Mr I Zulfiqar v Sainsbury’s Supermarkets Ltd: 3313328/2023 and 3303516/24
EMPLOYMENT TRIBUNALS
Case No 3313328/2023, 3303516/2024
Between
Mr I ZulfiqarClaimantSainsbury’s Supermarkets LtdRespondent
Before
Employment Judge AndersonIn person for claimantA Bachu (instructed by counsel) for respondentDate 19 December 2024
JUDGMENT
[1]The claimant’s claim of unfair dismissal is dismissed as the tribunal has no jurisdiction to hear it following the reinstatement of the claimant’s employment on an internal appeal.[2]The claimant’s claims of breach of contract relating to(i) excessive working hours and(ii) breach of a mobility clause are dismissed as the claimant is still in employment and the tribunal has no jurisdiction to hear the claims.
REASONS
[1]This case came before me today for consideration of applications by the respondent to strike out part of the claimant’s claims. The claimant has filed two claims, 3313328/2023 and 3303516/2024. The applications are to strike out claims of unfair dismissal and breach of contract brought under claim no: 3313328/2023, and a claim of breach of contract brought under 3303516/2024.[2]The application to strike out the unfair dismissal claim was made within the grounds of claim filed on 27 February 2024, reiterated in the amended grounds dated 8 November 2024 and was also discussed at a preliminary hearing on 13 September 2024.[3]The application to strike out the breach of contract allegation raised in the first claim (that the claimant was required to work excess hours) was first made in the amended grounds to both claims filed on 8 November 2024. The application to strike out the breach of contract allegation raised in the second claim (that the respondent was in breach of the mobility clause in the claimant’s contract) was first made by the respondent today in written submissions filed at 10 am, and orally. However, the matter of striking out that breach of contract claim was addressed by EJ Dick in the case management hearing on 13 September 2024 and recorded in the case management order at paragraph 5.[4]It is also relevant to the applications that EJ Dick raised at that hearing a question as to whether, when the claimant was reinstated, a new contract was imposed on him unilaterally. He referred to the cases of Jackson v University Hospitals of North Midlands NHS Trust 2023 EAT 102 and Hogg v Dover College EAT 1990 ICR 39.[5]I was provided with a bundle of 145 pages, as well as written submissions form Mr Bachu. He also filed two authorities: Jackson, as referred to above, and Marangakis v Iceland Foods Ltd [2022] EAT 161. Both parties made oral submissions on the application. The claimant referred to two further cases. The first was Salmon v Castlebeck Care (Teesdale) Ltd. The claimant gave as a reference the year 2015. He was unable to provide a copy. A search brought up a case of that name with the reference UKEAT/0304/14 which was on the subject to of reinstatement The second was Hawes and Curtis v Arfan UKEAT/0126/11. I had regard to all four cases.[6]The claimant was dismissed by the respondent for gross misconduct on 11 October 2023. He appealed his dismissal. The appeal was partly upheld, and the claimant was reinstated from 5 January 2024. He was paid for the period 11 October 2023 to 5 January 2024. The claimant pursues the claim for unfair dismissal because, he says, the impacts of the dismissal are ongoing. He says that he suffered stress and mental ill health because of it. He also states that he has been transferred to another store on reinstatement which is a breach of his contract, and further, before that, he was asked to work excess hours, also a breach of his contract. In addition, the claimant brings claims of disability discrimination and whistleblowing which are not the subject of the strike out application and therefore not relevant to this decision.[7]The respondent’s application is for strike out of the unfair dismissal claim on the grounds that the claimant was reinstated on appeal, so there is no dismissal, and the tribunal has no jurisdiction to hear such a claim. Further it says that the tribunal has no jurisdiction to hear a breach of contract claim where the claimant is still employed by it.[8]On unfair dismissal Mr Bachu relied on the case of Marangakis, particularly paragraphs 14 and 17 where HHJ Tayleur sets out:[14]The concept of a ‘varnishing dismissal’, on an appeal succeeding, is of long standing. If a person appeals against dismissal, succeeds in the appeal and is reinstated, the original dismissal ‘disappears’, with the consequence that it cannot then found a claim of unfair dismissal. The legal underpinning of this concept has not always been clear.[17]Thus if an appeal is lodged, pursued to its conclusion and is successful, the employer and employee are bound to treat the dismissal as not having occurred irrespective of what the employee’s subjective wishes may have been in instituting and prosecuting the appeal. The fact that an employee may not wish to return to work for the employer does not mean that pursuing an appeal to it's conclusion does not automatically result in reinstatement into employment…. 9. Mr Bachu addressed the remarks of EJ Dick regarding Hogg v Dover type cases by noting that this cases deal with situations where in reality, an employee’s contract is terminated and replaced with another one. He said that in this case the first claim (filed before the appeal decision was made) is a claim against the dismissal on 11 October and not a claim about a variation of contract. He said that the second claim does not allege any further dismissal and is about disability discrimination. The claimant has not alleged that placing him in a different store was a variation sufficient to amount to a dismissal. The respondent included in the bundle a copy of the claimant’s contract which has a mobility clause. 10. On the two breach of contract claims Mr Bachu refers to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623 by which the tribunal’s limited jurisdiction to hear a breach of contract was extended. That extension applied to certain alleged breaches and only ‘if the claim arises or is outstanding on the termination of the employee’s employment.’ 11. The claimant referred to two cases that he said supported his view that while a dismissal may vanish on reinstatement that does not erase the consequences where the dismissal has caused harm or emotional distress, and that there is a need to examine ongoing detriment and consider whether or not the reinstatement cured the dismissal. The claimant did not have copies of those judgments, and I located them through a case search, the references are shown above. I did not agree with the claimant that those points were made in those judgments, but I did give consideration to the submissions in any event when deliberating. 12. Under Rule 37 of the Employment Tribunal Rules a claim can be struck out if the tribunal concludes that it has no reasonable prospect of success. Under Rule 39, deposit orders can be made in respect of any allegation that has little reasonable prospect of success. 13. When considering whether to strike out a claim brought by a litigant in person, guidance for tribunals is set out in the case of Cox v Adecco Group UK & Ireland and Ors 2021 ICR 1307, EAT. Mr Bachu referred to this case in his submissions drawing attention to the guidance that the claimant’s case should be taken an its highest and where there are disputes of fact strike out is generally not appropriate. I note that this application is not one that turns on undisputed facts. Both limbs of the application relate to jurisdictional matters. 14. Looking at ordinary unfair dismissal first, there is a clear line of authorities flowing from the case of Roberts v West Coast Trains Ltd 2004 ICR 254 CA in which it was held that where an appeal leads to a sanctions other than dismissal the contract of employment is revived, and this was most recently set out in Marangakis in the EAT as referred to above. In this case the claimant appealed his dismissal, and he was reinstated. 15. This is not in my view a Hogg v Dover type case, the only issue raised by the claimant being that his travel to work is longer than an hour which he claims to be a breach of the mobility case. More importantly the claimant has not raised such an allegation in his grounds of claim, further particulars or in his submissions today, though it was raised by EJ Dick in his presence on 13 September 2024. The claimant’s submissions are that the detrimental effects of the dismissal are ongoing, and that account should have been taken of his disability in moving him to another store with different hours. He made the point that the dismissal should not vanish but in the context of the explanation that this was because of the ongoing effects on him of the dismissal. He has not raised a claim of unfair dismissal in his second claim, brought subsequent to his reinstatement. 16. There is no dispute between the parties that the claimant was dismissed and that he was then reinstated, or that his contract continues. For this reason, the tribunal has no jurisdiction to hear a claim of unfair dismissal, and the claim of unfair dismissal is dismissed. 17. As the claimant is employed by the respondent and the effect of his reinstatement was to revive his contract of employment so that his employment was continuous, then the tribunal has no jurisdiction to hear a breach of contract claim as such claims are specifically excluded by the Extension of Jurisdiction (England and Wales) Order where the claimant remains employed.[18]To be clear, although the application was brought as a strike out application, it does not fall for consideration of strike out under Rule 37 as I have found that the tribunal does not have jurisdiction in these two claims. They are therefore dismissed rather than struck out. If I am wrong about that then it is my view that the claims should be struck out as having no reasonable prospects of success. The second breach of contract claim could not succeed in any event as it was brought after reinstatement, so when the claimant was employed. The first breach of contract claim could only succeed if the claimant was dismissed. There is no reasonable prospect of the claimant showing that in moving him to another store, where his journey time is sometimes longer than one hour, a unilateral variation in contract amounting to a termination took place, where he has not pleaded that, either previously in these proceedings, or today in response to the respondent’s application. His argument was very clearly that the impact of the dismissal on him continued, and that the respondent was in breach of the mobility clause due to journey times, a breach that did not lead him to resign.[19]The claimant still has live claims in whistle blowing and disability discrimination which address many of the same allegations raised in connection with the dismissal and breach of contract claims.