Miss E L Ferguson v Nexus Workforce Ltd and 1 other — 2021

At a preliminary hearing before Employment Judge Gordon Walker, Miss E L Ferguson's claims against Nexus Workforce Ltd and Clipper Logistics plc were dismissed for lack of jurisdiction. The tribunal found that she was employed by Nexus under a contract of employment from 1 December 2018 to 25 April 2020, that there was no express or implied contract with Clipper, and that the arrangement with Clipper was a genuine tripartite agency arrangement. The claimant had earned £3,502.91 in the period to 5 April 2020, and Nexus later paid £328.34 holiday pay after termination, but no tribunal award was made.

The unfair dismissal claim failed because the claimant had less than two years' service with Nexus and, in any event, the tribunal held that the unfair dismissal complaint was presented out of time. The claims for unauthorised deduction from wages, holiday pay on termination under the Working Time Regulations, and breach of contract for notice pay were also found to be out of time. The tribunal found that it had been reasonably practicable for the claimant to present her claims earlier, including after her 29 May 2020 and 29 August 2020 emails, and that the complaints were not brought within a further reasonable period.

The claimant also sought to pursue race discrimination against Clipper, but the tribunal held that no race discrimination claim had been pleaded in the ET1 and refused permission to amend. It accepted that the proposed amendment would have introduced a new cause of action, would have been out of time, and would have caused prejudice to Clipper; the judge said that if the claim had been pleaded it would have been struck out for having no reasonable prospect of success.