Claimant v Dixons of Westerhope Ltd — 2022

The claimant brought an unlawful deduction from wages complaint, saying he had been required to work 10 minutes longer each day than he was paid for. The respondent disputed that any unpaid time had been worked. The tribunal dealt first with the respondent's limitation objection under section 23 ERA 1996 and section 207B ERA, and expressly reserved the merits for a later final hearing.

The tribunal accepted the claimant's account of his communications with the respondent's payroll department, ACAS and later Digby Brown. It found that he emailed payroll on 22 July 2021, that early conciliation began on 8 August 2021 and ended on 9 September 2021, and that Digby Brown later told him the deadline was 13 December 2021. Applying Fergusson v Combat Stress and The Commissioners for HMRC v Serra Garau, the tribunal held that section 207B(3) operates as a stop-the-clock provision and that any part of the ACAS period falling before the primary limitation period starts does not count.

On that basis, the tribunal held that the complaint was out of time, but that it had not been reasonably practicable for the claimant to present it earlier because the mistaken time calculation given by Digby Brown was reasonable rather than negligent. It further found that the claim had been presented within a reasonable further period, so the unlawful deduction complaint could proceed. No liability finding and no monetary remedy were made in this judgment; the case was left to be listed for a later final hearing.