Miss L Calin v Work Experience Ltd: 1403482/2022
JUDGMENT
The complaint of Unfair Dismissal is struck out.REASONS
[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. _____________________________ Employment Judge Dawson Date: 5.12.2022[1]On 14 November 2022 the claimant was sent a strike out warning on the basis that part of the claim was of unfair dismissal, but the claimant had less than 2 years’ employment with the respondent. Generally a claim of unfair dismissal cannot be brought unless a person has 2 year’s employment with their employer. The strike out warning stated that it did not appear that any of the exceptions to the two-year service rule applied to the claimant's case. The claimant was given an opportunity to give reasons why the complaint of unfair dismissal should not be struck out. The claimant did not contact the tribunal and, therefore, on 5 December 2022 the unfair dismissal complaint was struck out.[2]On subsequent consideration of the file it was noted that the claim form stated that the claimant was asking for compensation because she had Case Number: 1403482/2022 been automatically unfairly dismissed because she had requested her statutory rights to be met.[3]On those circumstances on 26 January 2023 the tribunal wrote to the parties stating that it was considering reconsideration of the judgment dated 5 December 2022 on the grounds that the claim should not have been struck out.[4]The parties consented to the reconsideration being dealt with on paper and were invited to make submissions.[5]In its submissions the respondent stated I am advised that if the claim of unfair dismissal is because the Claimant says that she was dismissed for asserting a statutory right, then she might still have a claim for automatic unfair dismissal for which she does not require 2 years’ service. However, if this is the case, then I request a preliminary hearing to determine whether the unfair dismissal claim has prospects of success, in order that strike out of the claim or a deposit order might be considered. The Claimant was dismissed within the first 2 years of her service because of a complaint from a third party service-user, who claimed that she had been made sore and uncomfortable by the Claimant’s care of her.[6]The claimant confirmed that her case was that she had been dismissed for asserting a statutory right the Working Time Regulations.[7]If the claimant was dismissed because she had alleged that her employer had infringed a relevant statutory right, then the claimant would not need 2 years’ service in order to bring her claim of unfair dismissal (see section 108 Employment Rights Act 1996).[8]In those circumstances the strike out warning was wrong and the unfair dismissal claim should not have been struck out.[9]It is therefore appropriate to revoke the decision of 5 December 2022 .[10]The respondent’s argument that the case should be listed for a preliminary hearing to determine whether the unfair dismissal claim has reasonable prospects of success can only be properly considered when the issues in the case are clear. Those circumstances the case will be listed for a one hour preliminary hearing to determine the issues in the case and for the judge to give further directions.