Mr A Johnstone v Milton & Stirling Ltd — 2022

The claimant alleged an unlawful deduction from wages arising from payment made on 30 October 2021. The tribunal calculated that the ordinary limitation period expired on 29 January 2022, and that, taking account of the ACAS early conciliation extension under s.207B ERA 1996, the deadline for presenting the claim was 11 March 2022. The second ET1 was not presented until 20 April 2022.

The tribunal accepted that the claimant had lodged an earlier, in-time claim on 6 January 2022, but that claim was rejected on 11 January 2022 because the respondent name on the ET1 did not match the ACAS early conciliation certificate. The rejection letter stated that the claim could not be accepted, returned the claim form, and said that if reconsideration was sought the claim form had to be presented again, amended if necessary, and that the relevant time limit had not altered. The tribunal found that the claimant misunderstood this process and believed only a spelling correction was needed.

Applying the 'not reasonably practicable' test under s.23(4) ERA 1996, and referring to Porter v Bandridge Ltd, London International College v Sen, Palmer and Saunders v Southend-on-Sea Borough Council, Software Box Ltd v Gannon, Adams v British Telecommunications plc, Wall's Meat Co Ltd v Khan, and Northumberland County Council v Thompson, the tribunal held that the substantial cause of the late presentation was the claimant's mistaken belief that his first claim remained effective. It found that this belief was not reasonable in light of the wording of the tribunal correspondence, including the bold warning that the time limit had not altered. The tribunal also found that the claimant's caring responsibilities did not explain the failure to comply with the limitation period.

The tribunal further held that, even if it had been wrong on reasonable practicability, the second claim was not presented within such further period as it would have considered reasonable. The claim was therefore dismissed for want of jurisdiction, and no monetary award was made.