Claimant v Gareloch Support Services (Plant) Ltd — 2018

This was a preliminary issue decided on the papers in Glasgow on 14 August 2018. The claimant brought a holiday pay / unlawful deductions complaint under s.13 ERA 1996. The respondent argued that time ran from the effective date of termination, which it put at 14 May 2017, and that ACAS contact on 17 August 2017 was outside the three-month limit. The tribunal made no findings on the substantive merits of the wage claim, on whether the Working Time Regulations 1998 or the Merchant Shipping Regulations applied, or on whether the claimant had actually suffered unlawful deductions.

The tribunal held that the claim was in time. It accepted, on the claimant's pleaded case, that the final alleged deduction occurred when the final payment was made on 31 May 2017 and that, if a payment for accrued but untaken leave was due on termination, the omission of that element from the final payment was an underpayment rather than a case of complete non-payment. On that basis, time started to run on 31 May 2017 and the claim form presented on 27 September 2017 was within time.

In reaching that conclusion, the tribunal referred to s.23(1)(a) and s.13(3) ERA 1996 and to Arora v Rockwell, distinguishing the respondent's reliance on complete non-payment authorities. It noted that the result was contingent on future findings that there had been an unlawful deduction on 31 May 2017 and a series of similar deductions, and that time-limit questions might need to be revisited at the final hearing if those assumptions were not established. The tribunal also flagged that Bear Scotland might need to be considered at the final hearing if there was an argument about a gap in the series of deductions.