Claimant v Epsom and St Helier University Hospital NHS Trust
Outcome
Individual claims
The tribunal struck out all wage deduction claims except for two specific £1998 claims relating to 9 overruns. Claims for £22,200, £5,328 and an unspecified part of £8,214 were either barred by the two-year limitation period in s.23(4A) ERA 1996 or out of time with no reasonable prospect of establishing it was not reasonably practicable to claim in time. The tribunal rejected the claimant's argument that earlier deductions could be claimed as part of a series, because the statute expressly excludes claims before the two-year period 'despite' the series provisions.
The claimant's application to amend and expand the scope of the direct race discrimination claim was refused. The claim remains limited to the allegations identified at a previous preliminary hearing before EJ Codd in June 2023 (rota alterations, complaints not responded to, days retrospectively removed, study leave cancelled, requirement to prove hours, threats regarding overpayment). The claimant had expressly abandoned any application to amend at that earlier hearing and provided no good explanation for the long delay in now seeking to expand the claim.
The claimant's application to add a new direct age discrimination claim was refused. This application was made over a year after the claimant had expressly confirmed before EJ Codd that there was no application to amend the claim. No good reason was given for not bringing this claim at the outset or before EJ Codd. The claim would be considerably out of time if brought afresh, would introduce new issues even if restricted to the existing race claim allegations, and would endanger the 7-day trial scheduled for November 2024. Applying Selkent principles, the amendment was refused.
This claim was identified as extant at the preliminary hearing before EJ Codd in June 2023 and remains part of the case to be determined at the full merits hearing scheduled for November 2024.
This claim was identified as extant at the preliminary hearing before EJ Codd in June 2023 and remains part of the case to be determined at the full merits hearing.
Unpaid notice pay claim was identified as extant at the preliminary hearing before EJ Codd in June 2023 and remains part of the case to be determined at the full merits hearing.
Facts
The claimant, an NHS employee of approximately 20 years' service, brought claims including unlawful deduction from wages, constructive dismissal, holiday pay, notice pay and direct race discrimination. At a preliminary hearing in June 2023 before EJ Codd, the claimant (then represented by counsel) expressly abandoned any application to amend or expand the claims beyond those in the second ET1. The scope of the race discrimination claim was identified and limited to six specific allegations concerning rota alterations, complaints handling, study leave and wage matters. A year later, the claimant sought to expand the race claim to include new allegations going back to the start of employment and to add a new age discrimination claim.
Decision
The tribunal struck out most of the unlawful deduction from wages claims as either barred by the two-year limitation period in s.23(4A) ERA 1996 or out of time with no reasonable prospect of establishing reasonable practicability. Only two specific claims for £1,998 each relating to overruns survived. The tribunal refused both the application to expand the race discrimination claim and the application to add an age discrimination claim, applying Selkent principles and noting the claimant had expressly abandoned amendment applications a year earlier, provided no good explanation for the delay, and the amendments would endanger the November 2024 trial.
Practical note
Section 23(4A) ERA 1996's two-year backstop for wage claims operates 'despite' the series of deductions provisions, preventing claimants from reaching back beyond two years by linking old claims to recent ones; parties who expressly abandon amendment applications at case management hearings will face very significant obstacles to reviving them later, particularly where this would endanger a scheduled full merits hearing.
Legal authorities cited
Statutes
Case details
- Case number
- 2305005/2022
- Decision date
- 9 September 2024
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Service
- 20 years
Claimant representation
- Represented
- Yes
- Rep type
- barrister