Mr G O’Brien v R Gilmour & Sons Ltd — 2019

Mr G O’Brien brought claims for unlawful deduction of wages and breach of contract arising from sums he said were due at the end of his employment, including holiday pay and pay in lieu of notice. The Tribunal found that his employment ended on 22 December 2017, that the primary time limit for either claim expired on 21 March 2018, and that because he had started ACAS Early Conciliation within time the extended limit expired on 21 April 2018. His ET1 was not lodged until April 2019, almost a year after that extended deadline.

The Tribunal accepted that the claimant had been caring for his father, who had terminal cancer, and that he had started a new job during that period. It nevertheless held that it was reasonably practicable for him to present the claims in time, because he had already contacted ACAS within the limitation period, had engaged with Early Conciliation, and knew there was a short time limit for lodging a tribunal claim. The Tribunal also noted that ignorance of the time limit would not normally provide a valid excuse.

Accordingly, the Tribunal held that both claims were presented outwith the relevant time limits under section 23 of the Employment Rights Act 1996 and the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994, declined to exercise its discretion to hear them out of time, and held that it did not have jurisdiction to hear the claims. No monetary award was made.