Mr David Don v Represented by: Mrs T Adamson -15 Trade Union Representative I&H Brown — 2022

The Tribunal heard a preliminary issue on whether nine holiday pay claims, presented on 4 December 2021, were out of time. The claims concerned unpaid holiday pay for periods before December 2014 and were brought as claims under section 13 of the Employment Rights Act 1996 for unauthorised deductions from wages. Evidence was heard from four claimants and from the respondent's company secretary, Lynda Campbell.

The Tribunal found that time began to run in December 2014, when the respondent changed its approach to holiday pay to include overtime. It accepted that by 2015 the claimants who gave evidence were concerned they may have been underpaid, and that several had asked the respondent for information, but they did not pursue matters further. The Tribunal also accepted that some claimants feared retaliation if they complained, but it found no evidence that this concern was well founded.

Applying the reasonable practicability test under section 23 ERA 1996, and referring to Lowri Beck Services Ltd v Brophy and the authorities cited in that case, the Tribunal held that it would in fact have been reasonably practicable for the claims to have been brought in time. It placed weight on the fact that the claimants could have taken independent advice, that there was no evidence of adverse treatment of employees who had brought timely holiday pay claims, and that the claimants had chosen not to pursue the matter until they learned in 2021 that other employees' claims had been settled.

Because the claims were presented out of time and the Tribunal was not satisfied that it was not reasonably practicable to present them earlier, the Tribunal held that it had no jurisdiction to hear them. All of the claims were dismissed and no remedy was awarded.