Mr Tadas Kucinskas v No appearance Mr Paul Hutton — 2021

The claims were brought by nine claimants over non-payment of furlough pay under the Coronavirus Job Retention Scheme after the café in Frederick Street, Edinburgh closed on 23 March 2020. The tribunal recorded that the claimants were employed by Coro Chocolate Limited, that no furlough payments were made, and that CCL later indicated that no further shifts would be offered. It also recorded that the first claimant started new full-time work on 19 June 2020 and that P45s issued around 26 June 2020 named CCL as employer.

The tribunal first considered limitation under section 23 of the Employment Rights Act 1996 and the reasonable practicability test, referring to Palmer v Southend on Sea Borough Council, Asda Stores Ltd v Kauser, Marks and Spencer plc v Williams-Ryan, Lowri Beck Services Ltd v Brophy, Wall's Meat Co Ltd v Khan, and Porter v Bandridge Ltd. It found that, on the latest date it accepted for the series of deductions, early conciliation should have started by 26 September 2020, but the accepted ACAS process against the respondent did not begin until 15 November 2020. The tribunal held that the claimants had not proved it was not reasonably practicable to start earlier.

The tribunal also found that the Employment Tribunal claim form, presented on 4 January 2021 after the ACAS certificate issued on 15 December 2020, was not lodged within a reasonable period. It noted that the first claimant had some awareness of the time limit, had tried to obtain advice, and had previously attempted early conciliation, but said that these matters did not satisfy the statutory test. On that basis, the tribunal held that it had no jurisdiction over the unlawful deduction claims and dismissed them.

Separately, the tribunal found that Mr Paul Hutton was not the employer. It held that the evidence showed CCL was the employing entity, relying on contracts, payslips, correspondence, and P45s naming CCL. The tribunal said the wrong respondent had been named and that, had it been necessary to decide the issue, it would not have allowed substitution of CCL under Rule 34 because there had been no formal and effective early conciliation in relation to CCL. No monetary remedy was awarded.