Mrs F Codreanu-Marin v Grand at Grasmere Ltd: 2406281/2020
JUDGMENT
The complaint that the claimant was unfairly dismissed 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. Therefore, the claimant is not entitled to bring such a complaint.[4]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.[5]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. _____________________________ Employment Judge Batten 2 July 2020[1]On 2 July 2020, the Tribunal of its own initiative struck out the unfair dismissal complaint pursuant to section 108 of the Employment Rights Act 1996 (“ERA”) because the claimant does not have the necessary qualifying service to bring an ordinary unfair dismissal claim. I was the Employment Judge who signed that Judgment.[2]On 17 November 2020, at a case management preliminary hearing conducted by Employment Judge Doyle, the parties discussed the complaints which had been presented to the Employment Tribunal. From that discussion, it was apparent to Employment Judge Doyle that the claimant in fact sought to pursue an unfair dismissal claim within section 99 ERA. Such a claim does not require a claimant to have 2 years’ qualifying service. An issue therefore arose as to whether the Judgment which struck out the unfair dismissal complaint should be reconsidered. Case Number 2406281/2020 CODE P 2[3]The issue has been brought to my attention as the Judge who signed the Judgment which struck out the unfair dismissal complaint. I understand the reference to this issue at the case management preliminary hearing resulted in an application by the claimant for reconsideration of my Judgment, made orally at the case management preliminary hearing.[4]On 10 December 2020, in accordance with Rule 72(2), the Tribunal wrote to the parties to tell them that I considered that a reconsideration hearing was not necessary in light of the discussion at the case management preliminary hearing. The Tribunal also invited the parties to make any further representations in writing on the claimant’s application for reconsideration. The deadline for such further representations has now expired and neither party has submitted any further representations to the Tribunal. Rules of Procedure[5]Rule 70 of the 2013 Rules of Procedure empowers the Tribunal, on its own initiative or on the application of a party, to reconsider any Judgment. An application for reconsideration can be made orally in the course of a hearing. In addition, Rule 73 provides for reconsideration by the Tribunal on its own initiative subject to the procedure in Rule 72(2).[6]Rule 72(2) provides that, unless a reconsideration is refused under Rule 72(1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any written response and the views of the parties, that a hearing is not necessary in the interests of justice.[7]The test is whether it is necessary in the interests of justice to reconsider the Judgment. Broadly, it is not in the interests of justice to allow a party to reopen matters heard and decided, unless there are special circumstances which could have a material bearing on the outcome.Conclusion
[8]I have read and taken account of the record of the case management preliminary hearing of 17 November 2020. In particular, I note that when this issue was raised at the case management preliminary hearing, the respondent did not seek to persuade the Tribunal that the strike-out Judgment should not be reconsidered.[9]Having considered the issue raised at the case management preliminary hearing on 17 November 2020, and in the absence of further representations by the parties to the contrary, I am satisfied that there are Case Number 2406281/2020 CODE P 3 special circumstances which require me to revoke the Judgment dated 2 July 2020 which was sent to the parties on 3 July 2020. It is in the interests of justice that the claimant’s complaint of unfair dismissal shall be restored. _____________________ Employment Judge Batten Date: 4 January 2021Conclusion
[1]The claimant's claim that she was automatically unfairly dismissed pursuant to section 99 Employment Rights Act 1996 and Regulations 20(2) and 20(3) Maternity and Parental Leave Regulations 1999 is not well-founded and fails.[2]The claimant's claim that she was treated less favourably by the respondent because of pregnancy when she was dismissed for redundancy, pursuant to section 18 Equality Act 2010, is not well-founded and fails.