Miss I Nickson v Kismet Kebabs Ltd: 6007591/2025
JUDGMENT
[1]The Claimant’s application to postpone today’s hearing is refused.[2]The claim is struck out.REASONS
[1]The PPH today was listed to be held by video on 1 August 2025 by EJ Gardiner at a PH attended by the Claimant. Yesterday, (8January 2026) at 15.48 the Tribunal received an email from the Claimant in the following terms: “Unfortunately I will be unable to attend the hearing tomorrow Friday 9th January 2026 @10.00 by video call. I am still recovering from ankle surgery that I had in October 2025 which left me in plaster for 7 weeks and then 2 weeks in air boot. I have only just started physiotherapy to regain muscle/strength in my ankle. Also, I am Still 18 months later, still suffering with MS Symptoms from relapse previous year which has caused me many issues over the time. This is the reason why I have not submitted paperwork to you as requested. I would kindly ask if we could postpone the hearing tomorrow to another suitable day and time.”[2]The application was not supported by any medical evidence. The Claimant has failed to explain how her claimed ankle problems could prevent her attending by video. Her claimed MS appears to be a long-term condition and to be put forward as an excuse for not having complied with directions rather than for not attending the hearing today.[3]I caused a letter to be emailed to the parties at 7.31 am today in the following terms: “Employment Judge Burns directs me to write to parties with the following: The Claimant's application to postpone the hearing on 9 January 2026 is refused as there is no medical evidence to support the application and Employment Judge Burns does not understand how ankle surgery prevents the Claimant from attending a hearing remotely by video. The hearing will be going ahead and the Claimant is requested to join it.”[4]No response by the Claimant has been received by me and she has not attended.[5]At the start of the hearing today Mr Brown confirmed that, according to his instructions, since the last hearing n 1/8/25 and prior to the Claimant’s email late yesterday afternoon, she had nor raised with the Respondent’s solicitors any health issues as reasons for non- compliance or proposed nonattendance. I have seen a short bundle of inter-partes correspondence which appears to confirm this.[6]I am not satisfied that there is any good reason for the Claimant’s nonattendance, for the lateness of her application to postpone or for any postponement. If the Claimant had any good reason she should have made any postponement application at a proper time and not on the eve of a hearing which has been listed for over 5 months.[7]Accordingly, I confirmed my refusal of the postponement application and under Rule 47 decided in the Claimant’s absence to proceed with the hearing, which had been listed to consider the following:• Should the Claimant’s claim be amended to add a complaint of automatically unfair dismissal and/or direct discrimination?• Does the Tribunal have jurisdiction to consider an unfair dismissal complaint given the operation of the statutory time limits?• Does the Tribunal have jurisdiction to consider an unfair dismissal complaint if the Claimant does not have the required two years’ continuous service?[8]If the Claimant wanted to amend her claim she had been directed on 1 August 2025 to write to the Tribunal and the Respondent by 29 August 2025:• setting out the wording she wishes to be added to the Claim Form to add a complaint of direct discrimination or of automatically unfair dismissal;• providing an explanation as to why these complaints were not included on the Claim Form when it was originally issued;• including any evidence (including medical evidence) on which she relies to explain why the complaints were not included from the beginning;• specifying what assistance the claimant has received and from whom in relation to these employment tribunal proceedings.[9]She has failed to comply with any aspect of these directions by 29/8/25 or at all. In any event I would not have permitted an amendment to introduce a section 103A ERA 1996 automatic unfair dismissal claim (which was in contemplation at the previous hearing) because(i) the Claimant stated in her ET1 that she was dismissed for making a small mistake, and not for having made a protected disclosure, (and hence such an amended clam would have little or no reasonable prospect of success) and(ii) any such claim would be significantly out of time.[10]Accordingly, any proposed amendment application falls away and I deal with the remaining questions on the basis already established at the previous PH, namely that the ET1 Claim Form issued by the Claimant identified an ordinary unfair dismissal claim only.[11]The Claimant was employed by the Respondent, a company that operates several kebab outlets, as an HR manager, from 27 March 2023 until 2 August 2024. As a result, she does not have the necessary two years’ continuous service to be able to bring a complaint of ordinary unfair dismissal.[12]Furthermore, early conciliation started on 29 October 2024 and ended on 10 December 2024. The claim form was presented on 5 March 2025. This is nearly two months outside the statutory three-month period provided by Section 111 Employment Rights Act 1996. Even if the Claimant had two years’ service, she has adduced no evidence that it was not reasonably practicable for her to present her claim in time and/or that she presented it within a reasonable period after the time limit expired.[13]The claim is outside the jurisdiction of the Tribunal and therefore has no reasonable prospect of success. I therefore strike it out under Rule 38(1)(a).