Fulton & Anor v Bear Scotland Ltd

For a complaint concerning a series of deductions, section 23(3) of the Employment Rights Act 1996 requires both a factual link and a sufficient temporal link between deductions. A gap of more than three months between successive underpayments breaks the series. It is a binding rule, not a rebuttable presumption.

The statutory exception applies where it was not reasonably practicable to present the complaint within time. A tribunal need not investigate factual similarity once the agreed facts establish that the required temporal link is absent.

The claimants alleged unlawful deductions because overtime and other payments had been omitted from holiday pay. An Employment Tribunal partly upheld the claims. Following an earlier Employment Appeal Tribunal decision, reported at [2015] ICR 221, the case was remitted to determine which deductions were in time.

On remittal, the Tribunal held that claims separated from successive underpayments by a gap exceeding three months were time-barred. The claimants appealed, contending that the earlier decision established only a rebuttable presumption and that further factual enquiry was required.

The central issue was whether the earlier construction of section 23 of the Employment Rights Act 1996 imposed an absolute temporal rule for a series of deductions.

1. Appeal dismissed. The Tribunal made no error of law in treating the earlier Employment Appeal Tribunal ruling as binding and in excluding the deductions separated by gaps of more than three months.

2. The earlier ruling in Bear Scotland Ltd v Fulton, [2015] ICR 221, construed section 23(2) and (3) of the Employment Rights Act 1996. Its conclusion that a series of deductions requires both factual and temporal links, and that a gap exceeding three months ends the series, was part of its ratio decidendi. It bound the Employment Tribunal.

3. A differently constituted Employment Appeal Tribunal may depart from an earlier decision only in limited established circumstances. None was present. In any event, an earlier Employment Appeal Tribunal decision cannot be revisited in a later appeal in the same litigation. The proper course was an appeal to the Court of Session or Court of Appeal.

4. The three-month rule is not merely a strong presumption. Section 23(4) contains the defined qualification: the Tribunal may extend time where timely presentation was not reasonably practicable and the further period is reasonable. It does not permit undefined factual circumstances to preserve a series once the temporal link has failed.

5. Arthur v London Eastern Railway Ltd, [2007] ICR 193, concerned the different wording and subject matter of section 48(3). Its requirement for a factual assessment of a series of similar discriminatory acts did not qualify the construction of section 23. As the material dates were agreed and the temporal link was broken, no further factual enquiry was required. No issue of equivalence arose.

• Employment Appeal Tribunal: dismissed this appeal from the Tribunal's post-remittal limitation decision.

• Employment Tribunal: after remittal, held that deductions separated by gaps of more than three months were time-barred.

• Employment Appeal Tribunal: the earlier appeal, reported at [2015] ICR 221, had mixed success and remitted the proceedings for determination of the limitation issues.

• Employment Tribunal: judgment dated 12 June 2013 found certain unauthorised deductions from wages.