Case 3321259/2021 · Employment Tribunal
Ms. McCarthy, Consultant (by CVP) For the v Respondent — 2023
- Case reference
- 3321259/2021
- Decision date
- 13 January 2023
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Coll Date
- Venue
- Watford
Parties
1 namedClaimant
Ms. McCarthy, Consultant (by CVP) For the
Respondent
- —
Key findings
Tribunal's reasoningMs Petrina Newell had been on sick leave since 2018 and the school carried out a phased redundancy consultation in January and February 2021. A letter dated 26 January 2021 set out a redundancy payment figure of £8,451 and an enhanced voluntary redundancy figure of £12,676.52, with a last day of service of 31 March 2021. The claimant applied for voluntary redundancy on 5 February 2021 and the tribunal found that the effective date of termination was 31 March 2021 under s.97(1) ERA 1996.
On that basis, the tribunal held that the unfair dismissal claim time limit expired on 30 June 2021, the redundancy payment claim on 5 July 2021, and the notice pay claim on 26 July 2021. Early conciliation with ACAS started on 30 July 2021, after those deadlines, and the ET1 was not presented until 13 October 2021. The tribunal therefore dismissed the unfair dismissal, unlawful deduction, breach of contract, holiday pay and redundancy payment claims as out of time. It also found that the arrears of pay and holiday pay complaints were not clearly particularised, so it could not identify the last alleged deduction date, but said they were in any event very significantly out of time.
The tribunal rejected the case that it was not reasonably practicable to present the claims in time. It found that the claimant had spoken to ACAS in April 2021 and then relied on advice from Ms. McCarthy about how to calculate the time limit; the tribunal treated any error by that adviser as attributable to the claimant. It also held that, even if the alternative further reasonable period test applied, the claims were not presented within a reasonable time because the claimant did not need to wait for all documents before issuing the ET1 and there was no adequate reason for waiting until after the ACAS certificate had been issued.
The tribunal also held that no disability discrimination claim was pleaded in the ET1. It refused the amendment application under Rule 29, applying the Selkent and Vaughan balancing exercise, because the proposed EqA 2010 allegations were new, unclear, out of time and not supported by any sufficient explanation for the delay. As a result, it did not need to consider any just and equitable extension for disability discrimination, and all of the ET1 claims were dismissed for lack of jurisdiction.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Claim for dismissal by way of redundancy; the tribunal held the effective date of termination was 31 March 2021 and the claim was presented out of time. | Dismissed | — | — |
| Breach of contract | The judgment dismissed the ET1's breach of contract claim for lack of jurisdiction; it did not set out a separate factual basis beyond the pay and redundancy issues discussed in the reasons. | Dismissed | — | — |
| Unlawful deduction from wages | Notice pay claim for 12 weeks' notice; treated as an unlawful deduction claim and found out of time. | Dismissed | — | — |
| Holiday pay | Holiday pay claim; the tribunal said the particulars remained unclear and found the claim very significantly out of time. | Dismissed | — | — |
| Unlawful deduction from wages | Arrears of pay claim alleging underpayments during term-time and holiday periods; the tribunal found the dates and particulars were unclear and the claim was out of time. | Dismissed | — | — |
| Redundancy | Claim that the redundancy payment had been miscalculated by reference to age and length of service; dismissed as out of time. | Dismissed | — |
Legal tests applied
7 references- s.97(1) ERA 1996
- s.111(2) ERA 1996 not reasonably practicable test
- within such further period as the Tribunal considers reasonable
- Selkent v Moore balance of injustice and hardship
- Vaughan v Modality Partnership balance of injustice and hardship
- Dedman principle
- University Hospitals Bristol NHS Foundation Trust v Williams reasonable period test
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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