Ms B Yavuz v Bahay Kubo Housing Association Ltd: 3200109/2025 and 6019759/2025
EMPLOYMENT TRIBUNALS
Case No 3200109/2025, 6019759/2025
Between
Ms B YavuzClaimantBahay Kubo Housing Association LtdRespondent
Before
Employment Judge ReidMr A Gloag (instructed by Counsel) for claimantMr J Munro Peninsula for respondentDate 26 January 2026
JUDGMENT
[1]The Claimant’s claim for unfair dismissal was not presented within the time limits in s111 Employment Rights Act 1996. It was a premature claim presented before the effective date of termination but not during a notice period within s111(3) Employment Rights Act 1996. The Tribunal therefore does not have jurisdiction to hear the unfair dismissal claim and it is dismissed. The effect of this is therefore that the Claimant’s associated application for interim relief under s128(1) Employment Rights Act 1996 is also dismissed.[2]The Claimant’s other claims are unaffected by this Judgment. She is still in time to re-present her claim for unfair dismissal. Note to parties: the next preliminary hearing for case management will take place on 14 August 2025 at 10 am (3 hours video hearing) as arranged with you at the end of this hearing. The parties are to provide a draft list of issues to the Tribunal by 7 August 2025 agreed as far as possible. Case Number: 3200109/2025 2
REASONS
[1]The Claimant presented her claim including this claim for unfair dismissal and her application for interim relief on 10 February 2025. Her employment ended on 28 February 2025. She has brought other claims unaffected by this Judgment.[2]I was provided with a bundle from both sides plus an updated witness statement from the Claimant. The Respondent provided a skeleton argument and I heard oral submissions on both sides. Findings on the nature of the employment contract as it affects time limit (jurisdiction) issues[3]The Claimant was employed under a fixed term contract for the period 19 February 2024 to 18 February 2025. It had a 6 month probation period (clause 1) and there was provision for earlier notice to be given (clause 15) but ultimately if everything went well and neither party gave notice, the fixed term contract was going to end on 18 February 2025. The Respondent did not have to give notice and neither did the Claimant for the contract to end.[4]The Claimant was told on 30 January 2025 that her 12 month contract was not going to be renewed but that did not amount to the giving of notice – the Respondent did not have to give notice and was simply going to let the fixed term expire and told her it was not going to be renewed. Case Number: 3200109/2025 2[5]What happened next was that the Claimant and the Respondent agreed to extend her fixed term contract to 28 February 2025 so that she could complete and be paid for the whole month. This arrangement was again not either side giving notice it was an agreed extension to the existing fixed term. She may question why her previous 12 month contract was not renewed and why her colleague Alan was taking over her work and whether the Respondent’s stated reasons were the Respondent’s real reasons (her witness statement para 13-14) but that is a different issue to the nature of the contractual relationship and how it was ending.[6]Telling the Claimant that her 12 month contract was not going to be renewed or the mutual agreement to extend for 2 weeks did not convert the fixed term contract to a contract terminable on notice. She was offered a right of appeal but the legal mechanics of the ending of the employment remained the ending of the fixed term as extended by 2 weeks by agreement.
Relevant law
[7]A claim for unfair dismissal must be presented within the time limits in s111(2) ERA 1996 (subject to any ACAS extension).[8]The claim must be presented within a specified period from the effective date of termination (the EDT). It can also be brought during the notice period under s111(3) ERA 1996.[9]s128 (2) ERA 1996 sets out the time limits for the interim relief application. The interim relief claim must be brought before the end of 7 days immediately following the EDT. The words in parenthesis in brackets ‘(whether before, on or after that date)’ refer back to the effective date of termination – ‘that date’. This allows the application to be presented before the EDT on the EDT or after the EDT as long as it is presented by 7 days after the EDT. S128(2) when read with s111(3) must therefore mean that an interim relief application can be made during the notice period – because the underlying unfair claim can be brought in the notice period, hence the reference to in brackets to an interim relief application before the EDT to cover the notice period situation.[10]I notified the parties that I would be considering Throsby v Imperial College 1977 IRLR 337. This is because if the termination arose because of the expiry of a fixed term contract (rather than the giving of notice and the Claimant presenting her unfair dismissal claim during a notice period) then the unfair claim would be premature because time to present the unfair dismissal claim starts to run from the date the fixed term expires and it is a premature claim if presented before then, meaning the Tribunal does not have jurisdiction to hear it. That is contrasted with the situation of an employee in a notice period who can bring their claim before the EDT.[11]Underpinning the application for interim relief must be an unfair dismissal claim the Tribunal has jurisdiction to hear. If the underlying unfair dismissal claim is premature the ET does not have jurisdiction and the Claimant cannot claim interim relief. Case Number: 3200109/2025 3[12]I was referred to Governing Body of Wishmore School [2011] EAT on behalf of the Claimant. I distinguish the facts of this case from the Claimant’s situation for the following reasons. This case did not involve a fixed term contract. It was an open ended contract involving a dismissal of an employee for misconduct, not the expiry of a fixed term which the Respondent did not want to renew (even if the Claimant suspects the Respondent’s reasoning behind that decision not to renew it). In Wishmore the employer had to do something to end the contract ie give notice in some way whether expressly or impliedly; in the Claimant’s case the Respondent did not have to give notice and neither did the Claimant.[13]Nothing either party did converted the fixed term (as extended by 2 weeks) into a situation where one party was actually or impliedly giving notice. The Respondent did not have to give notice and had not done so, it had merely said it was not going to extend the Claimant’s contract and telling the Claimant that her 12 month contract was not going to be renewed did not amount to giving notice in that context, even if her work had been praised and she expected it to be renewed.[14]Neither had the Claimant given notice. The letter dated 4 February 2024 did not change the legal nature of what was happening as regards the ending of the fixed term, even if the contract it was extended by 2 weeks. It offered a right of appeal but that did not change the Claimant’s contract from a fixed term contract into a contract terminable on notice or amount to the giving of notice.[15]Applying Throsby therefore the Claimant’s claim for unfair dismissal was premature and the Tribunal does not have jurisdiction to hear it. She does not fall within s111(3) ERA 1996 which allows an unfair claim to be presented before the EDT because she was not in a notice period when she presented her claim. It follows therefore that her application for interim relief cannot succeed because the Tribunal does not have jurisdiction to decide her unfair dismissal
claim.
[16]The Claimant is not out of time to re-present her unfair dismissal claim; it can be resubmitted and linked to her other claims which are unaffected by this judgment. The Claimant already has an ACAS certificate issued on 11 February 2025. Employment Judge Reid Dated: 21 May 2025 Case Number: 3200109/2025 1 EMPLOYMENT TRIBUNALS Claimant: Ms B Yavuz Respondent: Bahay Kubo Housing Association Limited[1]This Preliminary Hearing was listed by Employment Judge Massarella at a Preliminary Hearing held on 14 August 2025 to decide the following matters:a. to decide whether the Tribunal should exercise its discretion to accept the non-dismissal claims as issued in the Claimant’s first case (3200109/2025) or Case Numbers: 3200109/2025 6019759/2025 2 whether they should be struck out on the basis that the Tribunal lacks jurisdiction because the Claimant had not completed ACAS early conciliation when the case was presented;b. to determine the Claimant’s application to amend her case (presented on 7 August 2025), either by reference to Case 1 (3200109/2025) or Case 2 (6019759/2025) (depending on the outcome of the issue at (a));c. to finalise the issues in the case;d. to list the final hearing and give directions for its preparation.[2]In these Reasons, case 3200109/2025 is referred to as Case 1. Case 6019759/2025 is referred to as Case 2.[3]Because the first of the issues listed by Employment Judge Massarella potentially concerns whether Case 1 should be struck out, that issue needs to be dealt with by way of a Judgment rather than an Order. I have dealt with this amendment application as part of this same Judgment because it is closely connected with the first issue. An aspect of this second issue is whether new complaints can be added by way of amendment to Case 1. The remaining issues are considered in a separate case management order. Relevant sequence of events[4]The following Chronology of important dates can be succinctly stated. Case 1 was issued on 10 February 2025. The ET1 related to the Claimant’s treatment in her employment with the Respondent as a Housing Advice Officer, which was still current when the proceedings were issued. This had started on 19 February 2024 and had originally been for a 12 month fixed term period. She was engaged to work 7 hours a week at an hourly rate of £16 per hour. This resulted in gross monthly pay of £448.[5]On 30 January 2025, the Claimant had been informed by Herbert Fadriquela, the Respondent’s Chair of Trustees and the Claimant’s line manager, that the fixed term contract would not be extended beyond 28 February 2025. This was confirmed in writing on 4 February 2025.[6]As a result, the Claimant’s ET1 complained about this decision that her employment would end at the end of February 2024. The complaint was expressed to be that she had been automatically unfairly dismissed on the ground that she had made a protected disclosure. She did not have the necessary two years of continuous service to bring a claim for ordinary unfair dismissal. In addition, she argued that she had suffered sex discrimination in relation to the dismissal in that it was proposed that a man would take over her duties. Furthermore, she claimed interim relief given that she had a claim for automatic unfair dismissal. Case Numbers: 3200109/2025 6019759/2025 3[7]At the point at which the Claimant presented these proceedings, she had applied to ACAS to instigate Early Conciliation. This had started on 6 February 2025. However, by 10 February 2025, she had not yet received an Early Conciliation Certificate. That was issued the following day, 11 February 2025.[8]This lack of an ACAS Early Conciliation Certificate was not fatal to the Claimant’s interim relief application. It is not necessary to have such a Certificate when claiming interim relief. However, at a Preliminary Hearing held on 29 April 2025, Employment Judge Reid decided that the Tribunal did not have jurisdiction to hear the Claimant’s interim relief application. This was because at the point at which the ET1 was issued, the Tribunal did not have jurisdiction to hear the underlying automatic unfair dismissal claim. This was because it had been issued prematurely. At the point at which the claim was presented, the Claimant had not been given notice. Rather she had been told that the fixed term contract would not be extended beyond 28 February 2025. As a result, based on the statutory wording in the Employment Rights Act 1996, the Tribunal had no jurisdiction to consider the unfair dismissal claim. The consequence was that the Tribunal did not have jurisdiction to grant interim relief.[9]Although the Claimant sought to have that decision reversed in a reconsideration application, Employment Judge Reid maintained her decision. The remaining live issue in relation to Case 1 was the status of the remainder of the allegations, given that there was no Early Conciliation Certificate at the point at which the Claim Form had been issued. Status of remaining complaints in Case 1[10]By the time of the hearing before Employment Judge Massarella, the Court of Appeal had heard argument this issue in the case of Abel Estate Agent Limited and others v Reynolds [2025] EWCA Civ 1357, but judgment was awaited. The Court of Appeal issued its decision on 27 October 2025.[11]In that case, the Court of Appeal decided that complaints made on a Claim Form issued at a point where there was no Early Conciliation Certificate were complaints that the Tribunal had no jurisdiction to consider, because satisfying the requirements of Section 18A Employment Tribunals Act 1996 (namely that an Early Conciliation Certificate was required) was a precondition to the Tribunal having jurisdiction to decide those complaints on their merits. This was a general rule imposed by Parliament to which there could be no exceptions on particular facts.[12]The implication for Case 1 is that the Tribunal had no jurisdiction to consider any of the complaints that were raised. As already decided by Employment Judge Reid, the Tribunal had no jurisdiction to consider the automatic unfair dismissal claim and the associated interim relief application because they were premature. In the light of the decision in Reynolds, it also had no jurisdiction to consider the remainder of the claims because the ET1 had been issued without a valid ACAS Early Conciliation Certificate. Case Numbers: 3200109/2025 6019759/2025 4 Can Case 1 be saved from strike out way of amendment?[13]As Case 1 contained no complaints within the Tribunal’s jurisdiction, I have concluded that the only outcome must be for Case 1 to be struck out, rather than await the outcome of the Claimant’s amendment application.[14]The position here differs from the position in Reynolds, where the original unfair dismissal claim was unaffected by the Court of Appeal’s decision that the Tribunal did not have jurisdiction to decide the detriment claims. The claim could still proceed to determine that unfair dismissal claim. That live claim potentially allowed an amendment application to be considered. By contrast here, the Tribunal has decided that none of the original claims have been validly brought. The fact that there is a pending amendment application cannot save a Claim Form that the Tribunal otherwise has never had any jurisdiction to consider. This is the logical consequence of the previous orders and the order I have made as to the non-automatic unfair dismissal complaints. It is also consistent with the assumption in the argument advanced by the employer’s counsel in Reynolds at paragraph 91: “if the Claimant’s argument were correct any claimant whose complaint included more than one claim, and who had had one of those claims rejected for non-compliance with section 18A, could avoid the need to go back and invoke the early conciliation process by instead applying for permission to amend” [Emphasis added][15]The assumption underlying counsel’s proposition is that there is at least one claim that has not been rejected for non-compliance with Section 18A which could give the Tribunal scope to grant an amendment by adding a further claim. That is not the position here in relation to Case 1, where all of the original claims have been rejected. Therefore Case 1 must be struck out under Rule 38 ET Rules 2024. The scope of Case 2 and the application to amend[16]Given the outcome of the hearing conducted by Employment Judge Reid, on 27 May 2025 the Claimant issued a second ET1. This was identical to the first ET1 save that it recorded the ACAS Early Conciliation Certificate number issued on 11 February 2025. As a result, it also included an application for interim relief. This second claim was given case number 6019759/2025. As a result, there were no jurisdictional concerns about the Tribunal’s jurisdiction to decide these issues based on compliance with the Early Conciliation requirements.[17]At the hearing on 14 August 2025, Employment Judge Massarella decided that it was not open to the Claimant to renew her application for interim relief in Case 2. That issue had already been conclusively determined by Employment Judge Reid and she had subsequently rejected the Claimant’s reconsideration application. In any event, at the point at which Case 2 was issued, the time limit for claiming interim relief had long since expired. The remaining complaints raised in Case 2 were complaints of automatic unfair dismissal and sex discrimination. Case Numbers: 3200109/2025 6019759/2025 5[18]On 7 August 2025, the Claimant applied to amend her existing Cases – either Case 1 or Case 2. In order to understand the scope of the proposed amendments it is important to understand the scope of the original case as set out in Case 1 and then replicated in Case 2. It is clear that the original claim included a claim for automatic unfair dismissal, on the ground that the Claimant had made a protected disclosure. It also included an allegation that the act of dismissal was an act of direct sex discrimination in that the Respondent had chosen to dismiss her (a woman) but retain a man who would be allocated her duties. There were no complaints of pre-dismissal detriment.[19]Whilst the Claim Form used the word “victimisation”, I do not consider that it contained a claim for victimisation under Section 27 Equality Act 2010. On an analysis of the document as a whole, the word “victimisation” was used in a lay sense. There was no suggestion that the email of 4 November 2024 was being relied upon as a protected act as well as by way of protected disclosure. Nor was there any suggestion that the Claimant had previously made allegations of discrimination whether in that email or otherwise. This is likely to explain why, on advice, the amendment application sought to add a complaint of victimisation. Had the Claimant’s position been that there was already a complaint of victimisation, such an application would not have been necessary.[20]I note that Employment Judge Massarella indicated in his Case Summary of the hearing on 14 August 2025 that the original claims included allegations of victimisation. In so commenting, he was not making any decision as to the scope of the issues in those claims – apart from deciding that it was no longer open to the Claimant to bring a claim for interim relief. He did not need to do so in order to deal with the matters before him.[21]Therefore, in her amendment application of 7 August 2025, for the first time the Claimant sought to add complaints of pre-dismissal detriment and victimisation in addition to the complaints already advanced. At this hearing the Claimant confirmed she was no longer seeking to complain of pre-dismissal detriment. As a result, the only new allegation sought to be introduced by way of amendment is an allegation of victimisation contrary to Section 27 Equality Act 2010.[22]Whether an amendment should be granted to Case 2 depends on the application of the following well established legal principles governing whether to grant an amendment to add to the existing allegations in this case:a. The Tribunal has a wide discretion to grant an amendment as part of its general case management powers under Rule 30 Employment Tribunal Rules of Procedure 2024.b. Whether that discretion should be exercised in a particular case is a decision to be made in the light of all the circumstances (Selkent Bus Company Limited v Moore [1996] ICR 836). Case Numbers: 3200109/2025 6019759/2025 6c. In most cases it will be important to establish why the proposed amendment was not included in the complaint at the outset; why there has been a delay in applying for amendment; and on the degree of similarity between the original allegation and the proposed new allegation that the Claimant seeks to introduce by way of amendment (Selkent).d. If the amendment is no more than re-labelling the existing allegations with a different legal label, then there is no need to consider whether the statutory time limits may prevent the Tribunal having jurisdiction to decide the new issue on its merits (Reuters Limited v Cole UKEAT/0258/17/BA (at paragraphs 12 to 15).e. However, if it goes beyond relabelling, then the application of time limits is a further factor to be considered as part of the discretionary assessment (Selkent). The fact that time limits have expired does not prevent the Tribunal from having jurisdiction to grant an amendment (Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07; Reynolds at paragraph 94).f. The principal consideration to weigh when assessing whether to grant an amendment is the relative prejudice that will be caused to each party if the application is granted or refused (Abercrombie v AGA Rangemasters Limited [2014] ICR 209). Parties are expected to identify specific prejudice on instructions, rather than assert prejudice in general terms (Vaughan v Modality Partnership [2021] IRLR 97).g. The Tribunal should focus not merely on what the Claimant wants to include within her claim but should consider what the Claimant needs to include in her claim (Vaughan).h. If a proposed claim sought to be introduced by way of amendment is obviously a weak claim, then this is a factor that would weigh against granting the amendment. However, the Tribunal should be careful not to conduct a mini-trial to assess the strength of potential claims that will turn on disputed evidence.[23]The explanation for why the amendment application was made when it was made is that it was based on new legal advice that had been obtained on a pro bono basis from the Free Representation Unit.[24]The act of victimisation said to have been triggered by a previous protected act is the decision communicated to him on 30 January 2025 that his contract would not be extended beyond 28 February 2025. This decision was taken more than three months before the second set of proceedings was issued and over six months before the amendment application was issued. However, this is genuinely a case of relabelling. It is putting the legal label of victimisation on the same detrimental act (dismissal) which is relied upon for the automatic unfair dismissal claim. It relies on Case Numbers: 3200109/2025 6019759/2025 7 the same email communication (the email of 4 November 2024) that is already being advanced as a protected disclosure. As a result, the Tribunal will not have to consider time limits because the Claimant is able to assert that this new claim is brought on the same date as the second claim was issued.[25]In the present case, the Claimant’s case is that her email of 4 November 2024 was a protected act. Her case was that it was sent in response to the dismissal of staff working for an associated organisation (Kanlungan Filipino Consortium Association) who had brought a whistleblowing grievance. It is contained in the bundle of documents provided for use at this hearing at page 234. The entire text of the email is as follows: “I am reaching out with deep concern regarding recent events within our organization. As someone who has journeyed from service user to volunteer and now staff member of one of the member organization (SEEAWA) in the Consortium, I have seen firsthand the positive impact Kanlungan makes in the lives of those we support. However, the recent dismissal of four staff members without a fair, transparent process deeply troubles me, especially given our mission to advocate for rights and support those affected by injustice. Additionally, the democratic nomination of a new trustee has yet to be respected, placing undue responsibility on previous trustees to manage complex unresolved matters, including pending grievances and potential financial misuse. Such practices seem misaligned with our core values, and I feel a responsibility to address these issues openly rather than remain silent about the actions that undermine the integrity of our mission. I believe it is crucial that we prioritize procedural transparency and accountability. To this end, I respectfully suggest engaging with the Charity Commission and ACAS to ensure that fair employment practices are observed, and that we hold ourselves accountable to the standards we champion for others. It is disheartening to see that the very principles we stand for are being challenged within our own walls. I hope we can open a dialogue to address these concerns transparently and ensure that we continue to support each other as we work toward our shared mission. My hope is that by involving these bodies, we can restore trust, maintain integrity, and refocus on our mission with the support and commitment of all staff and stakeholders. Thank you for your attention to this pressing matter. I look forward to a resolution that honors the values we collectively uphold. Case Numbers: 3200109/2025 6019759/2025 8 Lyn Yavuz (Director) - Alaga Kita (one of the member organization in the Consortium)”[26]In the attachment to both the first and the second Claim Forms, the Claimant said that he wrote this email with “the sole aim of protecting the public from any potential wrongdoing by Consortium organisations”. That might tend to suggest it was not an allegation of discrimination.[27]The Claimant’s case advanced in the amendment application is that the “allegations contained within the disclosure relate to discrimination on the basis of sex”. The email itself makes no express allegation of discrimination. However, it appears that the Claimant will argue that this was an allegation of discrimination because the criticism of the dismissal of the four members of staff was arguably be read as implying that there are practices which are a breach of the provisions of the Equality Act 2010, and that it what was signified by alleging that there was not a fair and transparent process. Whether this is a fair reading of this email will be a matter to consider in the light of the wider context. As a result, this is not an allegation that can be said to be obviously without merit. The Respondent has not argued that this is the case.[28]The Claimant is already alleging that the decision that her contract would not extend beyond the end of February 2025 was an act of direct sex discrimination and was an automatically unfair dismissal for making a protected disclosure. However, if the Tribunal were to find that there was no sex discrimination or automatic unfair dismissal, the Claimant would be left without a remedy unless she could also argue that this was an act of victimisation. Not being able to advance such an allegation in this situation would potentially cause the Claimant prejudice. By contrast, there would be little prejudice to the Respondent in facing an additional complaint, given that it arises from the same facts as the existing complaints. No specific prejudice has been identified and advanced by the Respondent.[29]Therefore, exercising my discretion, I have decided to allow the Claimant’s amendment application. I have given case management directions and have listed a Final Hearing to determine all issues as recorded in a separate case management order.