M N Wan v J W Y Lam: 3200670/2024
JUDGMENT
The claim is struck out.REASONS
[1]The Claimant complains of unfair dismissal.[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.[5]The Claimant has confirmed that she had insufficient service and accepts that the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. As that was the only complaint brought, the case is struck out as a whole and will not proceed. Employment Judge Povey Date: 10 September 2024 Case Number: 3200670/2024 - 1 - EMPLOYMENT TRIBUNALS BETWEEN CLAIMANT RESPONDENT MAN NGA WAN V JABEZ WAI YIU LAMBackground
[7]The Claimant’s ET1 claim form, at Section 8.2, contained allegations against the Respondent which, when read holistically, went beyond unfair dismissal. In particular, allegations were made regarding the Respondent’s Case Number: 3200670/2024 - 3 - behaviour toward the Claimant and the impact it is alleged that behaviour had upon the Claimant.[8]At the initial consideration of the claim and response (pursuant to Rule 26 of the Procedure Rules), Regional Employment Judge Burgher directed that the strike out warning of 7 August 2024 be sent to the Claimant. The text of that warning was as follows (emphasis added): In your claim form one of your complaints is that you were unfairly dismissed. Under section 108 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 Judge is proposing to strike it out. This does not affect the other complaints in your claim form. You have until 21 August 2024 to give reasons in writing why your complaint of unfair dismissal should not be struck out. Meanwhile, the respondent has been told that no response to your unfair dismissal claim is necessary at this stage.[9]It is clear from the strike out warning that the Tribunal was managing the claim on the basis that it appeared to raise more than one complaint.[10]By an email dated 21 August 2024, the Claimant accepted that, due to her lack of continuous service, her complaint of unfair dismissal should be struck out. On 3 September 2024, the Claimant’s solicitors informed the Tribunal that they had been instructed and were placed on the record.[11]On 30 August 2024, the case was referred to the duty judge. On 10 September 2024, as duty judge, I issued the Judgment.[12]In my letter of 21 October 224, I set out my provisional views on the reconsider application, as follows: The Employment Judge’s provisional view is that the application to reconsider the judgment should be granted because, if as submitted, the claimant brings complaints other than unfair dismissal, only the unfair dismissal complaint is being struck out and the judgment of the Tribunal should properly reflect that (by removing reference to the whole claim being struck out). It is consistent with the overriding objective for there to be proper consideration of any other complaints which it is asserted are being pursued by the claimant… Case Number: 3200670/2024 - 4 -[13]Having now properly reviewed the correspondence detailed above, Paragraph 6 of the Judgment was premised on an error. The complaint of unfair dismissal was not the only complaint being pursued by the Claimant, as reflected in the ET1 and the strike out warning of 7 August 2024.[14]On that basis, it was both erroneous, a breach of procedure and inconsistent with the overriding objective to strike out the whole claim. It is, for those reasons, necessary in the interests of justice to vary the Judgement so that only the complaint of unfair dismissal is struck out.[15]It follows that claim as a whole is not struck out.[16]The Claimant seeks to amend the claim and add a second respondent. Those matters will be considered and determined at a Preliminary Hearing, the date and time of which will be notified to the parties and the prospective second respondent in due course.