Bonkay-Kamara v Apcoa Parking UK Ltd

An Employment Tribunal cannot, without a material change of circumstances, direct a pre-hearing review after it has refused an application for that form of hearing. Its wide case-management power does not permit an unexplained reversal of that earlier decision. If it acts on its own initiative, it must also comply with the applicable procedural requirements.

A fact-sensitive wages claim, supported by pleaded assertions of an acting-up arrangement, custom and practice, and assurances, should not be struck out where evidence is needed to determine whether it has reasonable prospects of success. A claim based on regulation 4 of the Working Time Regulations cannot be pursued by an individual before an Employment Tribunal.

The claimant, an employee of the respondent, brought claims for unpaid wages while acting up as a contract manager, excessive working time, and expenses. The Tribunal had initially directed a full hearing and refused the respondent's application for a pre-hearing review. It later convened a pre-hearing review, at which the wages and working-time claims were struck out.

On the first appeal, the claimant challenged both the Tribunal's jurisdiction to convene that review and the strike-out of the wages claim. The respondent cross-appealed on the basis that a claim under regulation 4 of the Working Time Regulations was not enforceable by an individual in the Tribunal.

On the second appeal, the claimant challenged dismissal of his expenses claim. The respondent cross-appealed, contending that the Tribunal lacked jurisdiction because employment expenses were excluded from statutory wages and the claimant remained employed.

1. First appeal allowed in part. The pre-hearing review of 14 July 2011 was convened without jurisdiction. The Tribunal had first directed a full hearing and had then refused an application for a pre-hearing review. Under Goldman Sachs Services Ltd v Montali, [2002] ICR 1251, a Tribunal may make an order inconsistent with an earlier order only in appropriate circumstances, normally where circumstances have materially changed.

   No relevant change had been identified. Nor had the respondent made an effective further application: its later request was conditional upon steps which had not occurred. If the Tribunal had acted of its own initiative, it had failed to comply with rule 12 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations. The review and its orders therefore had to be set aside.

2. The wages claim should in any event not have been struck out. It depended on factual questions about an asserted expectation and understanding of payment for acting-up duties, alleged custom and practice at another site, and an alleged managerial assurance. Those matters required evidence from both sides. The claim might have been weak, but a deposit order, rather than strike-out, could have addressed that position.

3. The working-time claim could not be restored. So far as it relied upon regulation 4 of the Working Time Regulations, enforcement was for the Health and Safety Executive and not an individual claimant before the Tribunal.

4. Second appeal dismissed. The claimant accepted that the Tribunal lacked jurisdiction over the expenses claim because the statutory definition of wages excluded expenses incurred in carrying out employment. The alternative contractual route was also unavailable in the Tribunal while he remained employed. The Tribunal would hear the parties before making the consequential final order concerning that element.

• Employment Appeal Tribunal: The first appeal was allowed in part. The pre-hearing review and its strike-out orders were set aside; the wages claim was to proceed to a full hearing, but the working-time claim could not proceed.
• Employment Tribunal: A pre-hearing review had struck out the wages and working-time claims while allowing the expenses claim to proceed. A subsequent full hearing dismissed the expenses claim. No citation for either Tribunal decision is stated in the judgment.