Mr E Manoli v Great Ormond Street Hospital for Children: 2205574/2018
JUDGMENT
The claim is struck out in its entirety. Specifically:a. The claimant’s complaint of unfair dismissal is struck out because the tribunal does not have jurisdiction to hear it as he does not have the requisite two years’ qualifying service to bring such a complaint.b. The claimant’s complaint of unpaid holiday pay is struck out because the claimant has since been paid his outstanding 8.6 days’ holiday pay in full by the respondent.REASONS
The Complaints
[1]By a claim form presented to the Employment Tribunal on 7 August 2018, the claimant brought complaints of unfair dismissal and of a failure to pay holiday pay. The respondent defended the complaints. - 1 -[2]The matter was listed for today’s preliminary hearing to determine whether or not the claimant had the requisite two years’ continuous employment to bring an unfair dismissal claim and to determine any other issues highlighted in the respondent’s letter to the tribunal of 4 March 2019. These included the issue of the holiday pay complaint (which the respondent maintained had now been paid); and whether the claimant wished to apply to bring a “discrimination” complaint.[3]The claimant did not attend today’s hearing. However, he was aware of it because he had previously applied to have the hearing postponed (but his postponement application had been refused by the tribunal). In addition, Mr Dempsey indicated that there had been contact with the claimant that day and in the days previously. Furthermore, the tribunal’s clerk rang the claimant on his mobile number to find out whether he would be attending but was only able to leave a message. Taking into account the information in front of me, I was satisfied that the claimant was aware of the hearing and there was no good reason why he was not here. I therefore decided to proceed in his absence. Strike out of claim Unfair dismissal[4]In his own claim form, the claimant indicated that his employment started on 20 June 2016 and terminated on 11 May 2018; in other words, less than the requisite two years’ service to bring a complaint of unfair dismissal. The response indicated that in fact the claimant’s employment began on 27 June 2016 but terminated on 11 May 2018 (again, less than two years’ service).[5]Mr O’Dempsey took me to the claimant’s contract of employment which confirmed that his start of employment was on 27 June 2016. He then took me to the dismissal letter which confirmed that the claimant’s employment terminated on 11 May 2018.[6]I therefore find that the claimant’s employment did indeed begin on 27 June 2016 and terminated on 11 May 2018. The claimant therefore has less than two years’ continuous employment. He does not, therefore have the qualifying service to bring a complaint of unfair dismissal and the tribunal does not have jurisdiction to hear such a complaint. The unfair dismissal complaint is therefore struck out. Holiday pay[7]The claimant did not specify in his claim form how much unpaid holiday pay was due to him. The respondent, in its response, indicated that 8.6 days’ pay was due and it was taking steps to pay it. Mr O’Dempsey showed me an email evidencing a bank transfer from the respondent to the claimant for £586 on 19 February 2019, stated to be in respect of “8.6 days lieu of annual leave”. In the absence of any other evidence to the contrary, I’m satisfied from this that the claimant has been paid any outstanding holiday pay due. - 2 -[8]Therefore, because it has been fully satisfied, I strike the complaint of holiday pay out. Amendment regarding “discrimination”[9]In his claim form, the boxes which the claimant ticked in section 8 regarding the type and details of claim were for unfair dismissal and holiday pay only. He ticked the further box which states “I am making another type of claim which the employment tribunal can deal with” and, underneath, where the form requests the claimant to state the nature of the claim, he wrote “Discrimination - Unfairly treated as none of my colleagues were investigated with the allegation in question.” He wrote nothing beyond this. Furthermore, none of the boxes above that indicating on the basis of what characteristic he was bringing a discrimination complaint (e.g. age, race or sex) were ticked. No other details of a discrimination complaint were set out in the claim form. Discrimination complaints in employment tribunals do not cover merely complaints of unfair treatment; they must be linked to a specific protected characteristic. No such characteristic was indicated in the claimant’s claim form. Therefore, no discrimination complaint was brought in that claim form.[10]In its letter of 4 March 2019 to the tribunal, the respondent indicated that, if the claimant wanted to amend his claim to bring a discrimination complaint, he would need to make an application to amend the complaint and that any application to amend could be dealt with at a preliminary hearing such as the one before me today. The issues for this hearing included the items set out in that letter and therefore the claimant could have brought an application to amend his claim at this hearing. No application was made, either at this hearing or in advance of this hearing. No amendment to the claim is therefore granted.Conclusion
[11]In summary, therefore, the claim is struck out in its entirety.