Mr K Baileche v Tariq Halal Meat Wholesale Ltd: 6009340/2024
JUDGMENT
The judgment of the Tribunal is as follows: Strike out of claim[1]The complaint of Unfair Dismissal/Constructive dismissal is struck out for want of Jurisdiction under Section 111 of the Employment Rights Act 1996.[2]On the grounds that at the date of the claim 23 August 2025, the claimant was still employedREASONS
The claim
[1]The Tribunal has determined that there is no reasonable prospect of the original decision being varied or revoked, because at the time that the claimant issued his claim for unfair dismissal (constructive dismissal he was still an employee of the respondent.[2]The claimant who was employed as a delivery driver by the Respondent, a wholesaler of meat products. The claimant was employed on a part-time contract and worked flexible hours.[3]On 14 June 2024, the claimant submitted a claim to ACAS. The final ACAS certificate was issued on 26 July 2024. On 23 August 2024 the claimant issued his claim for Unfair Dismissal, Race Discrimination and Unlawful deduction of wages.[4]The Tribunal found that on 23 August 2024, although the claimant had been signed off sick from his place of work, we remained an employee of the respondent. The Tribunal found that on 29 August 2024, the claimant was offered shifts by the respondent and it was at that point that he resigned by email. At the hearing the facts of the claimants resignation were not in dispute.[5]Section 111 of the Employment Rights Act 1996 provides that a claim must be presented within 3 months beginning with the effective date of termination. Accordingly, the claimant had not resigned prior to bringing his claim.[6]As the claim was brought before the claimant’s effective termination the Tribunal had no jurisdiction to consider the claim.[7]The claimant in his request for reconsideration of the decision stated that “I am a litigant in person with English as a second language. I acted in good Case No: 6009340/2024 11.6C Judgment – Reconsideration refused – claimant - rule 72 faith and without legal representation, urgently submitting my claim to preserve my rights. I was unaware of the procedural requirements to resign before submission.”[8]The Tribunal having considered his request for reconsideration are satisfied that the request does not include any new grounds which undermine the Tribunal’s decision.[9]Accordingly, the request for reconsideration is refused _____________________________ Employment Judge Judge's Daley Date: 9/9/2025[1]The claimant’s claim was for unfair dismissal and race discrimination, and unlawful deduction of wages. The claimant’s claim was brought under Section 13 (I) and Section 94 of the Employment Rights Act 1996.[2]The claimant was employed as a delivery driver by the Respondent, a wholesaler of Halal meat products. The claimant was employed on a part-time contract and worked flexible hours.[3]The claimant’s claim is that he was constructively dismissed and was discriminated against in that he was treated unfairly during an investigation and subsequent suspension on the grounds of his race.[4]The respondent denied the claimant’s claim in its entirety asserting that the claimant was still an employee when he brought his claim for constructive dismissal. The respondent also denies the claim for race discrimination and for unlawful deduction of wages. The respondent also counterclaims for £1800 on account of damage to the respondent’s van.The Background
[5]The claimant was employed under an oral contract in or about 2021 which was superseded by a written contract dated 21 April 2022.[6]The terms of the claimant’s contact in respect of his hours of work were as follows-:[7]Hours of Work and Pay “You have been employed on a part-time basis. You have been informed your hours will vary dependent on when you are required, and you will be informed via a telephone call of your presence required no later than 24 hours before if this has not already been planned…”[8]The claimant relies upon the following incidents. He states that on 7 January 2023 that he was assaulted by his manager Mr. Sunhil Rashid; in early May 2023 there was a discrepancy in his wages in that he was underpaid. On 22 May 2024 he was accused of mishandling money, and that the subsequent investigation was held in Urdu, a language which he does not understand. He stated that in response to his written complaint concerning this incident, his hours were reduced.[9]In July 2023, he was signed off sick due to stress which he alleges was caused by the situation.[10]The Respondent denies the allegations, and makes a counterclaim, which has not been set out here as it is not material to the decision before the Tribunal.[11]The claimant claims that his sick leave ended on 1 August 2024, however he was not scheduled to return to work until 22 August 2025. The claimant claims that he resigned on that date. Case Number: 60093/2024 3 Procedural issues[12]On 14 June 2024, the claimant applied to ACAS early conciliation on the grounds of race discrimination and unlawful deduction of wages. The early conciliation period ended on 26.07.24 and a certificate was granted.[13]The claimant issued his ET 1 on 23 August 2024. the claimant’s claim was on the grounds of unfair dismissal (the claimant’s claim was that he was constructively dismissed), race discrimination and unlawful deduction of wages.[14]On 29 August 2024, the claimant wrote to the respondent by email on Thu 29 August at 8.59 am as follows-: “Please accept this letter as my formal resignation from Tariq Halal Meats Limited. Although several days have passed since my initial decision to resign, I am now formally documenting this. My resignation is due to a series of unresolved issues that have made it untenable for me to continue in my position, including:• The 22-day delay in scheduling my shifts following my return from sick leave.• The reduction in my work hours during June and July.• Retaliation after raising concerns about unpaid overtime and unlawful wage deductions.[15]On 25 September 2024 the respondent served their ET3 and Grounds of Resistance.[16]The matter was listed for a case management hearing on 14 February 2024 to determine the issues below. At the hearing the Judge made the following direction-: A further public preliminary hearing will take place at Watford Employment Tribunal on 19 May 2025. The case will be heard by an Employment Judge...The hearing will be a public hearing, and so the Employment Judge will have the ability to strike out claims (or part of claims) or responses (or parts of responses). The hearing will be to decided applications by the Claimant and the Respondent and to set case management orders for the progression of the matter to final determination.”The Issues
[17]The issues have been set out as I understood then to be, and which I consider relevant, in reaching this decision.• Whether the Tribunal has Jurisdiction to hear the claimant’s claim for unfair dismissal. Case Number: 60093/2024 4 The Hearing AttendanceThe Hearing
[18]The hearing was held at Wafford Employment Tribunal. The claimant Mr Baileche represented himself. The respondent was represented by Mr Gray Counsel.The Evidence
[19]The Tribunal was provided with a bundle of 112 pages from the respondent, the hearing bundle. Mr Adam referred the Tribunal to the emails which had been exchanged between the parties concerning the claimant's resignation, he told the Tribunal that the claim was presented prior to the claimant’s resignation.[20]He also referred to Section 111(3) of the Employment Rights Act 1996 which set out that a claim for unfair dismissal which permits an employee to present a claim once notice of termination has been given but prior to the effective date of termination.[21]He submitted that the factual background was that the claim form was presented before the claimant’s resignation. Accordingly, the claim was presented prematurely. He told the Tribunal that the claimant’s resignation was not clear or unequivocal. He said that in accordance with offer and acceptance, something must be said or done which makes it clear that the claimant was going to resign and, on the facts, this was not the case.[22]He referred the Tribunal to the following cases Mr Clutch Auto Centres –v- Blakemore UKEAT/0509/13/LA and The Governing Body of Wishmore cross School v Balado UKEAT/0199/11/CEA. He also referred to Chitty on Contract[23]The claimant set out the background to his claim he stated that he had applied to ACAS because of the respondent’s treatment of him. He stated that he was aware that he needed to bring his claim within 3 months, and that the claim should be brought within a month of the ACAS certificate. However, in any event he stated that he resigned on 22 August 2025 as he did not accept the shift which was offered to him and that this resignation was formalised by his email on 29 August 2024.[24]The Law and the issues Complaints to employment tribunal (1)A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) subject to the following provisions of this section], an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a)before the end of the period of three months beginning with the effective date of termination, or Case Number: 60093/2024 5 (b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. 2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a). (3) Where a dismissal is with notice, an employment tribunal] shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination. . Whether the claimant has jurisdiction to bring unfair dismissal proceedings.[25]The Tribunal’s decision relates to the claimants claim for unfair dismissal only. The Tribunal’s findings of facts[26]The Claimant was employed in February 2021 as a delivery driver by the respondent, The Tribunal finds that in June 2024 the claimant applied to ACAS for race discrimination and unlawful deduction of wages, at that time he had been signed off sick and as a result was not undertaking shifts. There were also discussions with his employer about whether he was fit to return to work as a delivery driver and the nature of the work he would be able to undertake on his return.[27]The Tribunal finds that on 23 August 2024 he issued a claim not only for race discrimination and unlawful deduction of wages, but also unfair dismissal, by way of constructive dismissal[28]On 29 August 2024, he was offered shifts by the respondent. He replied by saying that “he had already resigned”.[29]The Tribunal finds that prior to the 29 August 2024; the claimant had not offered his resignation neither had he been dismissed by the respondent. The Tribunal finds that the first act of the claimant which was unequivocally a resignation was the email that he sent on 29 August 2024.[30]The claimant in his evidence agrees that this occurred he cites that he was unfamiliar with the law and was concerned about bringing his case in time.[31]The Tribunal considered Section 111 of the ERA 1996, this states that the claim must be presented within 3 months beginning with the effective date of termination. The Tribunal noted that Mr Adams referred to case law, however the Tribunal did not find it necessary to refer to these cases as the position was clearly set out in Section 111 of the ERA 1996.[32]The Tribunal finds that the respondent was unaware of the claimant's resignation until 29 August 2024 and that at the time when the claimant brought his claim for unfair dismissal whilst he was still an employee[33]Accordingly, the Tribunal finds that as the claimant was still employed his claim was premature and as such not within Section 111 of the Employment Rights Act 1996.[34]As the Tribunal lacks jurisdiction to consider his claim, his claim for unfair dismissal is dismissed for want of jurisdiction. Case Number: 60093/2024 6