Case 4111596/2021 · Employment Tribunal
Ballantyne v T/a Hazel Hiram Dental Care — 2022
- Case reference
- 4111596/2021
- Decision date
- 12 January 2022
- Jurisdiction
- Scotland
- Judge
- Employment Judge M Sutherland
Parties
2 namedClaimant
Ballantyne
Respondent
Key findings
Tribunal's reasoningThe claimant brought a complaint on 2 October 2021 for unpaid wages said to have been due on 27 April and 27 May 2021, covering work done between 1 and 19 April and sick pay for 20 April to 10 May 2021. The hearing was a preliminary issue on limitation: whether it was not reasonably practicable to present the complaint within the primary time limit, and if so whether it was brought within a further reasonable period. The claimant was represented by her father, the respondent appeared in person, and there were no documents or submissions before the tribunal.
The tribunal found that the claimant had been employed from November 2020 until 17 May 2021. She resigned on 19 April 2021 with four weeks' notice, told the respondent on 22 April that she was not fit to work because of anxiety, and provided a sick note on 30 April. There was no contractual entitlement to sick pay beyond statutory sick pay. The claimant also started alternative employment on 10 May 2021 and was not seeking sick pay after 11 May. By the end of April 2021 she was aware of the right to bring an unlawful deduction from wages claim and had access to specialist advice through her father.
Applying section 23 ERA 1996 and the early conciliation extension provisions, the tribunal held that the complaint was out of time. It found that the claimant's anxiety did not amount to an impediment making it not reasonably practicable to present the claim in time, because she was fit to start a new job on 10 May 2021, had not been absent from work since then, and was able to contact ACAS to start early conciliation in June 2021. The tribunal also found that she knew, or ought to have known, about the three-month time limit and could reasonably have taken steps to ascertain it.
The tribunal concluded that it had been reasonably practicable for the claimant to lodge the complaint within the primary limitation period. It therefore did not need to decide whether the claim was brought within a further reasonable period, and the unlawful deduction from wages claim was dismissed.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | Dismissed because the complaint was not lodged within the time limit and the tribunal found it was reasonably practicable to present it in time. The judgment contains a date inconsistency in paras 21 and 24, referring to the ACAS Early Conciliation certificate as 22 June 2020, whereas para 10 records 22 June 2021. | Dismissed | — | — |
Legal tests applied
11 references- s.23 ERA 1996
- s.207B(3) ERA 1996
- s.207B(4) ERA 1996
- reasonable practicability
- Porter v Bandridge Ltd
- Palmer and Saunders v Southend on Sea Borough Council
- Asda Stores Ltd v Kauser
- Dedman v British Building and Engineering Appliances Ltd
- Trevelyans (Birmingham) Ltd v Norton
- Schultz v Esso Petroleum Co Ltd
- Cullinane v Balfour Beatty Engineering Services Ltd and anor
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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