Coletta v Bath Hill Court (Bournemouth) Management Co Ltd

It is not correct that the three-month presentation rules in section 23 of the Employment Rights Act 1996 are merely jurisdictional and therefore incapable of displacing the six-year bar in section 9 of the Limitation Act 1980. Instead, subsection 23(2) and (3) prescribe a period of limitation for unauthorised deductions claims. Where a complaint about a series of deductions is brought within three months of the last deduction, section 39 of the Limitation Act 1980 disapplies the Act and the six-year back-stop of section 9 does not limit recovery.

The claimant succeeded at first instance in an ET finding that he had been underpaid at the national minimum wage. At a subsequent remedies hearing the ET limited arrears to six years, relying on section 9 of the Limitation Act 1980. The claimant appealed, contending that section 23(2)-(3) Employment Rights Act 1996 prescribes the relevant limitation period for unauthorised deductions and that section 39 Limitation Act disapplies section 9. The appeal raised the discrete legal question whether the three-month presentation periods in section 23 ERA amount to a "period of limitation" for the purposes of section 39 LA when the claim relates to a series of deductions.

1. Disposition: Appeal allowed. The ET's limitation ruling was set aside and the matter remitted for consequential orders in line with the parties' agreement. (Order to be agreed and lodged within 14 days.)
2. The court held that subsections 23(2) and (3) ERA prescribe a period of limitation for unauthorised deductions claims. A claim in respect of a series of deductions falls to be presented within three months of the last deduction in that series. This prescription is a "period of limitation" within section 39 LA and therefore disapplies section 9 LA. (See statutory framework and analysis.)
3. The correct legal approach: where Parliament has provided a specific regime for presentation of complaints under Part II ERA, that regime supplies the limitation period for those complaints. Section 39 LA makes no distinction between limitation periods that are said to be "jurisdictional" and those that are "procedural"; it simply disapplies the Limitation Act where another enactment prescribes a period of limitation.
4. On a question of fact, whether a series of deductions exists is for the ET to determine. If the ET is satisfied there is a series, subsection 23(3) prescribes the relevant limitation date as the date of the last deduction. The remedy available under section 24(1)(a) ERA for unauthorised deductions is not cut down by a separate six-year statutory back-stop where the statutory presentation rules of section 23 are satisfied.
5. The decision considered and distinguished opposing policy and comparative submissions, including arguments drawn from contract claims under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and authority where the point was assumed but not argued. The court declined to import a six-year back-stop from general limitation law where Parliament had created a specific statutory regime for the ET.
6. Practical result: where a complaint about a series of unauthorised deductions is presented within three months of the last deduction in the series, the ET may order payment of the unpaid sums subject to other statutory limits; the six-year limit in section 9 LA does not automatically apply. The court directed the parties to agree consequential orders.

• Employment Tribunal (Southampton) - Remedy Judgment 11 November 2016: awarded arrears limited to six years (Employment Judge Salter sitting with members). The ET held section 9 Limitation Act 1980 provided a long-stop date. (Appeal from this decision to the EAT.)
• Employment Appeal Tribunal - Judgment allowing appeal and displacing the ET's six-year limitation ruling; remitted for consequential orders. (29 March 2018)