B Lingard v The Isle of Wight NHS Trust: 1401513/2022
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.REASONS
[1]The claimant complains of unfair dismissal.[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore, the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.Background
[7]The claimant responded on 10 May 2022 stating “Is this serious, an unfair dismissal for discrimination is automatically unfair. This is embarrassing.” It was clear, therefore, that he did not understand that the Tribunal’s direction related to a claim under s.111 ERA 1996 only.[8]In further emails sent that day he purported to withdraw the claim due to intimidation by the ‘regional judge,’ complained EJ Rayner’s directions were harassment, identified that his complaint as one of discriminatory dismissal and indicated that he believed that the strike out warning related to that claim.[9]On 7 June the respondent filed its response to the claims.[10]Consequently, on 11 July 2022 I sent a direction to the parties that recorded the following “The claims in claim 1401513/2022: The Judge understands that despite ticking the box on the ET1 claiming unfair dismissal the claimant:a. is not pursuing a claim of unfair dismissal contrary to s.11 ERA 1996, but ratherb. seeks to argue that his dismissal was an act of discrimination, alternatively was automatically unfair contrary to s.103A ERA 1996 on the grounds that the principal reason for the dismissal was one or more protected disclosures said to have been made by the claimant. In those circumstances, the file will be noted that there is no claim for unfair dismissal under s.111 Employment Rights Act, and the respondent is not required to submit a response to it.”[11]The reference to s.11 was a typographical error, it was intended (as was apparent from the second paragraph) to be a reference to s.111 ERA 1996.[12]On 12 July 2022 the claimant replied, stating “your rights for unfair dismissal are from first day. The c is pursuing a claim to era s11”. The Tribunal therefore understood that the claimant maintained that he had brought a claim under s.111 ERA 1996. He did not suggest that the dates of employment identified in the claim form were wrong, and they did not satisfy the requirement in s.108 ERA 1996[13]Consequently, on 21 July 2022 I directed that the claim under s.111 ERA 2022 should be struck out, providing summary reasons to assist the claimant and to reassure him that his remaining claims were not affected by that decision.Conclusions
[14]The grounds for reconsideration are only those set out in Rule 70, namely that it is in the interests of justice to do so.[15]I address each grounds relied upon by the claimant in turn:a. The claimant he had an automatic right to bring a claim for unfair dismissal from the first day of his employment. That argument is simply wrong in so far as it relates to a claim under s.111 ERA 1996 and, in any event, I had considered it before dismissing the claim.b. I had committed fraud on the court. That complaint related to other claims (1401373/2021 and 1401244/2021) and disclosed no basis on which to conclude that Judgment in this case was perverse or an error of law, such that it was in the interest of justice to revoke it.[16]In so far as the application entreats me to reconsider and review my decision on matters of fact or arguments which I have previously determined, the Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/60 the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful, he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[17]There was no denial of natural justice in this case, the claimant simply does not understand the law.[18]Accordingly, I refuse the application for reconsideration pursuant to Rule 72 because it is not in the interest of justice for the Judgment to be varied or revoked.