The claimant brought a claim for constructive unfair dismissal as well as arrears in pay, including holiday pay. The primary issue dealt with in this case was whether the claimant had presented his case within time.   The claimant’s employment ended on 12th March 2018 but the claim was not presented to the Industrial Tribunal until 7th September 2018.

In terms of outlining the law - for unauthorised deductions from wages, the claim should be presented, in line with Article 55(2) of the Employment Rights (NI) Order 1996, within 3 months from the date of payment of the wages from which the alleged deduction was made.

In terms of unfair dismissal, the same three month time limit is imposed by virtue of Article 145 of the 1996 Order which starts with the effective date of termination.   The question was whether the time limits could be extended by virtue of it not being ‘reasonably practicable’ for the claim to be presented within the relevant period (that being three months).

The claimant outlined that he was unable to present the claim due to his mother’s ill health as well as having to work outside of Northern Ireland in his new job.   He did concede that there was significant time off from this new job though.

The Tribunal reaffirmed the position in Porter v Bandridge Ltd [1978] IRLR 271 that it is for the claimant to prove that it was not reasonably practicable.  Furthermore, it was held that it is a question of fact that would consider the factors in the particular case and whether it was reasonably feasible for the claim to be presented.

In determining that the time limit would not be extended, it was held that as the law currently stands the ‘reasonably practicable’ test is a difficult threshold to attain for claimants. The claimant’s case was dismissed as it was out of time and the time limit should not be extended.

Practical Lessons

On foot of the high-profile nature of the PSNI holiday pay case (covered last week) and the news that this could then affect the wider civil service, it is likely that employers could see claims based upon unauthorised deductions from wages in relation to holiday pay.

This case demonstrates how the time limit still applies to those proceedings and under Article 55 of the 1996 Order the claim must be brought within three months of the date of payment where the unlawful deduction was made.  The ‘high threshold’ with the reasonably practicable test may provide some protection for employers who may face an influx of claims based upon holiday pay.

This case review was written by Jason Elliott BL.  NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/