Mr J McKennaClaimantTesco Stores LimitedRespondentDate 5 June 2024
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[1]The claimant complains of unfair dismissal and disability discrimination.[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 unless the complaint falls into one of the categories set out in section 108(3) of the Employment Rights Act 1996 where there is no minimum service requirement.[3]The claimant was employed by the respondent for less than two years.[4]By a letter dated 10 May 2024, the claimant was given an opportunity to say why the complaint of unfair dismissal should not be struck out.[5]By a letter dated 24 May 2024, the claimant set out reasons why he considered the complaint of unfair dismissal should not be struck out. He referred to his complaint of discrimination arising from disability about his dismissal and asserted that any dismissal arising from his disability would automatically be considered unfair and that there were exceptional circumstances (the only one referred to being the alleged discrimination arising from his disability) which meant his case should be exempt from the usual requirement of two years’ service for unfair dismissal claims. The claimant fails to distinguish between a complaint of disability discrimination under the Equality Act 2010 and a complaint of unfair dismissal brought under the Employment Rights Act 1996. A dismissal which is an act of disability discrimination under the Equality Act 2010 is not a category of “automatically unfair” dismissals under the Employment Rights Act 1996 to Case No: 2401186/2024 which the two year service requirement does not apply. The Tribunal has no discretion to allow a complaint of unfair dismissal under the Employment Rights Act 1996 to proceed, where the claimant does not have at least two years’ service and where the claim does not fall into any of the categories defined in the Employment Rights Act 1996 where there is no minimum service requirement.[6]Since the claimant had less than two years’ service and the complaint of unfair dismissal is not one to which the two years’ minimum service requirement applies, the complaint of unfair dismissal is struck out. The claimant’s complaints of disability discrimination brought under the Equality Act 2010 are not affected by this judgment.[1]I have undertaken a preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his complaint of unfair dismissal.[2]The complaint of unfair dismissal was struck out for reasons previously set out. In summary, this was because the claimant did not have two years’ service and his complaint was not of a type to which the two years’ service requirement did not apply.[3]The claimant’s complaints of disability discrimination under the Equality Act 2010, which may include a complaint that his dismissal was an act of discrimination, were not affected by this judgment and are to be discussed and clarified at a private preliminary hearing listed for 23 July 2024.
The Law
[4]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[5]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked. Case No: 2401186/2024[6]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. Decision on the Application[7]The request for reconsideration effectively repeats the assertion made in the letter of 24 May 2024 that the dismissal was discrimination arising from disability and that this means the dismissal would be automatically unfair.[8]The claimant is mistaken in his understanding of the law. A discriminatory dismissal is not a category of unfair dismissal to which the two year service requirement does not apply. Although such a dismissal may be “unfair”, in the colloquial sense of the word unfair, a dismissal is only an “unfair dismissal” in the sense of a complaint brought under the Employment Rights Act 1996 if the requirements for bringing such a complaint, as set out in the Employment Rights Act 1996, are satisfied. This sets out a requirement of two years’ service, unless one of the categories set out in s.108(3) applies. A dismissal which is an act of discrimination according to the Equality Act 2010 is not a category set out in s.108(3).[9]For these reasons, I conclude that there is no reasonable prospect of the original decision being varied or revoked and I refuse the application.[10]As explained in the original judgment, the judgment striking out the complaint of unfair dismissal does not affect the claimant’s complaints of disability discrimination brought under the Equality Act 2010.