Mr James Paton v Enable Scotland (Leading the Way) Ltd — 2018

At the open preliminary hearing in Glasgow on 19 April 2018, Employment Judge Emma Bell considered Mr James Paton's unlawful deduction from wages claims against Enable Scotland (Leading the Way) Ltd. The claimant identified three distinct heads of complaint: holiday pay said to be underpaid because overtime and sleepover allowance should have been included, sick pay said to be underpaid on the same basis, and sleepover allowance said to be below the amount due under the National Minimum Wage Regulations. The parties agreed a number of facts about when holidays, sickness absence and sleepovers were paid, and the tribunal recorded gaps of more than three months between the relevant payments in each series.

Applying section 23 of the Employment Rights Act 1996 and the approach in Taylorplan Services Ltd v Jackson and others, the tribunal treated the three heads as separate claims because they concerned different subject matter and different factual triggers. It accepted the respondent's submission, by reference to Bear Scotland Ltd and ors v Fulton and ors, that gaps of more than three months broke any series for earlier deductions, so earlier deductions in each group were outside jurisdiction unless the claimant could bring them within the statutory escape route.

On holiday pay, the tribunal found that the normal time limit expired on 29 December 2014. Although Mr Paton had raised the issue in a grievance email on 4 December 2014 and had been consulting his union, he did not present a claim until 30 June 2015. The tribunal found that it was reasonably practicable for him to have claimed in time and did not accept that erroneous union advice in March 2015 entitled him to rely on the escape clause. It reached the same conclusion on the sleepover allowance claim, noting that he had been discussing the issue with his union during 2013 and 2014 and had raised a grievance on 15 December 2014, but had still not taken positive steps to check time limits before following the union's advice. On the sick pay claim, the tribunal noted that no union advice was relied on, that about 17 months had elapsed between the January 2014 deduction and the ET1, and that the claim was not presented within a reasonable further period even if lateness were excused. The judgment therefore held that the tribunal had no jurisdiction to deal with the claims except for deductions arising within the three-month period before the claim was lodged, and it listed the remaining case for a later hearing.