IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 4100134/2023, Issued Following Open Preliminary Hearing Held at Edinburgh on the Cloud Based Video Platform on th March 2023, at am Employment Judge J G d’lnverno Miss B Makan v BXL Limited trading as Brass Monkey Grange — 2023

The claimant worked from around 21 March 2021 for the business trading as Number 1 The Grange. That business ceased trading at the end of May 2022, and she said she was owed wages for the week ending 30 May 2022 and holiday pay accrued before closure. She sought to pursue those sums against BXL Limited trading as Brass Monkey Grange on the basis that a TUPE transfer had occurred. The respondent said the previous company was unconnected, had gone into liquidation on 6 June 2022, and that it entered a new lease on 29 July 2022 for a different public house business.

The tribunal applied the statutory time-limit provisions in section 23(4) of the Employment Rights Act 1996 and regulation 30(2)(b) of the Working Time Regulations 1998, with reference to Palmer and Saunders v Southend on Sea Borough Council. It found that the claimant knew by 4 August 2022 at the latest that a three-month time limit applied, and by 17 August 2022 at the latest that she intended to pursue the respondent, who was denying liability. She did not make formal contact with ACAS for early conciliation until 8 November 2022, after the initial time limit had expired at the end of August 2022, and she did not present her ET1 until 10 January 2023.

The tribunal accepted the claimant's evidence that she was busy with examinations and work, but it was not satisfied that it was not reasonably practicable to present the claims in time. It also was not satisfied that the January 2023 presentation was within a further reasonable period. The complaint of unauthorised deduction from wages and the holiday pay claim linked to the period at Number 1 The Grange were therefore dismissed for want of jurisdiction. The judge observed that, if the previous employer had been placed in liquidation as asserted, the claimant would likely need to pursue the liquidator in relation to those sums.

Separately, the respondent conceded that £91.88 was due to the claimant in lieu of accrued but untaken holiday pay arising from her employment with Brass Monkey Grange, and undertook to pay that amount by bank transfer on 24 March 2023. The claimant accepted that undertaking, so that issue fell away and no further determination was required on it.