Coletta v Bath Hill Court (Bournemouth) Management Co Ltd

For unauthorised-deduction claims, Employment Rights Act 1996 section 23 prescribes a period of limitation. A worker must present a complaint within three months of the relevant deduction, or, for a series, the last deduction.

That remains a prescribed limitation period even though it governs the tribunal's ability to consider the complaint and does not itself impose a back-stop on arrears. Accordingly, Limitation Act 1980 section 39 disapplies the six-year period in section 9. Before the later statutory two-year cap, a timely complaint concerning a qualifying series could recover the whole series.

The claimant, a porter employed from 2000, succeeded in a claim that he had been paid less than the national minimum wage. At a remedies hearing, the Southampton Employment Tribunal awarded arrears limited to the six years before proceedings, holding that Limitation Act 1980 section 9 applied.

He appealed. The issue was whether the three-month time provisions for unauthorised deductions in Employment Rights Act 1996 section 23 were a prescribed period of limitation for section 39 of the 1980 Act, thereby excluding the six-year statutory limitation.

1. Appeal allowed. The Employment Tribunal erred in imposing a six-year limit under Limitation Act 1980 section 9 upon the claimant's recovery for a series of unauthorised deductions.

2. Section 9 would, on its face, encompass a claim to recover a sum made recoverable by statute. But section 39 excludes the 1980 Act where another enactment prescribes a period of limitation. Sections 23(2) and (3) of the Employment Rights Act 1996 do so. They require presentation within three months of the deduction complained of, or within three months of the last deduction in a series.

3. The statutory language does not distinguish a limitation affecting the tribunal's jurisdiction from one affecting the remedy or the amount recoverable. A timely section 23 complaint is therefore subject to a prescribed limitation period for section 39, even though section 23, before the 2015 amendment, did not separately cap the period of arrears.

4. A series requires sufficient factual similarity and temporal frequency. If that factual condition is met, the statutory consequence is that the entire series is governed by the three-month period running from its last deduction. The claimant had brought his complaint within that period.

5. Parliament later introduced a two-year back-stop by the Deductions from Wages (Limitation) Regulations 2014. Its later enactment confirmed that an express arrears cap was legally distinct from the pre-existing limitation for bringing a complaint. The six-year cap could not be implied through section 9.

6. The remedies award was to be set aside and replaced by an agreed sum reflecting that conclusion. The parties were given 14 days to submit agreed written representations on the consequential order.

• Employment Appeal Tribunal: Allowed the claimant's appeal and held that Limitation Act 1980 section 9 was disapplied by section 39.

• Southampton Employment Tribunal: At the remedies hearing on 11 November 2016, limited arrears for unauthorised deductions to six years and awarded £44,603.05.

• Southampton Employment Tribunal: In a judgment promulgated on 9 September 2015, upheld the claimant's national minimum wage claim. The judgment records that decision was subsequently upheld by the Employment Appeal Tribunal, but gives no citation.