(sitting alone) Brett Ferguson v Represented by Ms L Beedie J&E Shepherd — 2023

This was an open preliminary hearing in Dundee on 27 June 2023 before Employment Judge M Sutherland sitting alone. The tribunal was asked to determine the claimant's application dated 31 May 2023 to amend his claim and the respondent's application for expenses. No evidence was heard because the parties agreed there was no dispute about the factual issues relevant to the amendment application. The claimant's original ET1, lodged on 1 March 2023, complained of unlawful deduction from wages in relation to unpaid gross wages of £2,500 for the month to 31 October 2022, and he accepted that if the amendment was not allowed his claim would be time barred.

The proposed amendments were to add a holiday pay complaint and a bonus complaint. The tribunal found that the holiday pay amendment would be a substantial amendment because it would require different enquiries into what holiday had been accrued, what had been taken, and when any payment fell due. The respondent said the claimant had accrued 23.33 days, had taken 24 days, and therefore had no accrued but untaken holiday at termination. The claimant did not challenge that calculation or explain a factual basis for an entitlement to approximately one week's holiday pay. The tribunal also considered that, on the contract, any holiday pay issue arose on 31 October 2022 rather than 30 November 2022, so the amendment did not solve the time bar issue and had little if any reasonable prospect of success.

The bonus amendment was also treated as a substantial amendment. The claimant said he had been told the bonus was circa £2,000 to £5,000 and might be pro-rated, but he could not identify any contractual or implied term entitling an ex-employee to a bonus payable two months after termination. The tribunal noted that bonuses had been paid previously to staff who remained in employment in December, which did not assist the claimant. It also rejected the submission that the original wage complaint, together with the proposed holiday pay and bonus complaints, formed a series of deductions with sufficient similarity of subject matter. Taking all the circumstances into account, including the delay in making the amendment once the claimant had professional representation, the limited prospects of success, and the prejudice to the respondent, the tribunal refused the application to amend. The respondent's expenses application was not determined at this hearing and was left to be dealt with after final judgment.