Mr S Buckingham v Maidstone and Tunbridge Wells NHS Trust: 2306847/2023
JUDGMENT
The Claimant’s application for reconsideration of the judgment dismissing his unfair dismissal complaint given in this matter on 11 July 2024 is refused. The remaining parts of the Claimant’s claim will proceed. BACKGROUND[1]The Claimant’s Claim Form was filed on 3 December 2023. The Claimant claims that: a) He was constructively unfairly dismissed by the Respondent; b) He was discriminated against by the Respondent on the ground of disability; and c) He is owed certain payments by the Respondent.[2]The Respondent resists these complaints.[3]The Claimant was employed by the Respondent for less than two years, and so the Tribunal wrote to him on 2 April 2024, which letter included the following: “In your claim form one of your complaints is that you were unfairly dismissed. Under section108 of the Employment Rights Act 1996 claimants are not entitled to bring a complaint of unfair dismissal unless they were employed for two years or more except in certain specific circumstances which do not seem to apply in your case. It appears from your claim that you were employed for less than two years. If so, the Tribunal cannot consider your complaint that you were unfairly dismissed. As you do not appear to be entitled to bring that part of your claim an Employment 1 of 4 Judge is proposing to strike it out. This does not affect the other complaints in your claim form. You have until 16 April 2024 to give reasons in writing why your complaint of unfair dismissal should not be struck out.”[4]That letter also Ordered the Claimant to provide details of his disability discrimination complaint, but no deadline was put on when the Tribunal was to be provided with that information.[5]The Claimant wrote in reply to the Tribunal’s letter on the same day. That email contained the following: “I do concede that actual dismissal had not yet occurred, but that the Defendant was guilty of constructive unfair dismissal which could be causally linked to a protected characteristic, specifically disability. As such, actual dismissal would naturally fail, but constructive unfair dismissal I believe is an appropriate argument, and can be brought inside the two year period as this was causally linked to disability discrimination.”[6]The Claimant’s email did not respond to the Tribunal’s Order for details of his disability discrimination complaint.[7]On 10 July 2024 the Tribunal acknowledged the Claimant’s 2 April 2024 email, and noted that he had not responded to the part of the Tribunal’s letter requesting details of his disability discrimination complaint. The letter set a deadline of 14 days from the date of that letter for the Claimant “to comply withREASONS
[15]The Claimant was given until 16 April 2024 to make representations on why his unfair dismissal complaint should not be struck out, and he did so on 2 April 2024. Those representations did not alter my judgment, reached on 11 July 2024, that the Tribunal does not have jurisdiction to consider the Claimant’s unfair dismissal complaint. The fact that his complaint is of constructive unfair dismissal (as opposed to the non-constructive kind) does not alter the requirement in section 108 of the Employment Rights Act 1996 – unless an exception applies – for the Claimant to have accrued two years’ service in order to bring his complaint. The Claimant did not have two years’ service at the date his employment terminated, and – based on his Claim Form and his representations – I did not understand any of the exceptions to apply to him. 3 of 4[16]This does not prevent the Claimant from identifying what he avers was his constructive dismissal as an act of disability discrimination, and there is no minimum service requirement for complaints of unlawful discrimination based on protected characteristics (including disability).[17]The representations sent by the Claimant on 1 July 2024 were out of time. The Tribunal’s letter of 10 July 2024 was absolutely clear in its terms that the 14 day deadline set out in that letter was for further detail of the Claimant’s disability discrimination complaint. The deadline for the Claimant to make representations on the issue of whether his unfair dismissal complaint was to be struck out was, as written plainly in its letter of 2 April 2024, 16 April 2024.[18]The Claimant’s 21 July 2024 representations were not considered before I took my decision to strike-out his unfair dismissal complaint, but in any event, nothing in them alters my judgment that the Tribunal does not have jurisdiction to consider the Claimant’s unfair dismissal complaint.[19]For the reasons set out above, the Claimant’s application for reconsideration fails; the decision I took on 11 July 2024 to strike out the Claimant’s unfair dismissal complaint for lack of jurisdiction is confirmed.