Bonkay-Kamara v Apcoa Parking UK Ltd

An Employment Tribunal may not, without a material change of circumstances, direct a pre-hearing review after it has already refused an application for that form of hearing. Its broad case-management power does not permit an unexplained reversal of that earlier decision. A fact-sensitive claim to acting-up pay, supported by pleaded matters capable of establishing an implied contractual entitlement, should not be struck out without hearing evidence merely because it appears weak. A deposit order may be the appropriate alternative.

An individual cannot pursue before the Employment Tribunal a claim under Regulation 4 of the Working Time Regulations. Nor can an employee pursue reimbursement of employment expenses as an unlawful-deduction claim where the statutory definition of wages excludes those expenses.

The claimant brought claims for acting-up pay, excessive working time and unpaid employment expenses. Although the Employment Tribunal had directed a full hearing and refused the respondent's application for a pre-hearing review, it later convened such a review. At that review, the Tribunal struck out the wages and working-time claims.

In a separate appeal, the claimant challenged the dismissal, after a full hearing, of his expenses claim. The respondent cross-appealed on the basis that the Tribunal lacked jurisdiction over that claim. The central issues were whether the pre-hearing review had been lawfully convened, whether the wages claim could be struck out, and whether the Tribunal had jurisdiction over the working-time and expenses claims.

1. The first appeal was allowed in part. The pre-hearing review of 14 July 2011 was convened without jurisdiction. The Tribunal had directed a full hearing and had expressly refused an application for a pre-hearing review. Its broad powers under rule 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations did not permit it to make the inconsistent later direction without a material change of circumstances. Goldman Sachs Services Ltd v Montali, [2002] ICR 1251, was followed.

2. No relevant change of circumstances was identified. The respondent's later letter was at most a conditional request for reconsideration, and its stated precondition had not occurred. If the later direction was made on the Tribunal's own initiative, the requirements of rule 12 had not been met. The orders made at the review therefore had to be set aside.

3. In any event, the wages claim was fact-sensitive and should not have been struck out. The pleaded expectation of acting-up pay, the alleged practice at another site, and the alleged assurance that payment would be addressed in a contract raised matters requiring evidence. A weak claim could instead have been addressed by a deposit order. This was an alternative ground because the jurisdiction point already disposed of that aspect of the appeal.

4. The working-time claim could not be restored. A claim based on Regulation 4 of the Working Time Regulations was not enforceable by the individual before the Employment Tribunal.

5. The second appeal was dismissed. The claimant accepted that the Tribunal lacked jurisdiction over the expenses claim because employment expenses were excluded from the statutory definition of wages. The Tribunal had therefore proceeded without jurisdiction.

• Employment Appeal Tribunal: The first appeal was allowed in part. The unlawful pre-hearing review and its strike-out orders were set aside, but the working-time claim could not proceed. The second appeal was dismissed because the Tribunal lacked jurisdiction over the expenses claim.
• Employment Tribunal: A pre-hearing review on 14 July 2011 struck out the wages and working-time claims. At a full hearing on 15 August 2011, the London Central Employment Tribunal dismissed the expenses claim.