Mr K Bloomfield v Huntingdon Performance Tyres Ltd: 3316474/2021
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.[4]Therefore the claimant is not entitled to bring such a complaint.[5]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.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. _____________________________ Employment Judge Tynan Date: 18/04/2022[1]This case was listed for a Hearing to determine additional Claims brought by the Claimant. On 7 September 2021 the Claimant brought Claims against the Respondent for Unfair Dismissal and failure to pay notice pay. The Respondent entered two Responses denying the Claims and submitted that the Claimant did not have a continuous period of employment of two years or more and thus was unable to bring the Claim of Unfair Dismissal. That issue was determined by Employment Judge Tynan in his Judgment dated 18 April 2022. He struck out the Claimant’s Claim of Unfair Dismissal on the basis that the Claimant did not have two years or more continuous employment with the Respondent. The Claimant’s other Claim, failing to pay notice pay, was listed for Hearing before me[2]On the morning of the Hearing I received notice of an e-mail submitted to the Employment Tribunal on 7 June 2022 from the solicitors acting for the Claimant. They pointed out to the Tribunal that they had submitted an application for reconsideration of Employment Judge Tynan’s Judgment on 3 June 2022 and had also submitted a Notice of Appeal against that Case Number: 3316474/2021 2 Judgment to the Employment Appeal Tribunal. They indicated on that basis that neither they or the Claimant would attend today’s Hearing. As it turned out, the Respondent also did not attend and they also were not represented.[3]The only sensible course of action open to me was to stay the proceedings pending determination by Employment Judge Tynan of the Claimant’s application for reconsideration of his Judgment. Once that issue is determined further appropriate Case Management Orders can be made to finally determine any outstanding Claims. 27 July 2022 _____________________________ Employment Judge Bloom Sent to the parties on: .3 August 2022. ....................................... For the Tribunal Office. Case No: 3316474/2021 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 EMPLOYMENT TRIBUNALS Claimant: Mr K Bloomfield Respondent: Huntingdon Performance Tyres Ltd UPON THE RESPONDENT’S APPLICATION dated 3 June 2022 to reconsider the Judgment dated 23 April 2022 under rule 71 of the Employment Tribunals Rules of Procedure 2013. JUDGMENT on RECONSIDERATION[1]The Respondent’s application for an extension of time to 3 June 2021 for the Respondent to make an application for reconsideration is granted.[2]The Tribunal determines that a hearing is not necessary in the interests of justice.[3]The Tribunal further determines that it is necessary in the interests of justice to reconsider its Judgment dated 23 April 2022.[4]On reconsideration, the decision of the Tribunal to strike out the Claimant’s complaint of unfair dismissal is revoked.[1]When the complaint of unfair dismissal was struck out by Employment Judge Tynan, he was unaware that the Claimant’s solicitors had made representations in response to a strike out warning dated 28 March 2022, setting out why the Claimant was said to have sufficient qualifying length of service to bring a claim of unfair dismissal. Whilst the Respondent asserts that there was a break in the Claimant’s continuous service in or round February or March 2020, the issue is only capable of being determined by the Tribunal at a full merits hearing and having considered the entirety of the evidence. The Claimant has at least an arguable claim to sufficient qualifying length of service to be able to bring a complaint of unfair dismissal and accordingly should be permitted to have the issue determined at a hearing. The Respondent’s submissions may or may not be upheld in due course, but they do not enable the Tribunal to conclude that the Claimant has no reasonable prospect of succeeding in a complaint of unfair dismissal.[2]A hearing has not been necessary in the interests of justice since it is clear on the face of the papers that there is a legitimate issue to be determined as to the Claimant’s length of continuous service. It is necessary in the interests of justice to reconsider the Judgment striking out the unfair dismissal complaint. On reconsideration, the Judgement is revoked. Case No: 3316474/2021 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73[3]The Tribunal will make further case management orders and list the case for a final hearing.