Mr AS Gilchrist v Argyle & Bute Council — 2018

The claimant was employed as a school janitor from February 2010 and retired on 24 October 2017. His ET1 concerned holiday pay, including payment for “8 weeks holiday” and any outstanding bank holidays for 2017 before retirement. The Tribunal treated the complaint as one in relation to holiday pay/deduction from wages under section 23 of the Employment Rights Act 1996.

The Tribunal found that the claimant had raised the matter with the respondent by telephone after his employment ended, had received no substantive response, and had later sent a recorded delivery letter on or about 7 January 2018. The respondent acknowledged receipt on 12 January 2018 and said the matter had been passed to its Senior HR Manager. The claimant then contacted ACAS again, began Early Conciliation on 5 March 2018, and his ET1 was received on 26 March 2018.

Applying the statutory time limit in section 23 ERA 1996 and the extension provisions in section 207B, the Tribunal held that it was not reasonably practicable for the complaint to be presented before the end of the three-month period. It relied on the approach in Palmer v Southend-on-Sea Borough Council and Asda Stores Ltd v Kauser, and concluded that the claimant’s active engagement with the respondent did not make late presentation reasonable.

The Tribunal also found that the claim was not presented within a reasonable period after the expiry of the three-month limit. It stated that even if the relevant wages had been paid on 30 November 2017, the claim would still have been out of time. ACAS Early Conciliation did not operate to extend an already expired time limit, so the Tribunal held that it had no jurisdiction and dismissed the complaint.