The respondent was previously ordered to pay remuneration for the protected period to all relevant staff after mass redundancies, which the claimant did not receive. The main issue here was the time limit and since the claim was prima facie not made within the ‘primary time limit’ set out on the legislation the tribunal had to consider whether it was made within a ‘reasonable period’. The tribunal relied heavily on the factors contained in the judgment in Cullinane v Balfour Beatty Engineering Services Ltd [2011] UKEAT 0537/10/0504. 

However, what is most noteworthy here is the tribunal’s recognition that the ‘primary period’ can be as long as 6 months when an award is made prior to any dismissals (although in this case no prior award was made). This is so because a claimant can enjoy the primary time-limit of 90 days from the start of the protected period, plus the following three months within which to bring an Article 220 complaint in relation to failure to pay. The tribunal concluded that the claim was indeed brought within a ‘reasonable period’, also noting that the Department for Employment and Learning (who are then required to make a payment as statutory guarantor) would suffer no prejudice.

PRACTICAL LESSONS

The tribunal here justified its purposive interpretation of the legislation on the fact that in the Culliane case (which related to unfair dismissal) the tribunal had regard to the fact that the relevant background is that the primary time-limit is one of 3 months. Therefore in protective payment cases, why shouldn’t the tribunal be allowed to consider the reality that sometimes a 6 month primary period can apply? Article 220 claimants certainly appear to be better protected as a result of this decision since late claims can be gauged against the 6 month period as opposed to a 3 month period which can only realistically benefit a late applicant.