Oct 17
The employer was the management company for a substantial block of apartments, employing a team of porters which the claimant joined in 2000. The claimant worked four days a week, and later three days a week, from 7 am to 7 pm. In addition, on each day he worked he was required to be on-call in the subsequent 7 p m to 7 am period, for which he received no payment. In 2014 he brought proceedings in the employment tribunal against the employer under section 23(1) of the Employment Rights Act 1996 for unauthorised deduction of wages, claiming that he had been underpaid by reference to the national minimum wage. The employment tribunal upheld the claim, holding that the claimant was entitled to receive the national minimum wage for his on-call hours and that, accordingly, there had been unauthorised deductions from his wages. The tribunal awarded the claimant the amount of the underpayment for six years prior to the commencement of proceedings, holding that section 9 of the Limitation Act 1980 applied so as to limit recovery of compensation to a period of six years. It rejected the claimant’s contention that section 23(2) and (3) of the 1996 Act provided another limitation period for an unauthorised deductions claim, so that, pursuant to section 39 of the 1980 Act, section 9 of that Act did not apply. The Employment Appeal Tribunal allowed the claimant’s appeal holding that although there was no limitation on the arrears a tribunal could award under section 23, there was still a “period of limitation” for the purposes of section 39 of the Limitation Act 1980, which was all that was required to displace the application of section 9 of that Act. Judgment was substituted in the agreed sum of £100,252.42. The employer, inter alia, appealed against the quantum decision.
On the appeal—
Held, appeal dismissed. The provisions of section 23(2)–(4) of the Employment Rights Act 1996 provided for a period—namely, three months from the deduction in question, or from the last deduction in any series of which it formed part—after which proceedings may not be brought to enforce a claim under Part II of the Act. That plainly constituted a “period of limitation”. In ordinary legal language that phrase (or its cognate, “limitation period”) denoted a period following the expiry of which a person with a legal right was unable to assert that right in legal proceedings. It was equally applicable to a case where the bar was expressed as a provision that the right ceased to be enforceable after the expiry of the period as to a case where the provision took the form that the tribunal in which it would have to be enforced ceased to have jurisdiction to do so. Provisions using the same formulation as section 23(2)–(4)—that the tribunal “shall not consider” a complaint presented after the specified period—applied to all the substantive rights conferred by the 1996 Act (the most familiar example being section 111 (2), which applied to unfair dismissal claims); and they were invariably referred to by tribunals as limitation provisions. That understanding of the phrase was also apparent from two of the leading textbooks. Accordingly in agreement with the Employment Appeal Tribunal, even if either section 5 or section 9 of the Limitation Act 1980 would otherwise have applied to the claimant’s claim they were disapplied by section 39 of that Act ( paras 25–26, 36, 37 ,38 39).
Timothy Brennan QC and Mark Green (instructed by Ashfords llp, Taunton) for the employer.
Betsan Criddle and Ben Jones (instructed through Advocate, with the assistance of Paris Smith llp, Southampton) for the claimant.