Mr D Dimitrov v Fresh Direct Ltd: 2415315/2018
JUDGMENT
The claims of Unfair Dismissal and for a Redundancy Payment are struck out.REASONS
[1]The claimant claims unfair dismissal and a Redundancy payment[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, and section 155 requires the same period for a claim for a redundancy payment.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such complaints.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaints should not be struck out.[6]Accordingly, both claims are struck out. The claimant’s other complaints are not affected by this judgment. Employment Judge Holmes Date: 23 November 2018[1]The claimant did not attend the hearing and it appeared he was living in Bulgaria once again. There was no recent correspondence explaining his absence or providing written representations.[2]The Preliminary Hearing was principally listed to determine whether the claimant’s race discrimination claim was presented in time. His unfair dismissal and redundancy payment claims had been struck out for lack of 2 years’ service. There was also a breach of contract/notice pay claim although the respondent contended the claimant had been paid for his notice period.[3]There had been a lack of active pursuit of his claim by the claimant, perhaps because he was in Bulgaria. Although he had emailed on 12 March 2019, enclosing irrelevant documents, the most recent correspondence which had some bearing on his race discrimination claim was an email of 18 February 2019. Case No. 2415315/2018[4]Whilst the whole claim was dismissed for the claimant’s non-attendance, under Rule 47, his race discrimination claim could not have proceeded. On the information before the Tribunal, the effective date of termination, was 21 or 22 April 2018, but Early Conciliation was not notified to ACAS until 31 July 2018, with an EC Certificate issued on 3 August 2018. However, the ET1 claim form was not presented until 27 September 2018. There was no evidence before the Tribunal upon which it could exercise its judicial discretion to allow the race discrimination claim which was presented out of time to continue nonetheless to a final hearing. As to the breach of contract/notice pay claim, the statutory time limit is even more rigorous; it was plainly reasonably practicable to present the ET1 claim in time and that claim would also have been dismissed as being presented out of time.