Tribunal held that the Claimant’s holiday pay claim was in time. It accepted that the relevant payment date was 28 February 2019, after termination on 20 February 2019, so the Early Conciliation period was started within the applicable three-month limit. The claim covered both statutory holiday pay under the Working Time Regulations 1998 and contractual holiday pay under the Employment Rights Act 1996. The Tribunal did not decide whether the alleged verbal variation allowing carry-over of additional leave was made; that issue was left for the full hearing.

The unpaid commission claim was brought as a wages deduction claim under s.23 ERA 1996 and in the alternative as a contract claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. On the Claimant’s own case, the commission became due when contracts were signed in late 2016, so both routes were outside the primary three-month time limit by the time Early Conciliation was started in 2019. The Tribunal found that the Claimant had chosen to wait for payment, which was understandable, but that it was still reasonably practicable to bring an earlier claim. It applied the principle in Dedman and held that the Claimant was fixed with the error in his adviser’s time-limit advice. The Tribunal therefore dismissed both the statutory and contractual commission claims for want of jurisdiction and noted that, in any event, the contractual claim exceeded the £25,000 cap and would be more suitably pursued in the County Court if the Claimant wished to do so.